My Lords, I am grateful to the noble Lord, Lord German, for introducing the previous group in my name. Technical difficulties were compounded by a timing clash on legislation in Grand Committee.
My amendments in this rather large group seek to achieve three different objectives which are in many ways complementary to one another, but in what is perhaps a belt-and-braces way. Amendment 54 would insert a new Schedule 1. It perhaps more properly belongs with an earlier group, because it is intimately related to Amendment 6 which we debated on Monday. Although Monday no doubt already seems a distant memory, your Lordships may recall that Amendment 6 was intended to restrict the application of the market principles to policy areas where an attempt had been made to develop a common framework but agreement had proved impossible to reach. The proposed new Schedule 1 provides a list of areas in relation to which regulations may be brought forward to apply the market access principles. It is a list of those areas where common frameworks which require legislation are currently in development.
It should be noted that this list is not intended to be unamendable. Obviously, over time, the list will need to change. Should the Government ever be able to identify an area which is not already in the common frameworks programme but where they believe there is a serious threat to the internal market, something which the Minister has so far singularly failed to point out, Ministers will be able to add to or amend the list by statutory instrument, having consulted the devolved Governments. I emphasise “having consulted”, because there is deliberately no requirement to obtain the consent of the devolved Governments in this instance.
I note that the Welsh Government, who originally drafted these amendments, have gone to great lengths to allay the potential anxieties of Ministers here. I think it is a fair-minded and sensitive strategy, in contrast to some of the things that we have seen, because neither one nor all the devolved Governments could veto the inclusion of new subjects in the list of areas to which market access principles could be applied by regulation.
I now turn to the second block of amendments in my name in this group: Amendments 33, 34, 50, 55, 56, 60, 80 and 95. They all have the same objective: to increase the scope of potential exceptions to the application of the market access principles. At Second Reading, many noble Lords pointed out that while the Government refer to the precedent of the European Union in seeking to impose the market access principles —something which one might have expected would rather stick in the throat of Ministers—the comparison is inexact. European legislation frequently gives discretion to member states, and therefore sub-state Governments, according to their powers and competence, to vary the approach to standards for goods, and indeed services and professional qualifications, where there are sound public policy reasons for doing just that.
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To take an example noble Lords have used, the directive on single-use plastics allows Governments to choose whether to ban all, or only some, of the nine types of materials listed in the directive. Another example is that of genetically modified crops, where Governments can choose whether or not to ban them, and Administrations in different parts of the United Kingdom have made different choices.
Amendment 50 therefore seeks to add a much broader list of public policy exclusions from the market access principles in respect of goods in the body of the Bill, instead of in a schedule. Amendments 33, 34, 55, 56 and 60 are all consequential on this change.
Amendments 80 and 95, in similar fashion, seek to provide the devolved Governments with more scope to protect devolved competence in respect of services. The Bill as drafted would only allow direct discrimination, itself a somewhat biased terminology to use, of a decision by a legislature to exclude service providers operating at a lower standard in another part of the United Kingdom—and that is in the case of a public health emergency. Amendment 80 would extend this to include also any other overriding reason related to the public interest. Thus, for example, were the Welsh Government to decide that they wanted to introduce a national licensing system for individuals who undertook body piercing—because of the risk of health and well-being being damaged from botched operations—they would be able to ban body piercers who might legitimately be able to practice in England where there is no such requirement. Without this amendment, that would not be so.
Amendment 95 would allow a devolved Government to use the justification of a “legitimate aim” of public policy where regulation directly discriminates against service providers from the other parts of the UK. No doubt the Minister will argue that this leaves too much discretion for the courts to decide what constitutes an overriding reason related to the public interest or a legitimate aim. But I would say that we in this House believe that there is a greater threat to the constitutional order from the overreach of the ministerial powers than there is a threat from the judiciary.
I would add here that there are other amendments in this group which seek the same objective, and which I support; notably Amendment 36, from my noble and learned friend Lord Hope, and Amendments 35, 51, 57 and 58, from the noble Lord, Lord Stevenson of Balmacara.
The final amendment in this group, Amendment 174, seeks to resolve a conundrum which has occupied your Lordships’ House on other recent Bills, notably the Trade Bill and the Agriculture Bill: we have a Government that insist that the idea of deregulation in food standards or environmental standards is an anathema to them but who robustly reject any attempt to put guarantees to that effect in legislation. Amendment 174 gives the Government a light-touch way of demonstrating that this commitment is genuine and to prevent, without further primary legislation, any subsequent, less principled Government embarking without further let or hindrance on a deregulatory spree. It would require any Government, in introducing legislation relating to areas in which the market access
principles might apply, to have due regard to the need to maintain high levels of protection, and to publish an analysis of whether the measure in question would maintain, increase or reduce such protection. This would not prevent a legislature moving ahead with legislation which lowered standards, but it would mean that it would do so in the full knowledge that that is what it was doing.
I said at the start of this speech that these amendments were belt and braces in approach. If the Minister were inclined to accept the approach of limiting the application of market access principles to areas where it has proved impossible to reach agreement on common frameworks, I and my colleagues might feel less determined to pursue the other amendments in this group. Conversely, only if the Government were to bring forward similar amendments to widen the public policy exceptions and increase the scrutiny of whether a Government are diluting protection would I be willing at this stage to think again on the amendments, which would make it impossible for the Government to short-circuit the patient work of agreeing common frameworks. I return again to the theme of building consensus and building agreement. That is the way for us to move forward as a single United Kingdom.