My Lords, I also am a member of the Common Frameworks Scrutiny Committee. I would like to give my appreciation to the noble Baroness, Lady Andrews, for the way in which she is chairing the committee. It has a hugely demanding task, which we are all learning extremely fast.
The noble and learned Lord, Lord Hope, is of course a member of that committee. The combination of his work and his expertise in the law has been demonstrated to be one of the strengths of the House today in the amendments that he has drafted, moved and explained in such meticulous detail. This is of huge benefit, and I hope that the Minister will recognise that he should give very serious consideration to what is being proposed.
I do not have the audacity to summarise the noble and learned Lord, other than to say that his basic questions were these: how do the frameworks fit into the Bill, and how will future arrangements be conducted if there is not a proper correlation between
the frameworks and the Bill, and indeed the principles behind the frameworks? That is something that we have all been asking the Government to explain.
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The noble Baroness, Lady Finlay, identified the tension between the devolved Administrations and the single market, but I think that most people who have had any exposure to the common frameworks process believe that it has been devised in a way that looks potentially like a very credible way of resolving that tension without removing it. It is recognised that there will be disputes which will have to be negotiated and that ultimately there will have to be dispute resolution, but the fundamentals are that it can be done constructively and with good will. Indeed, when the noble Baroness, Lady Hayter, told us about the negotiations she witnessed in the EU, she made the point that this was precisely how it was done, rather than some overriding super-body making the final decision—yet that is precisely what the Government appear to want to do through this Bill.
My noble friend Lady Humphreys is clearly concerned, first, about why this piece of legislation should be protected and the fact that it can and does amend the devolution settlements for Scotland and Wales, and gives the power to do so without any consultation with or reference to the devolved Administrations. This cannot be a respectful or constructive way forward. Ministers really do have to explain how they can justify that, and why they need those powers. The noble and learned Lord, Lord Mackay, said that he was a strong supporter of the common frameworks, and he demonstrated that, but he was concerned that they lack formal recognition, so his amendment seeks to ensure that.
This is a point that I made at Second Reading, and others have made. Given how well the principles behind the common frameworks have been developed, it is a real puzzle that those principles are not being incorporated into the approach to the UK internal market, and indeed why the common frameworks are not referenced in the Bill. The Government need to recognise the strong view that, without reference to the common frameworks in the Bill, there is a real suspicion that there is no proper link between what they are trying to achieve and what the common frameworks are working to do. The danger is that the common frameworks will be able to be set aside simply by the stroke of a ministerial pen in Whitehall.
I was going to say “my noble friend Lord Foulkes” —but perhaps he is my long-term sparring partner. The noble Lord would never have the temerity to take party-political credit for any initiative that he takes. However, I would remind him of my engagement—I am serious about this—in the Scottish Constitutional Convention, when Donald Dewar and I, along with others, worked very closely together to lay the foundations for what became the Scotland Act. That was done through quite robust debate, so I will say gently to the noble Lord, Lord Foulkes, that the Labour Party sometimes needs pushing, and I am not afraid to try to do that occasionally. Nevertheless, the noble Lord expressed sensible support for what is being proposed
and identified specifically the case for perhaps considering some form of qualified majority voting as a mechanism for resolving disputes. That is something which I have incorporated into amendments and have spoken of on a number of occasions and to which, in the previous debate, my noble friend Lord Purvis referred, using the Australian example.
The amendment tabled by the noble Lord, Lord Hain, and the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie, effectively summarises the basic approach because, although that is in support of the Northern Ireland protocol and the protection of the Northern Ireland position, it is in fact designed to protect all of the devolution settlements by ensuring that the principle of consultation and consent is built into the legislation. That seems to be absolutely necessary. The noble Baroness, Lady Altmann, said in passing that we were a federal nation. I have to say to her that that is not the case. We are perhaps lurching towards that, and indeed I hope we are, because I think that that is ultimately the way that we will have to resolve these tensions. However, where we can call it quasi-federal is where we have developed a basis of consensus, consultation and engagement, which is being prejudiced by this Bill and the lack of clear explanation of or justification for the measures being taken by the Government.
The noble Lord, Lord Dunlop, gave us a thoughtful contribution. It is something I hope the Government will reflect on. He first made the very clear point, in detail, about how the common frameworks have gone from a huge range to a very small area where there might be some degree of tension. The question he put at the end was: what is the necessity for these measures? If the common frameworks were, when they were set up, supposed to be comprehensive, why, if there are gaps, can they not be used to fill those?
The second part of what he said was: why are we in such a hurry? Why such haste? And what is the risk of divergence? The devolved Administrations have all said they are not seeking that. The examples that have been given, whether on food or the barley issue, for that matter, have been resolved for the very simple reason that it is in everybody’s interest to resolve them. The barley producers of England want a market in Scotland; the whisky producers of Scotland want to access the widest range of top-quality malting barley competitively, and that is the whole point. The process resolves it, and only in a limited number of cases are there likely to be disputes. So the Government, as the noble Lord, Lord Dunlop, has said in the past, are using a sledgehammer to crack a nut, or have a solution looking for a problem.
The noble Baroness, Lady Andrews, also asked where the gaps were and, essentially, why not make the extension? That is something I think the committee she chairs is going to look at in more detail, at the same time as we look individually at each of the frameworks that are put in front of us.
The noble Lord, Lord Rooker, gave us good examples of areas of divergence and how they can be resolved and how the very process of going through them throws up the commonality that some things simply do not work on a devolved basis, and this drives
people to find a solution. I have said to some of my SNP friends, who are agitating for independence, that the day after Scotland becomes independent, if that ever happens, England and the rest of the UK will still be there, and you will definitely need to have access to their markets and arrangements. You will still be negotiating and discussing, which probably explains why, regardless of the rhetoric, the Scottish, Welsh and Northern Ireland Governments have engaged very constructively in the common frameworks.
The noble Baroness, Lady Noakes, said that we should look through the other end of the telescope, but, in a sense, what I have just said makes the point that, yes, you can look at it from both sides; there is a huge driver to get agreement, but there are areas where there is also a very legitimate reason for divergence and an established process for allowing that divergence to happen. So the question you are left with is: why are the Government trying to take powers that do not appear to be necessary, urgent or proportional? This, again, was the point that the noble Lord, Lord Dunlop, was asking about.
The noble Lord, Lord Vaux, maintained the point that, effectively, the Bill could remove the very flexibility that has characterised the devolution settlement from this time and gave the current example of how the differences between the different Administrations about single-use plastics could surely be resolved in a way that does not require those that want higher standards to be forced to accept lower standards.
Ministers can protest all they like, but underneath all this is a concern that what is driving it are commercial pressures to get the cheapest, most cost-effective standards and force them across the whole of the UK, regardless of wishes. Nobody is suggesting obstructive blockages of the market are desirable, but, equally, overruling legitimate concerns is not desirable, either.
The noble Duke, the Duke of Montrose, identified the issue of the Sewel convention, which, I think, the noble and learned Lord, Lord Hope, suggested should become the “Sewel legal principle”, because it is the approach of not overruling the devolved Administrations.
So all these amendments are designed to get the Government to understand that the common frameworks are an effective mechanism that have all the ability to be used, and that if they are married to the right spirit of co-operation and good will and a dispute resolution, they can deliver what the Government want, but in ways that respect the devolution settlement and do not create, if I may say so, the grit in the oyster, which will produce not a pearl but, potentially, the break-up of the United Kingdom.
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