My Lords, it seems a long time ago now, but I start by thanking the Minister, the noble Lord, Lord Callanan, for introducing the Bill. It was, as many noble Lords commented at the time, a little surprising that he did not cover Part 5, but he may have decided that others would focus on it—he was right. I thank too my noble friend Lady Hayman of Ullock and the noble Lord, Lord Sarfraz, for their excellent maiden speeches. We welcome them to full membership of the House.
We have benefited enormously from the advice of our Select Committees and our deliberations have been improved by the contributions of their members. I thank everyone, from all groups, who has contributed, and the House authorities and the technical wizards who made it all work seamlessly. It was a long but worthwhile day. It is an honour to wind on what I think will turn out to have been a significant debate.
There is usually little to say about why a Government, especially one recently elected with a huge majority, should bring forward a seemingly routine Bill for Parliament to consider. It would have probably appeared in their manifesto, it would have featured in the Queen’s Speech, and it would have been preceded by consultation, a Command Paper or two and possibly pre-legislative scrutiny—although that, sadly, appears to be out of fashion these days. However, this Bill has left no such traces, apart from a vapid announcement and a pretty token consultation over the summer months.
During the debate yesterday, two rather different narratives emerged. On the one side was an assertion that this was a vital and necessary Bill that was required to ensure that the internal market within the UK worked smoothly with effect from the end of the transition period, with Part 5 tacked on just in case it became necessary to legislate if the joint committee failed to resolve issues related to the complex customs and single market situation in Northern Ireland. On the other side was a feeling that the Bill could not be supported as it stood because not only was it asking Members of this House to be complicit in a proposal to take powers to break the rule of law but it was damaging, possibly fatally, to the devolution settlement, was packed with egregious Henry VIII powers and was full of internal inconsistencies about how and to what effect the single market and state aid rules would operate after the transition period ended.
I am not by nature a believer in conspiracy theories, but the communique issued by the Cabinet Office after yesterday’s withdrawal agreement joint committee meeting makes interesting reading:
“The UK reiterated its commitment to upholding obligations under the Withdrawal Agreement and protecting the Belfast (Good Friday) Agreement in all respects.”
It is hard to accept that the Bill before us is just a cock-up, but perhaps only time will tell. Whatever its provenance, the elected House has asked us to consider it, and that is what we have to do.
Before we joined the EEC, we had a well-functioning internal market. We have now left the EU, and with that decision comes the imminent end of the rules governing the single market. How do we move forward, preserving the best of what we currently have? How do we ensure that consumers continue to benefit as they have in the past because of the way in which strong EU competition and state aid rules protected their interests? We do not believe that the proposition for a top-down, centralised standard-setting system contained in the Bill is right for the modern UK economy. The EU single market rules governed trade in goods and services across members states. They recognised the diverse economic, social and legal contexts of those states and harmonised practice, or set minimum standards, only where it was agreed that it was essential to support the market while observing the important principles of subsidiarity and proportionality. Why are these principles patently not in the Bill? The principles that are there, of mutual recognition and non-discrimination, are good in so far as they go, but they will not prevent local divergence or a race to the bottom on standards.
The sensible way of managing policy divergence within the UK internal market is by continuing to develop a suite of common frameworks; that is, agreed common approaches in areas previously governed by EU law but otherwise within the areas of competence of the devolved Administrations or legislatures. The common frameworks are intended to be agreed by consensus, and surely that is a prize worth waiting for. The UK Government have collaborated on a common frameworks programme for three years; many are close to final agreement, with the remainder being progressed at pace. Given how close we are to agreement, why does this Bill ignore rather than build on that programme? We intend to strongly challenge this approach. The Bill threatens to frustrate the progress made so far and to undermine future trust and co-operation because, to quote the chairs of the Constitution Committee and the EU Committee:
“The Bill provides the Government with powers to alter the competences of the devolved administrations and risks destabilising existing devolution arrangements.”
The Bill also seeks explicitly to amend the devolution settlement to add the design and operation of a “subsidy regime”—it used to be known as state aid—to the list of reserved matters. This has been described as a “power grab”, and it cannot be right for the UK Parliament to press ahead with legislation on an issue which is causing such genuine anger and concern. Again, it is difficult to see what is to be gained by pushing ahead with the Bill when so much needs to be determined about how and in what circumstances the UK wishes to evolve its state aid regime for the future. When we learn that the Government intend to follow WTO rules on state aid after 31 December, we ought really to start worrying. We will suggest that the new UK state aid system be run by an independent regulator with the power to rule against illegal subsidies, taking
an evidence-based approach to deciding when a subsidy is harmful or distortive. The OIM will not work unless it is independent, trusted and supported across the UK.
My noble friend Lady Hayter has outlined our approach to the CMA, and I repeat her call that the CMA’s present structure is inadequate, not simply because it fails to represent the four nations but because it lacks a clear duty to place consumers at the heart of its work. Competition is undoubtedly an important way of avoiding consumer detriment, but it is not, and never will be, an end in itself.
As I have hinted, most of the speeches in this Second Reading debate have focused on the egregious Clauses 42 to 47. Despite amendments to the Bill in the Commons, it has not been improved by the additions made and the arguments put forward yesterday by a huge range of speakers from all parts of your Lordships’ House were comprehensive and utterly convincing. As my noble and learned friend Lord Falconer and others reminded us, the tensions inherent in the protocol on Ireland/Northern Ireland were not hidden but were apparent from the outset. The breach of international law has been entered into knowingly. The Bill strikes at the heart not only of the protocol but of the withdrawal agreement. It could pose a threat to the maintenance of the Belfast/Good Friday agreement. In bringing forward the Bill, the Government alleged that the EU had not been acting in good faith, but they have not disclosed any evidence that it has acted in bad faith.
The government amendment in the other place does not alter the Bill’s fundamental incompatibility with the withdrawal agreement. The Government’s pre-emptive action has placed the United Kingdom in the wrong. The Bill has damaged the United Kingdom’s international reputation as a defender of the rule of law. As my noble and learned friend said yesterday, we will invite the House to remove Part 5 of the Bill neck and crop, to use his colourful language, at the earliest opportunity, and we hope that thereafter we can work with all parts of your Lordships’ House so that the House can do everything that it legitimately can to ensure that Part 5 remains removed permanently.
The amendments to this Bill put down by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Cormack, are supported by this side and, as far as I can judge, by the vast majority of your Lordships’ House and by the country at large. If moved, we will support them. I expect that the Government will be humiliated by the size of the majority against them, and a message will go out to the EU and the world that at least this House has standards and principles that others can depend upon, even if the present Government have not. When the history of these troubled months comes to be written, it will not be kind to the current Prime Minister and his Cabinet.
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