My Lords, I have put my name to Amendments 35 and 51, which have a number of near relatives in this group. The noble Baroness, Lady Noakes, reminded us earlier today that the purpose of the Bill is to facilitate trade and that different rules in different jurisdictions create costs to business and so may operate against the consumer interest. That is a highly respectable economic argument against devolution, but devolution has been implemented and the logic of devolution is diversity—including, as the noble Lord, Lord Liddle, said, the ability to experiment.
A devolved power to regulate is valuable only if it can be used to give effect to a policy objective of a devolved Administration. Its use will be pointless and damaging to businesses in the devolved territory if non-conforming goods, unencumbered by the higher local standards, have to be admitted from elsewhere. A single market that inhibited the rational, proportionate and non-protectionist use of devolved powers in pursuance of vital policy objectives would put devolution into reverse. This is shown by the fact that it was deemed necessary to exempt existing measures from the market access principles. It would also, of course, be a never-ending source of grievance for nationalists and separatists.
In connection with that, there are two puzzling features of the Bill. The first is the small number of aims that it even acknowledges as legitimate. I do not, myself, insist on all the drafting of Amendment 51—I recall that the European concept of sociocultural characteristics mystified the courts during the Sunday trading litigation—but why is there no place in the Bill for aims as basic as environmental protection save, curiously, in relation to fertilisers and pesticides, and consumer protection? If aims as important as the protection of public safety and security may justify indirect discrimination, as Clause 8(6) provides, why must those same aims, however compelling the circumstances, give way to outside business interests in every case of direct discrimination or mutual recognition of product requirements?
The noble Lord, Lord Callanan, said earlier that we need not slavishly copy the EU single market and he is right—successful, as I am sure he will acknowledge, as that single market has been. However, with respect to him, that is not a sufficient answer. The issue did not go away when we left the EU, and it needs to be addressed on its merits and with proper respect for our own devolution settlement.
The second puzzling feature is the patchy treatment of such aims as are acknowledged, particularly public health. That aim is most broadly expressed in Clause 8(6), but as a potential justification only for indirect discrimination. Paragraph 1 of Schedule 1 provides a general exclusion relating to the movement of pests and disease but paragraph 2, on the movement of unsafe food and feed, applies only to mutual recognition while paragraph 5, on public health emergency, applies only to direct discrimination. The problem with defining permitted public health derogations in such a limited and piecemeal fashion is that, outside the scope of those derogations, policies motivated by public health, however necessary and well-designed they may be, must always give way to trading interests, without any ability to balance the competing factors.
An injection of principle is needed here. That principle, I suggest, is that:
“All the exceptions should apply to the entire panoply of market access rules.”
Those are not my words but those of Dr Peter Oliver, practitioner and author of the leading academic text on the free movement of goods, commenting on the Bill on the “EU relations law” blog. The same principle infuses Amendment 52A in the name of the noble Lord, Lord Young of Cookham, and I support it for that reason. Its list of legitimate aims is disappointingly short, but since the noble Lord has also put his name to Amendment 35, perhaps there is nothing between us on that. To accept that all the exceptions should be capable of applying to all the market access rules need not cause trade to suffer, because the application of those derogations would be regulated, as it is in federal and devolved jurisdictions across the world, by strictly expressed constraints based on necessity, rationality and proportionality.
If the Government are concerned about their ability to include devolved markets in a US trade deal, I add that countries from Canada to Switzerland—and, indeed, the EU—have proved perfectly capable of entering into international trade agreements irrespective of their internal allocation of powers. Consultation, consent and co-ordination are surely the keys.
Most of the amendments in this group would function as shock-absorbers. Their purpose, as I see it, is not to wreck the Bill but to remove genuine grievances on the part of the devolved Governments, weakening the case for separatism and rendering the market access principles, in the areas where they may be necessary, operable in the long term. I hope they will be viewed as the constructive proposals that I believe them to be.
Finally, I endorse the strong comments of our committees, and of other noble Lords, as regards the excessive and extremely troubling powers given to the Secretary of State by, among others, Clause 8(7) and Clause 10(2). In this group, Amendments 39A and 47A,
in the name of the noble Lord, Lord Young of Cookham, would retain those Henry VIII clauses, but restrict their use to the adding or broadening of legitimate aims and exclusions. We would be authorising King Henry to act benevolently, but not, in the phrase attributed to Sir Edward Leigh, as “a bastard”. That course, though not for the constitutional purist, has a certain pragmatic attraction, at least for me.