Professional Qualifications Bill [HL]

Lord Foulkes of Cumnock Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

39: Clause 7, page 4, line 41, at end insert—
“(d) publish advice and information about immigration requirements for entry to the United Kingdom for purposes of practising a regulated profession.”

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, there have been a number of interesting debates today, and this is an important one. This amendment requires the Secretary of State to make arrangements for the assistance centre to give information about visa and work permit requirements. In a previous debate, the noble Lord the Minister—the noble Baroness the Minister is answering this debate—told us that the assistance centre is up and running. Clause 7 provides for the assistance centre, which is there to facilitate transparency on the recognition and regulation of professional qualifications in the United Kingdom, to provide advice and assistance to UK qualified professionals who want their publications and experience to be recognised overseas, and to publish certain advice and information.

I agree with the Law Society of Scotland, which drafted this amendment for me, that it would be important for the assessment centre also to provide advice and information about visa and work permit requirements for entry to the UK for employment and other related purposes. At present, the UK Centre for Professional Qualifications—UK CPQ—which is managed by Ecctis, provides advice and information across the UK on recognition of professional qualifications in an international context in the UK and abroad. Clause 7 provides the statutory basis for that service.

The UK CPQ does not provide advice or information about visa and work permit requirements for entry to the UK; nor does it signpost to relevant advice and information on immigration matters. There is another body, the UK national agency for international qualifications and skills—UK ENIC—which is also managed by Ecctis. Visitors to its website, who wish to see information about visa and nationality matters, are directed to the Home Office. I do not need to tell the Committee that that is not the most helpful advice to give to anyone. That there is a choice of bodies with similar names operating in the same sphere and run by the same entity must be confusing to an individual from abroad who wants to have their qualification recognised but also to obtain the basis for employment in the UK; namely, a visa or work permit.

I agree with the Law Society of Scotland’s view that it would be much better and more cohesive were the assistance centre more of a one-stop shop, in respect of the benefits of offering a joined-up service to nationals of other countries seeking to requalify and potentially establish themselves in the UK. This amendment will help achieve that. I agree with the Law Society’s view that the Long Title of the Bill is broad enough to bring such functions within the ambit of the assistance centre. Perhaps between now and Report, the Minister—who I know is a very helpful Minister—could make inquiries about whether such a provision could be included in amendments later in the Bill’s passage. In the meantime, by making this point, I hope that the Government will agree that there would be practical and reputational benefits of offering comprehensive advice and assistance to international colleagues.

That deals with Amendment 39. Amendments 44 and 50 are also in my name. I will not press them, because we dealt with the same principle on a previous amendment. Members who were there will recall that I passed on the responsibility to my friend, the noble and learned Lord, Lord Hope, who sadly cannot be with us today. What he explained then applies to this amendment equally well. The points made by the Minister and the noble Lord, Lord Lansley, were helpful, particularly the Minister’s assurance that the regulator is not required to make the disclosure if that would contravene the data protection legislation. It was very helpful to have that clarified. The noble and learned Lord, Lord Hope, and I put on record our thanks to the Minister. I beg to move.

[Lord Fox (LD)]

My Lords, it is always a pleasure to follow my near namesake, the noble Lord, Lord Foulkes, and endorse his words. This group contains a number of different amendments. I will focus on Amendment 43 in my name, but that does not indicate that I do not support elements of the others.

I have done what the noble Baroness, Lady Noakes, advises against, which is to table an amendment to one element of this clause in order to speak to a larger confusion that I have. This is a probing amendment, but the real point is: what is this centre for and why will it operate as it does? We have established a few facts at Second Reading and through previous amendments, so we know that the Government foresee one overarching centre rather than four national ones, and to do this, the Minister has painted a picture of two people and a website—a landing page. Forgive me, but this is a website requiring 48 lines of primary legislation, so it must have some importance in the mind of the Government to go to this much trouble when it replaces what was a sentence in an EU directive, which is the previous assistance centre. So much for red tape. We have 48 lines of primary legislation to establish a website run by two people.

My amendment leaves out Clause 7(4), which deals with disclosing information. Clearly, it reinforces that certain information cannot be disclosed, but to whom will this information be disclosed? It paints a picture of the collection and dispersing of individuals’ data, so what is the point? Why is it there? What data is it—whose stuff? I do not understand what it is for. I understood that it was to point people in certain directions. This is saying that it is a requirement to disperse data, but what data, and to whom? That is the central reason why I have put my name to this amendment. Of course, if it is collecting important data, it would be nice to know that it is doing so properly, so the terms of this subsection are of course correct, but we need to know why this centre is being set up as it is and what on earth it is for.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

Providing a statutory basis for the continued existence of an assistance centre places a duty on competent authorities to co-operate with it. This is to ensure that the assistance centre has the necessary information to help support the delivery of its functions, rather than relying on voluntary information-sharing arrangements. In a practical sense, it provides a signposting system through its website. It also has a telephone answering service, which dealt with my question this morning about the need for English language skills for particular professions. It answered the question very carefully and properly by saying that that was not part of its remit and I needed to talk to the visa requirements section. The centre is at least directing you to where you need to go for your questions to be answered.

The legislation also requires that the assistance centre provides information to the Secretary of State when requested. As I said, this is not onerous information, but it is an important requirement, as the Secretary of State has a responsibility for the wider recognition of professional qualifications principles. Lastly, its existence in legislation helps validate the credibility of the assistance centre for engagement with its overseas counterparts.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, a lot of interesting things have emerged during this debate. The noble Baroness, Lady Noakes, my noble friend Lady Hayter and the noble Baroness, Lady Randerson, seem to have set up a new all-party group—friends of Google. I warn them to be careful and alert them to the fact that if you Google something you will find at the very top of the list people who have paid to come top of that list. If you look, for example, at getting a Covid test, you will find that the ones that you pay for are right at the top and the free ones are down at the bottom. Beware of Google—and other equivalents—because they do not necessarily give you the best advice.

The Minister has been very helpful in her response. However, some things still need teasing out as far as the assistance centre is concerned. I would argue still that the visa and admission regulations that I am suggesting would enhance its role. It was suggested by the noble Baroness, Lady Randerson, that the functions it is dealing with now might be better dealt with at a devolved level. As she knows, I am a very strong devolutionist. Immigration, visa regulations and other regulations are not devolved. Therefore, that would give the assistance centre a little more credibility.

However, my noble friend Lady Hayter has a good point: does it need to be statutory? I think you can have an assistance centre working very effectively without it having to be on the face of the Bill. Often, we argue strongly that things should be on the face of a Bill, and we get rebuffed, but I am not sure the case has yet been made for it to be statutory.

When I was a Minister, I used to tell officials and civil servants to go back and think again from time to time. I ask that both Ministers—the noble Lord, Lord Grimstone, and the noble Baroness, who has replied so eloquently to this debate—perhaps have another look afterwards, in the cold light of tomorrow morning, and go back to the department and say, “Wait a minute. Some valid points have been raised”. That is what these sessions of Committee and Report are about—going back to the department. Perhaps it could be arranged for some of us to be given more information and some direct contact with the centre. There are things that can be done between now and Report that would make the Bill much better and make it more likely for us to get consensus when we get to Report. I hope the Minister will be able to do that. She is nodding nicely to me as always. With that, I will withdraw the amendment.

Amendment 39 withdrawn.

Professional Qualifications Bill [HL]

Lord Foulkes of Cumnock Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, like the noble Lord, Lord Lansley—who, following the revelations from the noble Baroness, Lady Noakes, I suppose I should now call my noble friend Lord Lansley—I did not participate in the Second Reading debate, as I was not able to be here, unfortunately. I agree with many people who said on that occasion that, although this is not a contentious Bill, it is a very important one. When you think of the number of professional bodies and areas of employment that are being regulated—more than 160—it is really a very important issue. I will come back to that.

However, I have sat through now two and three-quarter hours of what purports to be a Committee stage of the Bill. I must say that it is really a very disappointing and inadequate way of dealing with a Bill. It is not proper consideration when we cannot intervene properly and ask questions when the Minister is speaking and cannot intervene on each other. I would have liked to have intervened on the noble Lord, Lord Purvis. We could have had a dialogue about the Privy Council, of which I am a member. I know nothing about any of these matters because it is all delegated to various committees of the Privy Council. We could have maybe explored that.

There are other issues. The noble Lord’s predecessor in the Chair, the noble Lord, Lord Faulkner of Worcester, was very good and allowed the noble Lord, Lord Lansley, to come in without having to go through the process of emailing the Clerk. I think the noble Lord, Lord Purvis, managed to whisper in the Clerk’s ear. It is excellent that there is some flexibility, but it ought to be more flexible. We ought to have a proper Committee stage. The interesting thing is that most of the people participating have been here in person. There are relatively few today in this Committee stage on the screens. That is why I think that the Procedure Committee and the usual channels need to carefully consider changing the arrangements for Committee and Report stages, which are so important in dealing with aspects of Bills.

It was a fascinating exchange earlier between the noble Baroness, Lady Noakes, and the Minister. Under normal circumstances, there would have been a different kind of dynamic arising from that exchange. It could have been much more helpful in dealing with this Bill. At the moment, because everyone has to be dealt with equally—whether they are at home, as I was on a number of occasions, or here—we cannot have a proper Committee stage. One of my colleagues, the noble Lord, Lord Campbell-Savours, has suggested that we do away with that equality and the Procedure Committee should say that, for Committee and Report stages, certainly, those who are present should be able to operate normally as we used to do and that people at home should accept that and understand that. If they want to participate, they should be able to come here in one way or another. I really think that, in terms of considering our legislation properly, we need to look at that. That is nothing to do with the amendment, by the way, but it is very important.

Can I also say another thing that I would have said in Committee? As my noble friend Lady Hayter said earlier, there has been a lack of investment in training of doctors and nurses—over the last 10 years, in particular —so that we do not have home-trained doctors and nurses. I worry that some of the motivation of some people in the Government behind this—not everyone—is to bring in doctors and nurses from overseas as quickly as possible to make up for the fact that they have not been training enough doctors and nurses. As someone who has been involved in overseas development for years now—I used to be Minister in that department and now we are suffering that huge cut in our overseas development assistance—I think it would be wrong for us to drag in too many people and to see this as a way of bringing in too many doctors and nurses from overseas from countries that need them equally as much as, if not more than, we do, and which need their health infrastructure strengthened. That is nothing to do with amendment either, but it gets it off my chest.

The amendment would require the Secretary of State to seek the consent of the devolved Administrations —but with qualifications, I say to the noble Baroness, Lady McIntosh of Pickering—prior to making arrangements for the assistance centre. We welcome the provisions regarding the assistance centre; I speak on my own behalf, but I know, as does the noble Baroness, that the Law Society of Scotland welcomes it. Like her, I am grateful to Michael Clancy and his colleagues from the Law Society of Scotland for their help on these amendments.

The centre will provide advice and assistance regarding entry requirements—we will come to other aspects of it later—to those seeking to practise a profession in the United Kingdom or to those with UK qualifications seeking to practise overseas. We note the obligation on regulators, contained in Clause 7(2), to provide the designated assistance centre with any information it may need to carry out its functions. That seems entirely appropriate in the circumstances.

The obligation to make arrangements for the assistance centre lies on the Secretary of State. However, the centre will provide advice and assistance covering the whole of the United Kingdom, not just England. Accordingly, we consider that it would be important, and reflect the acknowledgement of the role of the devolved Administrations in earlier clauses of the Bill, for the devolved Administrations to be rather more than consulted on the arrangements for the creation of the assistance centre.

What I suggest in the amendment, as the noble Baroness, Lady McIntosh, generously said, goes further and is more radical than the amendment she has proposed. However, it would not give the devolved Administrations a veto; it says that the Secretary of State—should first “seek the consent” of the Scottish and Welsh Ministers and department in Northern Ireland; that is where I go further. If the Government do not get that consent within a month—it gives the devolved Administrations a veto or delaying power of a month—they can still go ahead. But if they do, notwithstanding the fact that they have not got approval from the devolved Administrations, they then have to publish a statement explaining why the Secretary of State decided to make the arrangements without the consent of the authority or authorities concerned. They have to explain why they have not taken account of representations before going ahead.

I say to my friend, the noble and learned Lord, Lord Hope, who knows more about the United Kingdom Internal Market Act than anyone around today, that this replicates the compromise that was agreed in that Act when we discussed it as a Bill in relation to, for example, the CMA and other aspects. Does the Minister consider that my amendment would have the same effect as the Government have already agreed in relation to the internal market Act? It is not revolutionary; it is more radical than the amendment of the noble Baroness, Lady McIntosh, but it is something that the Government have already agreed to in terms of the internal market Act. I therefore hope that it will be considered sympathetically by the Government.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

Just for clarification, if a Member wishes to speak after the Minister and is in the Chamber, they can message the clerk; if they are online, they can email the clerk. But all requests must come through the clerk to the Chair. I call the noble Baroness, Lady Randerson.

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[Lord Foulkes of Cumnock (Lab Co-op)]

Yes.

[Baroness Hayter of Kentish Town (Lab)]

I thought he might. I think he can probably expect us to support him in that.

Amendment 49, which is in my name and that of the noble Baroness, Lady Randerson, would specifically allow the common framework approach, which we have been discussing, to trump the use of these powers in instances where the common framework procedure is developing a mutual recognition of professional qualifications framework. As we have heard, in its update covering the fourth quarter of last year, the Cabinet Office reported that discussions on the MRPQ framework had made progress, though the development timelines have had to be extended. As the Government and the devolved Administrations want the MRPQ framework to be completed, we want nothing from this Bill to be done outside of its remit.

The significance of how the devolved authorities are treated in this Bill has ramifications beyond the issue with which we are concerned today, which is the regulation of professional qualifications. I urge the Minister to engage with the relevant Ministers in the devolved Governments and do everything in his power at least to shore up, and hopefully strengthen, devolution rather than undermine it.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that the Government are chipping away at the devolution settlement; I think that that is what the noble and learned Lord, Lord Hope, was referring to when he talked about collateral damage. Something that happens in this Bill is chipping away at a really important part of the devolution settlement. I must ask the Minister whether he understands that. Does he understand those feelings? If so, does he feel an obligation, for the sake of the union, to amend the Bill to alleviate these concerns? I hope that we will hear a thoughtful and positive response from him on this.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I accept the point made by the noble Baroness about the assistance centre. In response to her other points, many things have surprised me since I became a Minister, so I am no longer surprised by them.

I should add that my officials have been in very regular contact about this with officials in the devolved Administrations. I have pulled out the Bill date as a specific one, but of course officials have been working hard on this for some time, right back to the call for evidence that was asked for last year. A lot of consultation has been going on, but again it is the complexity of this Bill that has led to perhaps there still being some rough edges, which I think the debates in our House are helping to iron out.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, like the noble Baroness, Lady Randerson, I am interested in the revelation that the Minister saw the Bill only eight days before the devolved Administrations, Can the Minister tell us which Minister supervised the drafting of the Bill?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am the Minister responsible for the Bill and the policy; I am not just the Lords spokesman on the Bill. Of course, the work that goes on before a Bill appears on one’s desk is enormous: instructions to parliamentary counsel, development of the policy and so on. I am the policy Minister in relation to this Bill as well as the Minister who has the pleasure of addressing your Lordships’ House on the matter.

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Moved by

[Lord Foulkes of Cumnock]

14: Clause 1, page 2, line 23, at end insert—
“(5A) The appropriate national authority must consult such persons as it considers appropriate when preparing regulations under subsection (1).”

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I am very pleased to move Amendment 14, which would require the Secretary of State, the Scottish and Welsh Ministers, and the Northern Ireland department to consult when preparing regulations under Clause 1. A number of noble Lords have said that it is important that the UK Government consult the devolved Administrations. It is equally important that the devolved Administrations themselves consult the bodies affected. Sometimes they are quite good at that; sometimes not. It is therefore important that we make it clear that this is a requirement. At Second Reading, the noble and learned Lord, Lord Hope, pointed out the need for consultation by the appropriate national authorities when preparing regulations. Both the Law Society and I agree strongly with those comments, and on the need for consultation on draft regulations under the Bill. As colleagues have said on a number of other occasions, this is a very important and wide-ranging measure which affects a considerable number of professions—160 as stated in the Explanatory Notes and as other noble Lords have said earlier.

Government across the UK does not possess the in-depth knowledge that would enable it to legislate unless it has such pre-legislative consultation. The Minister said that he would

“anticipate that determining whether professions meet this condition would require extensive close working”.—[Official Report, 25/5/21; col. 974.]

BEIS has made it clear in its engagement with stakeholders such as the Law Society of Scotland that it agrees that it is important for the Government to engage extensively with a range of interested parties before legislating. BEIS may argue that it is already well established that Governments need to consult before making secondary legislation, including through the government consultation principles of 2018, so there is no need to legislate for this. That may be so, but I am not so sure. In a number of recent Acts, the Government have nevertheless expressly legislated for consultation duties such as these.

We certainly agree that aspects of the Bill will require close working between the Government and a range of interested parties, including the professions. However, “close working” does not necessarily include statutory consultation. We also know that legislation has a particular way of concentrating Ministers’ minds in a way which published guidelines do not. That may be why legislation as diverse as the Fire and Rescue Services Act 2004 and the United Kingdom Internal Market Act 2020 have provisions which oblige the Secretary of State to consult before making orders or regulations. That statutory duty to consult is vital; it puts pressure on Ministers much more effectively than any guidelines. I therefore hope that the Government will seriously consider this amendment. I beg to move.

[Lord Palmer of Childs Hill (LD)]

My Lords, I apologise that what I am going to say has nothing to do with devolved Administrations, because the Bill obviously affects them greatly. The Bill is a law of unintended consequences. It has been described as having been written on the back of an envelope; that envelope has got a lot of writing all over it by now. Amendment 52, to which I have attached my name, is about how many organisations have not realised, and still do not realise, the impact of the Bill. They think: “Professional qualifications; that does not really worry us”. Many noble Lords have had consultations with large organisations, chartered organisations and the like, all of which have given us their opinion. Some have given us their opinion twice because they have changed it. However, small and medium-sized enterprises have not been consulted at all. They have probably not even known that this Bill exists and how it is going to affect them—how it is going to impact on the qualifications of their workforce and whether they are going to have problems with their workforce. When I talk about small and medium-sized enterprises, I mean those with one to 50 employees. If they have problems recruiting now, how will it be afterwards?

As the Bill seems to have been created on the hop, without thinking too much about some of the detail, we now come to trying to mop up a Bill which has not been terribly well thought out in the beginning. We have to look at how to rectify that after the Bill becomes an Act. My Amendment 52 is about the Government committing to there being a report back within 12 months of the Act being passed, particularly in relation to small and medium-sized enterprises. By then, they will have realised the impact of the Bill on the staff they have, do not have, and might have. They might then feel that they can contribute. At that stage, one year hence, perhaps we can put the then Act into a better format. At the moment, it certainly does not seem to have been thought out properly from beginning to end.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Fox, for that question. I do not think that I can really add to what is in the impact assessment. Those costs are incurred over a number of years, but I think the impact assessment was carefully prepared and that those are the costs.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, as the noble Lord, Lord Fox, said, in one of his better interventions earlier, this is a mixed bag of amendments and probably represents skilful grouping by the Government Whips’ Office. As a result, we have had a very wide-ranging debate.

I say to the noble Lord, Lord Palmer of Childs Hill—an area I know very well, by the way, but that is another story—that I agree with him. Although he did not deal with the devolved Administrations, he made some very good and useful points. The noble Baroness, Lady Bennett, mentioned all the reports and very sensibly suggested that they might be looked at and consolidated or reorganised in some way on Report. I hope that that will be considered.

I also thank my noble friend Lord Lansley—he is getting more on my side every day—for his support on a statutory duty to consult. As I said in my introductory remarks, it is important to make it a statutory responsibility, otherwise it is so very easy for Governments —of all shades—to forget that they have a responsibility to consult widely.

Having said all that, in light of the helpful reply from the Minister, I beg leave to withdraw my amendment.

Amendment 14 withdrawn.

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[Baroness McIntosh of Pickering (Con)]

My Lords, before I speak to Amendment 16, I commend and endorse Amendments 23 and 47 in the name of the noble Lord, Lord Foulkes, supported so ably by the noble and learned Lord, Lord Hope. I shall leave them to speak to these amendments. I thank the noble and learned Lord, Lord Hope of Craighead, for lending his support and for cosigning my amendment.

I have sought to highlight that it is up to the appropriate national authority to

“seek reciprocal arrangements with other jurisdictions, including”—

as I specify—

“individual member states of the European Union, for those with UK qualifications, as well as in the context of future trade agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Co-operation Agreement.”

In his response at Second Reading, the Minister mentioned that the Government had been willing to negotiate mutual recognition of professional qualifications with our erstwhile partners in the European Union, but that they would not play ball. So will he take this opportunity to update us on the negotiations with our erstwhile partners? Is it still a matter of dialogue with them?

I understand that a specialised committee is also being set up within the context of the trade and co-operation agreement. It is a matter of great concern to those of us in this place, not least the noble Earl, Lord Kinnoull, who chairs the European Committee. There seems to be no sense of urgency. I am sure my noble friend will blame the European Union, but I would like to hear that it is a priority for this Government to set up all these specialised committees in the context of the TCA—but in particular this one.

What grieved me at the time was that when a statutory instrument was moved by our then Minister, my noble and learned friend Lord Keen of Elie, he stated that we were going to accept all those coming from the European Union and EEA countries to work here but we had not negotiated the reciprocal right for our, dare I say, lawyers—the issue of most concern to me—and practitioners in other professions. That seemed to me a very regrettable way of proceeding.

In the briefing that I received today, the Bar Council of England pointed out also that Clause 3 on international agreements has a part to play in the amendment. The council’s concern is that the clause is

“useful but limited to international agreements—that is, treaties to which the UK state is a party. The power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators. This is a further deficiency in the Bill.”

So I ask my noble friend to explain, where a professional body such as, for example, the Faculty of Advocates, the Bar Council or the Law Society of Scotland, has negotiated some mutual recognition, to what extent the Government would be able to support that and what the mechanism would be to do so.

My noble friend the Minister, in his letter to which I referred earlier, replied to the concerns raised by the Delegated Powers and Regulatory Reform Committee in its third report of this Session published on 7 June, in appendix 1, at the foot of page 12, where there seems to be something of a contradiction. He stated:

“The Trade Act 2021 provides for the implementation of provisions on the recognition of professional qualifications that are included in UK trade agreements with countries with which the EU had signed trade agreements as at 31 January 2020.”


At the end of the paragraph, he then stated:

“Finally, the powers provided in the Trade Act 2021 expire after five years, whereas it is anticipated that, for example, MRAs”—


mutual recognition agreements—

“formed as part of trade agreements will need to be implemented well beyond this limited period—especially in light of the lengthy timeframes MRAs typically take to finalise.”

I should be interested to know how that contradiction is going to be resolved in the context of the Bill. Are we really leaving it to regulations to resolve that timeframe? Are we going to be invited to look at these mutual recognition agreements as part of the trade agreements, because I understood my noble friend to say that we would not be going into that level of detail when we discussed other trade agreements hitherto.

So I commend this amendment to the Committee. It is appropriate that we seek reciprocal arrangements with other jurisdictions. That has served us extremely well in the past and made England, particularly London, the second centre in the world, after New York, for legal practice. We have done extremely well out of the arrangements and it is important that we continue to negotiate this, not just in future trade agreements but through the trade and co-operation agreement. In commending and moving the amendment, I hope that my noble friend will look favourably upon it and bring us up to date as to where we are.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, Amendment 23 in my name deletes Clause 3(2)(c), which provides regulations under this clause and relates to the charging of fees. That is at odds with the terms of Section 31(4) of the European Union (Future Relationship) Act 2020, which provides that no fees should be charged. That Act does not allow for the imposition of fees in regulations designed to implement the trade and co-operation agreement. So this is a probing amendment that gives the Government the opportunity to explain why they have a completely different approach in the Professional Qualifications Bill from that in the future relationship Act. I look forward to hearing how the Minister can explain that away.

Amendment 47 has also been signed by the noble and learned Lord, Lord Hope, who will be much better at explaining it than I could ever be.

[Lord Hope of Craighead (CB)]

I am very grateful for that invitation but before I get to the amendment tabled by the noble Lord, Lord Foulkes, I support what the noble Baroness, Lady McIntosh, has said in support of Amendment 16 about the need for

“reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications”.

This amendment is of particular interest to the legal professions in this country, in view of the achievements that were made right across the board in all three jurisdictions—Northern Ireland, Scotland and England and Wales—in that respect while we were in the EU.

I am quite sure that the professions do not want to lose the benefit which those arrangements were able to achieve. There is a gap here that the trade and co-operation agreement with the EU has left unfilled. Amendment 16 goes some way to addressing and filling the gap in the interests of those who would like to benefit from the kind of arrangements we previously had under the European Union.

Coming to Amendment 47 in the name of noble Lord, Lord Foulkes, it seeks to clarify the provision in Clause 9(4) about the risk that the duty of a regulator to provide information may contravene the data protection legislation. The same point arises in Clause 10(7), which is the subject of another amendment by the noble Lord, Amendment 50. Unfortunately, it is not in this group but will arise later on. Perhaps one is addressing the same point this evening. It also arises in regard to Clause 7(5), which raises exactly the same point. The Minister will appreciate that one is dealing here with a duty to disclose information. It begs the questions: first, does it breach any restriction under rules or contract, for example, or, secondly, does it breach the data protection legislation?

Concentrating on Clause 9, its structure is really quite interesting because it provides the duty in its subsection (2). It is a duty to provide

“any information … that is held by the first regulator … that relates to the individual”

and

“that … is requested by the second regulator.”

Then we come to its subsection (3), which says:

“A disclosure of information under this section does not breach … any obligation of confidence owed by the first regulator, or … any other restriction on the disclosure of information (however imposed).”


Those words are perfectly clear. They provide a complete answer—a complete defence—to a claim for breach of contract or a claim that the rules have been breached. For example, if I objected to the information being released by the first regulator that related to me on the ground that I had entered into a contract preventing the release of that information, I would simply be deprived of my contractual right to complain, because that is exactly what subsection (3) says.

The problem is subsection (4) which says:

“Nothing in this section requires the making of a disclosure which contravenes the data protection legislation”.


If that subsection had said that no disclosure which contravenes the data protection legislation shall be made, or words to the same effect, it would mean that, despite the firm duty in the earlier part of the clause, one was simply not required to disclose anything which would breach the data protection legislation. However, it does not say that; it just says that nothing requires you to do it.

Greensill Capital

Lord Foulkes of Cumnock Excerpts

Wednesday 14th April 2021 Lords Chamber

[Lord Callanan (Con)]

The Prime Minister has announced a review into this matter. I have seen the media reports the noble Lord refers to, but the Boardman review will cover all available facts. The Government will provide all necessary documentation to that review, and all participants have said that they are willing to provide the appropriate information as well. The noble Lord should give him a chance to do his work and see what he comes up with.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the Prime Minister has said that the Greensill inquiry has carte blanche, so could the Minister assure the House that it will be able to look into the Scottish Government’s failed deal with Gupta and Greensill for the Lochaber smelter, which has lost the taxpayer half a billion pounds? Will it also look into the private meetings over dinner which Scottish Minister Fergus Ewing had with them, of which no records were kept and which were not reported to the Civil Service? The Cameron sleaze seems to have crossed the border to the Scottish Government.

[Lord Callanan (Con)]

The noble Lord is nothing if not firm in the points he makes. I can speak only for the British Government on this, as I suspect he knows very well. I cannot comment on or speak for the Scottish Government on their dealings. Our review will examine matters for which the UK Government are responsible. Perhaps he could take up his concerns about what happens in Scotland with the First Minister.

Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021

Lord Foulkes of Cumnock Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I too am grateful to the Minister for his, as usual, helpful introduction. Like him, I fear that we will be facing many more insolvencies—not just because of the pandemic, as he indicated, but as a result of the many problems arising from Brexit—so these regulations are timely.

I will confine myself to a few questions, which I hope the Minister can respond to in his reply. First, can he tell us whether all kinds of companies are covered by this provision? I understand from the Explanatory Memorandum that it extends to small businesses but are all types of businesses included? Specifically, will football clubs, some of which are currently in great financial difficulties, be included? As others have done, I also want to ask about the evaluators, who will be given significant responsibilities. As their trade body R3—as well as noble Lords in this debate—has said, it would be helpful to know what qualifications will be required to act as an evaluator. The Minister gave us some examples of professions but he did not describe what specific qualifications they should have. If, for example, they are businesspeople, will they be excluded if they have themselves been involved previously in an insolvency?

How will they all be assessed for honesty and integrity prior to their appointment? Why will there not be a central register of evaluators, or indeed a body responsible for any training and registration and checking their operational effectiveness and reliability? Will the Government consider a register of approved evaluators being maintained by the Insolvency Service, as suggested by R3? However well qualified, an evaluator will not have the final say. If an administrator does not accept the decision of an evaluator that the “case is not made”, all he has to do is “provide an explanation” to allow him to proceed anyway. Does this not make the evaluator’s role effectively impotent?

The Minister helpfully reminded us that the definition of “connected persons” is described in legislation. However, how will the proposed procedure prevent some form of insider advantage being given to connected persons? Can the Minister also tell us how the interests of creditors will be balanced against speed in this procedure? Sometimes their interests can be forgotten in the apparent need for a quick resolution. Finally, and perhaps predictably, I want to ask about Scotland. Here, insolvency is partly devolved. Can the Minister tell us what discussions have taken place to ensure that these regulations are in fact consistent with Scots law, and can he give the House an assurance that this has been accepted by the devolved Administration?

Assuming that the Minister can give us all satisfactory answers, I agree with others that we should approve these regulations.

National Security and Investment Bill

Lord Foulkes of Cumnock Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 4th February 2021 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I, too, welcome my noble friend Lord Woodley to our House, and I thank the Minister for a comprehensive introduction to the debate. My only disappointment was that he sounded almost apologetic when he should be proud to be introducing this Bill to the House. Like my noble friend Lord Rooker, I was interested in the number of declarations of commercial interests by a number of speakers in this debate. I declare that my only interest is that of national security.

I welcome this Bill. It is long overdue, and I fear that we may already be too late in some areas. We may be closing the stable door after a few of the horses have bolted. At the risk of being labelled an “old leftie”, I felt much safer from assaults on our vital infrastructure a few decades ago, before the frenzy of privatisation, particularly during the Thatcher era. We were, for example, at the forefront of all aspects of nuclear technology, including electricity supply, when it was in public ownership. The United Kingdom built the world’s first nuclear power station and was at the forefront of the production of material for civil and military use when it was in public ownership. We felt secure because the United Kingdom Atomic Energy Authority, the Central Electricity Generating Board, the South of Scotland Electricity Board and the immensely innovative North of Scotland Hydro-Electric Board were all in public hands and in no danger of takeover by hostile investors.

Similarly, our telecommunications, railways and water supply, all key infrastructure, were all publicly owned and therefore by definition secure. The blitz of privatisation has resulted in all of them—except, thankfully, water in Scotland—being potential prey to hostile interests. The desire among a few of those who are already wealthy to increase their personal wealth has put the vast majority of the population at risk. It has certainly helped the billionaires, but the workers have not been helped to a great extent. Even some of our defence installations are being sold off, and government buildings in Whitehall are the target of the private investors. I have more faith in Governments, even this Government, to look after our national interests than I do in Capita or G4S. So, unlike some others, I am not inclined to ask for a watering-down of the powers in this Bill. Indeed, such strong action is long overdue.

When I was a member of the Intelligence and Security Committee, I became increasingly aware of the threats to our infrastructure, not just from Russia, China and other countries, but also from non-state interests. As others have said, the ISC, in its report, called for action as far back as 2013, so the delay is regrettable. Some investments may well have been made in anticipation. Thankfully—I commend the Government for this—some interim strengthening has been made by secondary legislation. I also understand and accept that not all these discussions should be in the public domain as we move to protect the interests of our people, because of the sensitivity.

I agree with those who have suggested that a wider definition of national security might be necessary to take account of technological changes—particularly in relation to the internet and social media—and the expanding range of hostile interests. I am disappointed that the Minister seemed to rule this out, even in his introduction. I hope he will think again.

Finally, I agree with Dr Julian Lewis, the chair of the Intelligence and Security Committee, my friend and colleague Kevan Jones, who is a member of that committee, and, of course, my noble friend Lord West, in their view that the ISC should clearly be closely involved in the oversight of this. The committee has the membership and the modus operandi to make it appropriate to undertake this task. Since this House is represented on the ISC by my noble friend Admiral Lord West, we can be assured that our interests are well represented there. I strongly support his proposed amendment, and I hope that the Minister will say that he accepts it in principle and that we might even get a government amendment to that effect.

I end where I began by expressing support for the Bill. I hope that we can get it into law without any delay.

Hospitality Sector Minister

Lord Foulkes of Cumnock Excerpts

Wednesday 3rd February 2021 Lords Chamber

[Lord Callanan (Con) [V]]

The noble Lord made his point very powerfully, and I will ensure that his comments are passed on to the Chancellor.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I have had a look at the websites of the two departments that are supposedly responsible for the hospitality industry—BEIS and DCMS—and there is a total of 13 Ministers, including three in the House of Lords. Whereas the noble Baroness, Lady Barran, has responsibility for ceremonials and the noble Lord replying has responsibility for the Ordnance Survey, not one of the 13 is listed as having responsibility for hospitality. Is this not embarrassing for the Minister and his department, and what will he do about it?

[Lord Callanan (Con) [V]]

There are two Ministers—Minister Huddleston in DCMS and Minister Scully in my department—who look after the interests of businesses and others in the sector, so the noble Lord need have no fears: the concerns of the hospitality sector are well heard in two government departments.

Trade Bill

Lord Foulkes of Cumnock Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Tuesday 15th December 2020 Lords Chamber

[Lord Wigley (PC) [V]]

My Lords, I shall speak in support of Amendment 13, so eloquently moved by the noble Lord, Lord Fox, despite the technical difficulties. I follow the noble Baroness, Lady Bennett, with great pleasure. It is good to see her back in the Chamber. I agreed with everything she said. I also welcome the comments of the noble Baronesses, Lady McIntosh and Lady Bull.

The amendment touches on a matter that is now assuming immensely greater interest among the people of these islands, as the harsh possibility of a no-deal Brexit dawns on them. People are awakening to the reality that their right to move to work in EU countries might now be limited as a direct result of the 2016 vote, notwithstanding the multitude of platitudes expressed by Brexiteers during that referendum.

Perhaps I may refer to one particular group in the service sector, and, in doing so, I draw attention to my registered interests. I highlight the need for those in the performing arts sector to have unrestricted free movement across the countries of our continent. The noble Earl, Lord Clancarty, has already very effectively addressed this dimension, which is so close to his heart. Such freedom of movement is absolutely basic to the cultural services they provide. Many of them, particularly those who are self-employed, have been devastated by the Covid lockdown, and restrictions on their movement once the Covid threats ease would be a second body blow that they just could not endure.

The Government claim that they support the securing of mutuality for the creative sector between the UK and the countries within the European Union. When the Minister responds, will he clarify where they stand on the Creative Europe programme? It is so important for the devolved nations in developing their existing links and helping them maximise their contribution to the UK’s soft-power objectives.

Other people are expressing horror at the fact that they will not be able to take their pet dogs with them when they travel to and forth in our continent without pre-arranged veterinary certificates. Lo and behold, we do not have the number of vets required to handle such cases, as so many of them originate from the European Union and have been given the impression, rightly or wrongly, that they are no longer welcome here. With a proportion of them now opting to go home and very few new vets coming to the UK given the Brexit uncertainty, the whole of the animal sector faces a crisis. Apparently, there have been a significant number of qualified vets among refugees seeking a home in Britain. It would be very helpful if the Government could fast-track them to enable them to help us out in the plight that faces us.

The harsh, cold reality of a no-deal Brexit is now staring us in the face. There is something ironically, cruelly appropriate that the free movement of people—one of the original attractions of having our continent reunited after two disastrous wars during the first half of the 20th century—is now one of the first potential casualties of Britain’s retreat into offshore isolation, hiding behind an array of gunboats to secure our place in the world. Presumably, that is the new normal to which the noble Baroness, Lady Noakes, referred. And is it not cruel that we—the generation who have enjoyed freedom of travel for work, education and leisure purposes—are the ones taking that great boon of unhindered travel away from our children and grandchildren? We should be thoroughly ashamed of ourselves, and I can only shudder at how history will judge us.

I fully support the amendment, although I do not pretend for one moment that it will somehow begin to put right all the negative impact of Brexit in its worst, ugly guise that now stares us in the face. I say no more.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, it is a pleasure to follow the noble Lord, Lord Wigley. I agree with every word that he said, and he said it most eloquently.

I want to speak in support of the amendment moved by the noble Lord, Lord Fox. I have to say that very carefully because it is getting more and more confusing. We have the noble Lord, Lord Fox, the noble Baroness, Lady Fookes, the noble Lord, Lord Faulks, me—Lord Foulkes—and now there is another Fox here, although I think of the noble Lord as the friendly fox. I am sure I am giving nothing away when I say that.

These days, sadly, the Brexiteers comprise almost the whole of the Cabinet. It seems to be the only requirement to be a member of the Cabinet—not to have ability but just to have campaigned for Brexit. It is certainly not ability—that is very obvious. Also, this place is becoming increasingly packed with Brexiteers, who, sadly, inhabit both sides of the House.

I am what they all call a “remoaner”. I ask the noble Baroness, Lady Noakes, whether “remoaner” is the right term. Well, I make no apologies for continuing to be a remainer—and I will continue to be one. Over the last 40 years we have had not just mobility for trade and reciprocal rights to work but free healthcare as we have travelled throughout Europe. We have had the right of abode, which we will now get for a measly 90 days. That will thwart some of the people on the other side of the House with two homes. We have had the right to study and many more reciprocal rights. I say to the noble Baroness, Lady Noakes, and others that that is sharing sovereignty, not surrendering it. Sharing sovereignty does not mean surrendering it.

I want to take this opportunity to say just one thing: that those of us who have valued, and continue to value, those rights should not be intimidated in any way by the Brexiteers. After all, they went on and on for decades until they got their referendum, which, sadly, they won. It is our right to continue to advocate the case for European co-operation. Incidentally, we should also not be put off by the faint-hearted in our own parties.

Those of us who believe in the European ideal—the European single market, a customs union, European co-operation generally, and working with our closest allies and neighbours—should keep on saying that. We should reaffirm our commitment and determination to return to membership at the first possible opportunity. After all, as others have, rightly, said, the current fiasco over Brexit makes it even more imperative that we should look at that option.

Bankers, those working in insurance and people in many other businesses are moving from the United Kingdom to the continent of Europe. That is one of the ironies of it, and some of them of course are Brexiteers. Jacob Rees-Mogg in the other place is making huge amounts of money out of investments in Ireland and not in the United Kingdom, and Jim Ratcliffe of INEOS, one of the leading Brexiteers, is moving production of the new Grenadier vehicle to the continent of Europe. That is not patriotism; it is despicable, and it should be criticised by people opposite who aver that they believe in the United Kingdom.

So let us reaffirm our belief and not be intimated by the Brexiteers, and let us start now. I remember the referendum when we reaffirmed our commitment to the European Union. I fought very hard for that and we have enjoyed the last 40 years. I hope that I will be around for the next referendum—I might just be if it comes sooner rather than later—to make sure that we return to the European Union, taking our rightful place as part of the united Europe that, sensibly, we have been, and ought to remain, part of.

--- Later in debate ---

[The Earl of Caithness (Con)]

My Lords, I support these two amendments. There is an overlap between them and the next ones tabled in the name of the noble Lord, Lord Purvis of Tweed. As my noble friend on the Front Bench will remember, I highlighted the environment as one of the key areas in which ISDS could cause problems for the United Kingdom. I will say a little more about that in the debate on the next amendment.

Suffice to say on this amendment that we must realise that the trade deals we are making now will have a huge impact on each and every one of us. They are much more complicated than they were in the past. Some 80% of our fruit comes from Europe, along with 50% of our vegetables. If we do not have a sensible trade agreement with Europe which takes that into account, it will cause increased problems for the Prime Minister’s campaign against obesity and the problems that the poorest in our country are already suffering with malnutrition and poor-quality food. It is well known that obesity rates increased in both Canada and Mexico after signing free trade agreements with the United States of America because the nutritional quality of food was lower than before. These free trade agreements are going to impact on us in all sorts of ways.

I am reminded that when we discussed this Bill on the first day of Report, my noble friend Lord Grimstone said that public health considerations would be excluded by the Trade and Agriculture Commission, although reports about them would be taken into account. Perhaps I may therefore press my noble friend: who or which institution is going to provide those reports on public health? We do not know. Public Health England is about to die a death. Which organisation will produce those reports? That is important. The reason I raise this is because the words “human” or “public” health are included in the proposed new clause in subsection (3)(b) of Amendment 21.

The other important area when it comes to health is the traffic light system that we put on packages to notify people about the nutritional quality of food. We all know that the United States of America hates the idea of a traffic light system and thoroughly disagrees with it. However, if we are trying to improve the quality of the food that we eat and get rid of some of the dependency that we have on processed foodstuffs, the traffic light system, which is currently the subject of further discussion, will play a hugely important part in that. This was part of the discussion and recommendations made by the Food, Poverty, Health and Environment Committee, whose report we have yet to debate. However, if we do not get things like this right, we will pay a huge price, and it is for that reason that I support these amendments.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, first, I thank the noble Earl, Lord Sandwich, for supporting what I said on the earlier amendment. It encourages me greatly, because the campaign for our rejoining the European Union is gaining momentum day by day.

Returning to this amendment, like the noble Baroness, Lady Hayman, I am also a member of Peers for the Planet, an excellent organisation, involving Peers from all parties, for raising awareness about the dangers of climate change. Indeed, it was the noble Baroness who recruited me to that organisation, and I agree with absolutely every word that she said and have very little to add.

Just to underline what the noble Baroness, Lady Hayman, said, I add just one thing, in relation to the United States of America. It will now be much easier to have a trade deal with the United States that incorporates these requirements. The election of President-elect Biden—and we can all, I hope, rejoice in the fact that he has now been confirmed as the President-elect—is a great step forward in that regard. He has pledged that one of his first actions in office will be to rejoin the Paris climate change agreement, and the United States could therefore formally be a member of that agreement before the beginning of March 2021. His transition website suggests an aspiration for net zero by 2050, which is a great improvement even on what President Obama agreed. President-elect Biden has named former Secretary of State John Kerry as his special envoy for climate change, with a seat on the National Security Council. That is very important, because it underlines the fact that climate change is also a national security issue.

I look forward to being around, if not in, Glasgow next November and welcoming to Scotland and the United Kingdom delegates from all countries from around the world in the COP 26. I say “welcome to Scotland”—I know that the Minister will agree with me wholeheartedly on that. We hope, expect and believe that it will remain part of the United Kingdom for many years to come.

[Lord Mann (Non-Afl)]

My Lords, these amendments are like that Christmas nightmare, whereby you anticipate a guest bringing—or perhaps this year sending through—a case of high-quality Yorkshire ales because they promised the Christmas booze, but what is in fact delivered is a small bar of chocolate liqueur.

I hear that even the chocolate liqueurs will not be put to the vote today. It is a shame that that opportunity has been missed, and I obviously share the blame for not tabling a stronger amendment, because the green case for Brexit is absolute. I appreciate that those will not be welcome words here in remain central. However, the case was put here, and in the other place, repeatedly—for example, of the car industry, and Toyota cars. A single part would cross the channel 25 times that way and 25 times back—50 journeys per car part. That was put as a case for why we should stay in the European Union, even when the people had voted to leave.

It struck me both before and after the referendum that the green case on manufacturing was absolute. The future winners competitively would be those countries that reconfigured their industry and services not to be global in terms of absolute requirements but to be localised. I have always shared Schumacher’s philosophy that small is beautiful. The worst entity for big and bold is beautiful was the European Union, with its entire structure dictated by trade across large borders. Now, as we leave, Parliament is obsessing again about trade agreements.

I want to see the new industries and technologies developed in this country. I want to see food and manufacturing parts not transposed over many borders and thousands of miles, because the planet cannot sustain that, as is self-evident, but localised supply chains and investment, and decisions by this place that facilitate that change—along with an energy policy not reliant on Russian gas and, thankfully, no longer reliant on Chinese coal. I look forward to celebrating that. I can see two of the last six coal power stations from my house. One has now shut down and I look forward to the second going. That is what these amendments should be about.

We got derided for saying “British jobs for British workers”. Perhaps the slogan should have been “Green jobs for a green economy”, with local markets and supply chains. Nevertheless, even with the little chocolate liqueur of greenness on offer, should there be boldness from the Liberal Democrats in putting the amendment to a vote, they will have my vote.

United Kingdom Internal Market Bill

Lord Foulkes of Cumnock Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I fear I will not match the eloquence of my noble friend Lord Adonis. I want to say a few words in support of the amendments of the noble and learned Lord, Lord Hope, who, like me, is a member of the Common Frameworks Scrutiny Committee. In his introduction, the noble Lord, Lord True, praised my noble friend Lady Andrews and the work she and that committee are doing. If the Minister thinks that method is so good, why does he not accept these amendments, since that is exactly what we are suggesting—that it should be done through the kind of procedure that the Common Frameworks Scrutiny Committee is operating? He argued that case, perhaps without realising it, from the Dispatch Box.

Yesterday, I heard a very interesting debate. On one side of the argument was the importance of a level playing field for an internal market—I thought the United Kingdom Government were arguing that case in relation to what we are discussing—and on the other was sovereignty. I thought it might have been the Scottish or Welsh Governments arguing that case. Ironically, it was not. It was the European Union arguing the case for a level playing field for a common internal market and the United Kingdom Government arguing the case in relation to sovereignty. The tables were turned; the UK Government were arguing entirely the opposite case in relation to Europe that they argue in their dealings with the devolved authorities. It is about time they got their arguments right on this and accepted these amendments.

[Lord Fox (LD)]

My Lords, throughout the many stages of this debate the common frameworks have been given a great airing, and many of your Lordships have had a chance to vent their respective spleens on the subject. The Minister may be assured that my spleen will remain in its correct place, because enough has been said on this issue. Indeed, he observed that noble Lords have made their position on common frameworks very clear.

However, the Government have shown great and steadfast reticence on writing the common frameworks into this Bill. The Minister set out two reasons for this: first, in stressing the word “voluntary” on several occasions, and, secondly, in pointing out the joint ownership of the common frameworks between the devolved authorities and the UK Government. On that second point, have any of the devolved authorities objected to the idea that common frameworks might be a central part of this Bill? I have seen no such objections; on the contrary, I have seen enthusiasm from devolved authorities that this might happen.

The noble and learned Lord, Lord Hope, has drafted elegant solutions in his amendments, which I hope will help the Minister to get to the point of developing the market access principles and legal certainties—the Minister is right to say that we need them—but, at the same time, respecting the devolution settlement. A key part of the noble and learned Lord’s speech was about the respect that this Bill needs to show the devolved authorities and the settlement that has developed so well there.

I was impressed by the tone of conciliation and consultation in the Minister’s speech, which came through in his “willingness to continue to engage in discussion”, “discussions have not been exhausted” and “open to discussions.” The door is clearly open. With respect to the noble Lord, Lord Naseby, there is time; I have also worked in commercial life and while the idea of “give me certainty” works within a correct framework, if it is “give me certainty” in a terrible framework then I would rather wait a little and get it right. We can spend a few days more getting this right. A vote for the amendments set out by the noble and learned Lord, Lord Hope, would help keep the door open for those discussions with the Minister. That is why we on these Benches will vote in favour of them.

Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020

Lord Foulkes of Cumnock Excerpts

Friday 27th November 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I thank the Minister for his introduction and the very helpful letter and factsheet he sent us yesterday. However, I must say I found the Explanatory Memorandum to this SI even more interesting—and much more revealing. The obtuse title of the SI hides a lot of important issues, but in the limited time available I will confine myself to a few questions to the Minister.

As he said, we have already agreed four Sis, in 2018 and 2019, on this subject in preparation for a no-deal exit from the EU, which could now come into force on 31 December. As I understand it, we have six SIs to amend those because of the withdrawal agreement: four already laid and two more still to come. We do not know yet if there will be a deal or no deal, so can the Minister explain how we will deal with these SIs if there is a deal, and if there is no deal?

This instrument deals with a wide variety of important matters, as the Minister said, including noise emissions by outdoor equipment, aerosol dispensers, toy safety, lifts, recreational craft—including motorboats—gas appliances, and PPE, yet there was no formal consultation on this. Why not? This instrument also covers the important issue of firework safety and the designation of an approved body for pyrotechnics. Interestingly, maybe astonishingly, it allows for it to be based in any country—the UK, in the EU or in the rest of the world, presumably including China. Can the Minister explain why the present arrangement is not acceptable?

The regulations also provide for unlimited fines for the misuse of what are complicated product safety rules, but the Government say they will be used rarely. How can they make such a prediction?

This is just one of hundreds of such SIs from this and other departments taking up the valuable time of capable officials, which could be better spent elsewhere. And it is all because of the chaos and confusion arising from a bungled and unnecessary exit from the European Union market—a market that was working well.

United Kingdom Internal Market Bill

Lord Foulkes of Cumnock Excerpts

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

[Lord Hain (Lab)]

My Lords, although I welcome the Minister’s moving of government Amendments 14, 36 and 45, I still wish to speak in support of Amendments 15, 20, 27, 34 and 46, to which I have added my name.

As the noble Baroness, Lady Finlay, said, these are modest amendments which are almost painstaking in their attempts to be reasonable. They balance the right of the devolved Governments to be asked for their consent if and when Ministers want to use Henry VIII powers to clamp down still further on the very narrow exceptions to the market access principles, with the right of the UK Parliament to act if it believes that one or more of the devolved Governments are unreasonably delaying or blocking such changes. I am happy to put my name to these amendments, but the fact that they are so modest highlights the parlous state of the union. We are faced with a Government who are so paranoid about the potential threat of a nationalist veto to their plans that they are prepared to provoke the very thing they fear: the collapse of the house of cards which is our so-called current constitution.

The noble Lord, Lord Hennessy of Nympsfield, coined the phrase “the good chaps theory of government” as a description of the way the governance of this country functioned in the absence of a codified constitution. We are faced with a Government who have defenestrated the good chaps with an insurrectionist zeal that makes Robespierre appear a model of restraint. They are unapologetic when found by the Supreme Court to be violating the constitutional rights of Parliament, responding by attacking the judiciary; they use constructive dismissal as a routine way of neutering the Civil Service; they give consultancy contracts on a breath-taking scale to their friends and relations without any proper procurement; and they tolerate a Cabinet Minister with the brass neck to remain in one of the highest offices of state after being found to have broken the Ministerial Code by bullying her officials—the list goes on.

If we are to defend devolution and indeed the future viability of the union—which I believe your Lordships’ House has repeatedly shown it wishes to do—we need to compel the Government to respect the rights of the devolved Governments and legislatures. That is why it is so important that the market access principles should be brought into play only if this House and the other place are convinced that a real-world threat has emerged to the internal market which cannot be addressed by the common frameworks. That is why the consent of the devolved institutions to legislative devices which might limit their rights should always be required. Let us be in no doubt that that is precisely what the Bill would do. Even without using the Henry VIII powers to which these consent provisions would apply, the Bill poses a real and present danger to the capacity of the devolved Governments to do what they have been elected to do.

In Committee, many Members raised the issue of single-use plastics. The Welsh Government have consulted on a proposal to ban nine types of these items—a move in line with their recognition of the climate emergency which would be fully possible under EU law, and which is very broadly supported in Wales. Ministers did not give a clear answer as to whether legislation of this sort would be possible if the Bill was enacted. However, in the policy statements published on the Department for Business, Energy and Industrial Strategy—BEIS—website last week, the issue is now crystal clear. To quote from one:

“Conversely, non-pricing policies that place an outright ban on goods being sold, for example a ban on single-use plastics, would be caught by mutual recognition. Devolved administrations could introduce a ban on the sale of a particular good, but the ban would only cover local products produced in that part of the UK (or those imported into that territory from outside the UK). Devolved administrations could not enforce that ban against sellers of goods produced in, or imported into, other parts of the UK.”


That is a quote from an official government website. Will the Minister please confirm on the record that this official BEIS advice is accurate, because its implications are pretty serious? If it is, would he explain how this is consistent with his and his colleagues’ previous assertions that the Bill does no more than replace constraints that existed by virtue of our membership of the EU?

The Bill is a tale of two halves. The one half consists of legitimate fears on the part of the devolved institutions that their role and powers are in real jeopardy, and the other of bogus claims that the devolved Parliaments are lying in wait to sabotage the union as the chimes of Big Ben welcome in the New Year. We must face down the half-truths of this unscrupulous and power-hungry Government and defend the rights of the devolved institutions, as these modest amendments seek to do.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I apologise for the fact that I am having to appear electronically, rather than be there in person, for logistical reasons. I am sorry not to be able to engage in a bit of banter with the noble Lord, Lord Cormack, for example, and in particular with the Minister, the noble Lord, Lord Callanan, with whom I have had a few exchanges of interest in the past. Nevertheless, I am very happy to speak today in support of the amendments in the name of the noble Baroness, Lady McIntosh, and myself.

These amendments would require—the important word—the UK Government to consult with the devolved Administrations in the areas described. Thankfully, the Government seem to be moving in that direction, as we see from Amendment 14. For once, I thank the noble Lord, Lord Callanan, for accepting that. In Amendment 15, my noble friend Lady Hayter on the Opposition Front Bench, and others, add a requirement to seek approval from the devolved Administrations while allowing the UK Government to go ahead if that is not obtained within a month. I will support that amendment if there is a Division on it, because it puts extra pressure on the Government to find agreements. There is in fact no difference in principle between the amendments, but they underline the need for some greater understanding of the nature and the extent of devolution. However, I repeat what others, including the noble Baroness, Lady Finlay, said, that we would prefer that the Bill had not seen the light of day and hope the Government and the Commons might think again in the light of their overwhelming defeat here in the Lords.

Meanwhile, we need to consider how these matters are dealt with if the Government do not take our advice and press ahead with the Bill. Some in Scotland, principally the SNP, have described the transfer of responsibilities from the European Union as a “Westminster power grab”. while the UK Government see it as a “power surge” to the devolved Administrations. The fact is that neither is the reality or correct. In truth, we were all willing to see common standards for the whole of the UK decided as part of the European Union common market, with some reservations as appropriate. Now we need to determine how we deal with all these powers in what will effectively be a UK common market.

There is however a constitutional difference between the European Union and the United Kingdom. Whereas the European Union is a federation of sovereign states, as we know, the UK has been a unitary state for centuries but has rightly decided to devolve some powers to three of its constituent parts over the past two decades. I support that and agreed with it, but we are still coming to terms with the new reality, and it is proving more difficult for some than for others.

In areas where there has been devolution of powers, those transferred from the European Union should of course go to the devolved Administrations as long as it can be done without any real distortion of the United Kingdom’s internal market operation. In our amendments, there is provision for them to be consulted, but not, of course, to have a veto, which I believe to be correct. However, there needs to be genuine consultation and, sadly, as my noble friend Lord Hain said, that has not been the case with the current UK Government, who have fuelled resentment and nationalist movements in the three nations.

Finally, I hope that the Minister will spell out in greater detail in his reply the procedures by which the Government intend to consult—the arrangements for consultation; secondly, how they will take account of those consultations within Westminster and Whitehall; and, finally, confirm that they will publish reasons if they are unwilling to accept the views of the devolved Administrations. That is the least that the devolved Administrations can expect, and I hope it will not be too difficult for the UK Government to do so.

I look forward to the rest of the debate and hope that when we get to Amendment 15, if there is a Division, the House of Lords will once again show its good sense.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, first, I thank the Minister for his statement at the beginning of this group, in which he indicated that he had made an error in winding-up last week on Amendment 24, which was in my name and those of the noble Lord, Lord Hain, and the noble Baronesses, Lady Suttie and Lady Bennett of Manor Castle.

I have listened to what the Minister said today. I wrote to him at the weekend about what was said on broadcast TV, which I quote:

“If the employment law requirement were to meet that test, they would not be disapplied because they had discriminatory effect.”


When the Official Report appeared, it stated:

“If the employment law requirement were to meet that test, they would not be disapplied unless they had discriminatory effects.”


The difference between “because” and “unless” leads to direct opposites, and that requires further clarification from the Minister and from the Minister who will hold the meeting. I thank him for indicating that he will facilitate that meeting with the members of both the Human Rights Commission and the Equality Commission in Northern Ireland on this issue.

As the noble Baroness, Lady Hayter of Kentish Town, stated, if we are not satisfied with the outcome of that meeting—it is important that it takes place prior to Third Reading—I would seek to bring that issue back then. For the purposes of clarification, I think I need to point out that the withdrawal Act 2020 implemented Articles 2 and 13 faithfully. Clauses 5, 6 and 8 of the Bill threaten that implementation by allowing changes to legislation implementing the obligation to keep Northern Ireland in line with equality law in future. It does this by providing that such legislation cannot be challenged on the basis that it is indirectly discriminatory. Until last week, the Government had said that Clauses 5, 6 and 8 did not apply to such legislation. The Minister’s statement today makes it clear that they will apply and may be used to challenge legislation implementing the Article 13 obligation.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 39 I will speak also to Amendment 40, relating to Clauses 19 and 20. The amendments clarify the meaning of Clause 19(1) regarding the effect of a statutory requirement under Clause 16 and a similar provision in Clause 20 on indirect discrimination.

If I understood the Minister correctly, in summing up the debate on the amendment of my noble friend Lady Neville-Rolfe, he said that the service provider and regulatory requirement were, in his view, deemed limited enough in scope not to cause barriers to trade. I would like to probe and penetrate his thinking further.

The Law Society has drafted—and I am delighted to thank my noble friend Lord Foulkes of Cumnock for supporting these two amendments—the insertion, at the end, that no effect is only

“to the extent that it directly discriminates against the service provider”

in Clause 19, or indirectly in Clause 20.

When this was debated in Committee with earlier amendments, we expressed reservations about the meaning of “no effect” as it lacked clarity. In summing up the debate on Amendments 81 and 84, my noble friend Lord Callanan said:

“In Clause 21, a legislative requirement is one imposed ‘by, or by virtue of, legislation’.”


He went on to say:

“This extends beyond legislation to rules produced by bodies with powers delegated to them in respect of a particular field of regulation, and it may include licences or requirements contained therein. My noble friend’s Amendments 81 and 84 would appear to have the same effect. However, in my view, the term ‘of no effect’ is the more appropriate to apply in respect of a licence or a non-legislative rule.”—[Official Report, 28/10/20; col. 358.]


Having taken note of my noble friend Lord Callanan’s comments, I now seek to clarify that lack of effect would relate only to that element of the regulatory requirement that directly, or in the case of Clause 20, indirectly, discriminates against a service provider. It is hoped that the Government accept this amendment, as it is meant as a helpful clarification of Clause 19, and the related amendment to Clause 20. I beg to move.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I hesitate to add to the excellent introduction that—if I may call her this—my noble friend Lady McIntosh of Pickering gave, except for one thing. We are dealing here with, in one case, direct discrimination and, in another, indirect discrimination, and only in these circumstances. Noble Lords will recall that, in a debate last week, as we were vividly reminded by the noble Baroness, Lady Ritchie of Downpatrick, the Minister got into a fankle—if I may be excused for using a Scottish word—on the question of discrimination. I hope that he will spell out these two areas carefully, so that the House is clear exactly what the Government think about this.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I do not have a great deal to add to what has been said by the previous speakers. It is an unfortunate circumstance that the word “regulation” appears in multi-use in legislative and indeed non-legislative meaning; it can be a set of regulations or an individual regulation in a set. So I understand the concerns raised that it might be possible for regulation, or regulatory requirements, to span both a discriminatory measure and a non-discriminatory measure. Therefore, I think it would be helpful for the wording in Clauses 19(1) and 20(1), which use the slightly ambiguous term “regulatory requirement”, to refine it down, so as to disapply only the discriminatory part. There could be other ways to rework that wording to give the same effect, but it would be useful to put it beyond doubt because the word “regulation” is really rather confusing.