My Lords, I echo the words in particular of the noble Lord, Lord Wigley, and the noble Baroness, Lady Ritchie. The noble Lord, Lord Wigley, spoke eloquently about the situation in Wales and the noble Baroness, Lady Ritchie, about Northern Ireland.
Amendments 61 and 62 are also in the names of the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie. I also support Amendment 57, tabled by my noble friend Lord Stevenson of Balmacara. I want
to focus on the appalling record which this current Administration have in their approach to the elected, devolved Governments and legislatures of Wales, Northern Ireland and Scotland.
The United Kingdom is currently engaged in what are without doubt the most crucial trade negotiations of the last 50 years: the negotiations about our future trading arrangements with the EU, our largest trading partner. But, unlike most such negotiations, these are not about securing additional benefits for our businesses from a liberalisation of trade: no, the stakes are even higher, because these negotiations are about preventing the introduction of new barriers to trade which all have the potential, even if an agreement is reached, to cripple our manufacturing industry, with a loss of jobs in sectors which are particularly important—for example, to Wales, aerospace and automotive—leaving the devolved Governments with their responsibility for economic development to pick up the pieces.
The negotiations with the EU will also directly impact on issues wholly within devolved competence, such as health and education, since a failure to negotiate mutual recognition of our medicines licensing regime, for example, will lead to increased costs and delays in accessing new treatments, while the failure to secure continued participation in the Erasmus+ programme will impoverish the educational experience of thousands of young people in Wales and indeed across the United Kingdom.
What opportunity have the devolved institutions had to influence, let alone shape, these negotiations? Mike Russell, the Scottish Government’s Constitution Minister, pointed out in June that
“we had virtually no involvement in producing”
the negotiating guidelines or legal text published by the Government,
“and indeed only saw the legal texts—with no possibility of changing them—24 hours before they were published.”
Jeremy Miles, the Minister for European Transition in the Welsh Government, has talked about the
“absence of meaningful Ministerial engagement, where UK Ministers discuss and seek to agree with us not just their formal starting position but the approach they expect to take as the negotiations evolve.”
The Joint Ministerial Committee on European negotiations, whose terms of reference are to “seek agreement” on the approach to the negotiations, did not meet at a key time for preparing for these negotiations between 28 January and 21 May of this year. On top of this frankly insulting approach, the Government have now published their internal market Bill, which not only threatens to break international law—and is proclaimed as doing so—but is an outrageous and outright attack on the very basis of the devolved settlements in this country. That is why there is a great deal of concern in all the devolved Administrations.
In this context, it is surely for us, above all in your Lordships’ House, to stand up for the rule of law and the rights of political institutions that were put in place over 20 years ago to protect and promote the interests of those parts of the United Kingdom, each with a distinct identity and social and economic needs, which had been marginalised by the preceding majoritarian political system. That is why my amendments and others
which I shall support, such as Amendments 26 and 50, seek to entrench the role of the devolved Governments and legislatures in future trade negotiations that will inevitably shape, and potentially restrain their freedom to exercise, their powers in respect of issues such as food standards and environmental regulation, which sit squarely within their competence.
The devolved institutions are, quite rightly, obliged to implement international agreements which are entered into by the UK Government, even where the matters involved are otherwise under their control. It cannot be right that they are bound in this way without having any rights to influence the outcome of the negotiations that result in such obligations being imposed on them.
Underlying these constitutional issues is the kind of state the UK wants to be: either one run by diktat from the centre, as Boris Johnson’s Ministers are doing over trade negotiations with the European Union and in this Bill—and especially in the internal market Bill—or one run on the principle of democratic consent and mutual respect for all the Governments: the UK’s and those of the devolved Administrations.
But there are practical policy issues at stake as well, and here are my main concerns. Trade deals today, perhaps with the exception of a future UK-EU one, if there is one at all, extend into a wide range of social provision and domestic policy issues, such as workers’ rights, environmental protection and safety, product and food safety regulations, and procurement. As a result, trade deals are often politically contentious: the more comprehensive they are, the more they are likely to be seen as leading to a loss of regulatory autonomy and democratic accountability. As such, it is wrong to see free trade agreements as purely “business” or “trade” concerns: they reach right to the core of responsible government and public welfare. Many of the areas covered by free trade agreements—for example, agriculture, the environment, forestry, health and economic development —are within the competence of the devolved Administrations.
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Not everybody wins from trade liberalisation. Opening domestic markets to foreign competition can have adverse effects on some domestic industries. These industries might be more prevalent in some parts of the UK compared with others—Welsh lamb farmers, for example, or Scottish distillers. It is not unknown for trade agreements to be used by Governments to circumvent domestic opposition and push through regulatory reforms—so-called “policy laundering”.
The devolved Governments have been explicit in their requests for formal consultation and engagement from the UK Government on future free trade agreements. The Department for International Trade itself stated that
“we intend to continue this collaborative approach”—
with Scotland, Wales and Northern Ireland—
“as we develop the UK’s future trade policy.”
Admittedly, the DIT has been better at engaging with the devolved Administrations than the Ministers currently negotiating with Brussels.
Formal consultation and consent can bring three main benefits: first, it protects the interests and represents the industries of all the UK when it comes to negotiations, not just those of England; secondly, it makes sure that the potential impact of such free trade agreements across the whole of the UK are understood in detail; and, thirdly, it enhances the democratic legitimacy of the free trade agreements. Failure to include the devolved Governments at all will lead to conflict both in terms of local interests and the impact of these free trade agreements, and in terms of sub-national and national government within the UK. These will only bring economic, social and political harm to the union.
The inclusion of the devolved Governments is made all the more crucial by the United Kingdom Internal Market Bill. This would, through the principle of mutual recognition, create a situation in which any good that meets relevant regulatory requirements relating to sale in the part of the UK that it is produced in or imported into can be sold in any other part of the UK without having to adhere to the relevant regulatory requirements in that other part.
If Scotland and Wales are excluded from having an input into these trade talks, along with Northern Ireland, they will face the double whammy of not being able to protect their markets from imports they see as potentially harmful to domestic industries, as well as their domestic legislation on product and food standards being rendered null and void because it will apply only to locally produced goods. There is literally nothing the devolved Administrations could do to protect their local interests and concerns—something that has been to the health and benefit of the UK for the past 20 years of devolution.
These amendments are the “bare bones” when it comes to ensuring that a free trade agreement will be in the interests of the UK as a whole. They mean that Scotland, Wales and Northern Ireland will see the details of a free trade agreement in advance and will be able to scrutinise it, and that their consent will be required. These amendments should be seen as ensuring the balance and health of the union, not as undermining it.
Although there is relatively good communication between civil servants in Whitehall and the devolved Administrations on progress and issues raised in the UK’s negotiation of free trade agreements, it is no guarantee against serious mistakes or dangerous decisions. We have to show trust in the elected representatives, democratic legislatures and responsible Executives in each part of the UK. To need their consent for a free trade agreement that could have such a direct impact on their economy, policies and regulatory effectiveness is surely a reasonable expectation of any pro-union UK Government, as this Government purport to be.
I understand why this Government may be wary about calling for a consent power from devolved Governments, which might be implied by Amendment 61, in my name and those of my noble friends, on the outcome of trade negotiations, because, under the current system, this would enable any one of the devolved nations to perpetually block a trade agreement: for example, the Scottish nationalists could simply refuse to endorse a trade agreement that would benefit the rest of the country, leading to deadlock.
But Amendment 61 does not explicitly call for a consent power. It requires the consent of the devolved Governments, ideally—as my noble friend Lord Wigley mentioned and the Welsh Government advocated—through a Council of Ministers model, with a form of qualified majority voting in place of the current joint management committee, which has been dysfunctional and, frankly, worse than useless. This model would require the UK Government—since it represents England, with its disproportionately large population and share of GDP—to secure the agreement of at least one devolved Administration before overriding any devolved Administration that wanted to exercise a veto.
While many federal countries have arrangements that give the lower tier of government some control over international negotiations, none, except Belgium, gives individual substate territories a veto. Labour Welsh Ministers and our party’s Front Bench have been clear in the past that they would not support the SNP and Scottish Government’s contention that each devolved Administration should have an absolute veto over each trade agreement. My noble friend Lord Stevenson’s Amendment 57 requires devolved Administration consent, although admittedly in a context where Parliament would have proper oversight over trade policy negotiations, which is certainly not the case under the Bill.
Therefore, I hope that the Minister, in responding, will support the principles behind our two Amendments 61 and 62 and, if he has any technical objections rather than objections in principle, will come back at Report with government amendments that we can all support.