My Lords, it is a pleasure to follow the noble Lord, Lord Judd. I agree with him. Reflecting on this amendment, so ably moved by my noble friend Lord German on behalf of the noble Baroness, Lady Finlay of Llandaff, I was struck by the point made by the noble Lord, Lord Cormack. During the 20 years of devolution, none of us has had a unique monopoly on wisdom as to what devolution is. It has been a combination of people on a journey. The noble Lord started from a position of opposition but then perhaps found areas to support, while recognising
that there are still frictions within our union. Within my party, there has been a consistent element of support for delivering it.
I hope the Minister accepts that no one in this House wishes our union ill harm. No one wants the internal market not to operate in the best way that it can for the benefit of our businesses and our people. Clearly, there are nationalists across parts of the United Kingdom who have a different purpose, but when we are scrutinising this Bill, we want it to be better.
I want to reflect on the points made to the Scottish Parliament by the right honourable Michael Gove. He was asked why the Government was insisting on putting this legislation forward when it had not received the normal legislative consent Motions. Michael Gove said that these were exceptional circumstances. It is arguable whether all the component parts of this Bill—which creates the framework for an internal market with its long-term consequences—are both exceptional and necessary before the end of January.
The Minister still has to persuade many that the whole of the Bill is required by the end of the IP period, given that we are still awaiting legislative frameworks. As part of EU retained law, there is a standstill period for all those pieces of legislation anyway, so we question the Bill’s necessity. The Government insist that they need it to go through but, since the noble Lord, Lord Callanan, indicated in a previous group that it was drafted in a bit of a rush during the summer, it is right to ask the Government to think seriously about those elements that will have a significant impact on the ability of the devolved Administrations to legislate and of Ministers in Scotland and Wales to act in an executive way within their competences.
Perhaps the Government could reflect and insert some provisions into this legislation in order to reassure the devolved Administrations that the level of consultation to which we have been accustomed in the past will continue in future. As the Constitution Committee report clearly indicated, it is only in Clause 6 where changes would have an impact that the Government are proposing to consult with the devolved Administrations. There is no provision for what would happen if there were a dispute or if the consultation were to indicate that the devolved Administrations did not want the Government to continue on their chosen route.
Clauses 8, 10, 17, 19, 20 and 48 all contain areas where the Constitution Committee has highlighted changes that would have an impact on the devolved Administrations and their legislative competences, and where no consultation is proposed. These areas can be rectified without a change to the timetable by which the Government wish to move forward. This is a legitimate request on behalf of all noble Lords who have contributed to this debate.
In this group, it has been helpful to reflect on the areas where it has become the practice to seek consent for significant changes to the constitutional framework impacting on Scotland, Wales and Northern Ireland. Then there are secondary areas where—if there has been an impact—consultation has been the norm.
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The noble and learned Lord, Lord Mackay of Clashfern, was right, as was the noble and learned Lord, Lord Hope of Craighead, in a previous group, that this is not a new debate. We have had it within the withdrawal proceedings and, significantly, within the Scotland Act and the Government of Wales Act. I think we all thought that we had reached some form of consensus on where it would be appropriate for consultation to be carried out; the outstanding area would be disputes.
As I mentioned on a previous group, some of the changes likely to be made would ordinarily come within the Sewel convention. There is quite a bit of misconception about the Sewel convention and its operation, because often we see our politics within the constitution and the prism of a UK Government and a Scottish Government seeking independence. However, between 1999 and the Brexit legislation, a legislative consent Motion was only once denied in the Scottish Parliament, over the Welfare Act. During the 2019-20 Session, even with everything that is happening at the moment, 18 legislative consent Motions have gone through the Scottish Parliament. Only this legislation has caused significant difficulties.
We are not arguing for a carte blanche to roll back on an approach that works remarkably well. When I was a Member of the Scottish Parliament in opposition, the SNP constantly thought that a legislative consent Motion gave away powers of the Scottish Parliament, yet the SNP has used them more than any other devolved Administration. It is a very useful tool, but it works on two principles: whether there would be a change of the law over a devolved matter, or whether it would alter either the legislative competence of the Parliament or the “executive competence” of Scottish Ministers. The clauses that the Constitution Committee highlighted would all come under the category of changing the executive competence of Scottish Ministers. Therefore, a mechanism of consent would be fully appropriate.
We come now to the two areas where it is appropriate. The first is whether they would require the consent of the devolved Administrations, and what would happen if that consent was refused. Would it then come back to the UK Parliament to legislate over that refusal? If not, then, as others speaking on this group have indicated, some form of dispute mechanism will be important, because the internal market Bill is very different from other pieces of legislation. This is an ongoing piece of legislation about the operation of the market. It is not a stand-alone piece legislating on behalf of a devolved Administration, after which it would be fully within the operation of the Ministers in Wales, Scotland or Northern Ireland, never being referred back to this Parliament. This legislation would be ongoing and, given that many of the regulation-making powers within the legislation would be to update definitions or exclusions, the areas where it is particularly problematic are those where legislation on the statue book is changed. The UK Government would then determine the validity of that change.
That is why I asked the Minister to clarify the definition of “substantive”. One area where there would not necessarily be consultation is over a piece of
legislation that is not covered under the Bill at the moment because it is already in place. My noble friend Lord German mentioned single-use plastic items and renewables, and I have used other examples. What if there are substantive changes in the terminology? I asked the Minister to clarify this and he said that there would only be a substantive change if the outcome was different. As my noble friend Lord German indicated, we will not know the outcome until further down the line. The policy intent is the key thing. That is one example of why consultation is so important.
Finally, on a previous group, the noble Lord, Lord Callanan, indicated that where there have been areas of disagreement, the protocol for avoidance and resolution of disputes would be used—and that is covered in the 2001 memorandum of understanding. That is not an appropriate mechanism for how the internal market will operate going forward, so it would be helpful to know how the Government intend to deal with disputes. The internal market will operate on the basis not just of a dispute between the UK Government and Scotland alone. If the UK Government take a view on which Wales and Scotland have a differing position, how will that dispute among the four nations be resolved? Without knowing what the dispute process is and the justifications for consultation, I fear that the noble Lord, Lord Liddle, is right: we have to ask what the motives of the Bill are.
I do not think that we want to get there at this stage. We want to work constructively with the Government if they are willing to listen, and one area where they could work progressively is by recognising that in areas that would have an impact on devolved legislation, which ordinarily would be done through a Sewel Motion, the commitment to consult would be the bare minimum. Then we can have a discussion about the fact that, if there are significant impacts, seeking the consent of those Administrations will be important.