My Lords, the noble Lord, Lord Cormack, always worries me when he starts talking about Henry VIII. As any woman knows, we gird our necks a little tighter if there is a threat that that is coming back.
In some ways, this is a continuation of the same debate, which is about why on earth the Government put together a Bill in such a hurry, as we heard earlier, and with so little consultation with—or even consideration of, let alone agreement with—the very devolved authorities whose competences it seeks to amend. It is partly that suspicion which has necessitated a rather sad amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern. To have to add the wording that the powers in the Bill must be used only for the purpose for which they were designed seems extraordinary. That would not normally be needed, if trust and mutual respect had been there in abundance.
Similarly, the amendments requiring consultation with the devolved authorities before introducing regulations or guidance affecting them should never be needed. If Government-to-Government relations were working properly, it would be de rigueur that that had taken place. Clearly, those relationships are not working properly, and that is why we need the amendments: to establish or obtain what the noble
Baroness, Lady Bowles, called the proper conduct of devolution—or, as the noble and learned Lord, Lord Mackay, and others said, we have to get this right to protect the union.
I turn to the amendments in my name, Amendments 16, 41, 48, 63, 74 and 99. They make two particular points, one of which, as we have heard, is slightly at variance with those in the name of the noble Baroness, Lady Finlay. They are about whether any one part of the union should have a veto over something that may be of particular concern to the others, which is what the words “obtain consent” imply. Our words are “seek consent”, but make it an overriding obligation to do the necessary to try to reach full agreement. We also accept that there may be times when one party might hold up the process, at which point we will need some sort of dispute mechanism in place, which is something we ought to be discussing. As the noble Lords, Lord Cormack and Lord Naseby, said, maybe we should look at the two suggestions made today: my noble friend Lord Hain’s council of Ministers or, as the noble and learned Lord, Lord Hope, said, using the formula in the 2018 Act. But clearly we need to have thought about something like that before we get to Report, so we could add that.
But the principle, surely, is that the Government cannot simply start down the track of making regulations without first consulting. There was an issue about what consultation is—it is consultation before you even start the process. Handing over a finished draft instrument is not what I call consultation; you start at the beginning of the process. So they should not start down the track of making regulations without first consulting and then seeking to reach consensus with the devolved authorities. In a Bill about making a four-country internal market work, I would have thought that that was obvious—but history shows we need to nail it down. Surely, as I think the noble Baroness, Lady McIntosh of Pickering, said, we cannot believe that the Government would reject a requirement to seek agreement. It is motherhood and apple pie. For them to say, “No, we are not even going to seek agreement”, I think, would be an interesting response.
There is an issue about what all of this is about. Is my noble friend Lord Hain right to say that this, as we have heard, hastily written Bill is about trying to satisfy our US negotiating partners that they will have full access to the whole market and that the Government will not let anything get in the way of that? Or is it, as my noble friend Lord Liddle said, something perhaps in a way more serious, of trying to bring back control into the centre? I am not sure what the answer is to that. We will not go there tonight, but at some point, I think, we need to flesh out what is the purpose of some of this.
I turn briefly to my Amendments 41 and 48, the first of which would require the Government to consult with the devolveds before introducing legislation to amend the list of legitimate aims in Clause 8(6)—an issue touched on by the noble Baroness, Lady McIntosh. These are important—I know they sound a bit techy—because indirect discrimination is effectively excluded from the overarching principle if it can reasonably be considered as necessary to achieve a legitimate aim.
So the definition, the list of legitimate aims, is clearly key. Quite rightly, the Bill lists the protection of the health of people in Clause 8(6) as a legitimate aim—amen to that.
The problem, as my noble friend Lord Hain has said, is that the list of legitimate aims can then be amended by regulation. Now, perhaps adding to the list might not constitute a problem, and Amendment 35 —not in this group but in a later one—in the name of my noble friend Lord Stevenson and others, would indeed add some more categories to the list of legitimate aims. But they would be on the face of the Bill, not stuck in by regulation, and that is surely the proper way of doing it. The problem, of course, is that while at the moment human health and, indeed, the health of animals or plants are there, they could be removed by secondary legislation from the list of legitimate aims. That would then extend the areas in which devolved Governments would not be able to set standards for products sold in their jurisdiction. This is real stuff.
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We have heard a number of times about types of measures to protect the population against harmful products, including minimum alcohol pricing, increasing the age for legal purchase, setting limits on the hours of sales and single-use plastics; there are a number of others. It may well be that existing measures such as MUP could be safeguarded in, say, Scotland, but we are talking also about future measures, and therefore the issue of legitimate aims is key.
Amendment 41 requires the Government to seek the agreement of the devolved authorities before amending such an important part of the Bill. If the Government want more freedom to add rather than remove legitimate aims, I would be less worried—but the thought of removing security, public safety or the protection of health from the legitimate aims that allow particular measures should surely not be allowed without the agreement of all concerned. That is not simply because existing measures could suddenly find themselves labelled as discriminatory, but because it could halt future attempts to increase health or public security.
I turn finally to Amendment 48, which seeks to amend the regulatory powers in Clause 10 to amend Schedule 1. It covers similar ground, requiring the Government to seek the consent of the devolved authorities before any changes to the schedule of exclusions from market access principles. These currently include unsafe foods, for example—although sadly not public health. The key issue again is the need for any changes to this schedule to be made only after consultation, and hopefully agreement, with the devolved authorities. The issue is dealt with in more detail in a subsequent group. Here, as my noble friend Lord Liddle and others have said, we are talking about moving forward within our devolved system, not undermining it and not taking powers back to London. That is why the amendments in this group are so important.