My Lords, the Minister will no doubt be pleased to hear that I will not ask questions about whisky even though, after nine hours on this Bench, it seems to be at the forefront of my mind right now. I do not know why but a nice glass of whisky would be rather welcome.
I want to follow on directly from the noble Baroness, Lady Neville-Rolfe, and expand on her very good second point about organisations that are not within the Schedule 2 exclusions but may, for example, seek services that have a specific characteristic of one of our home nations or additional requirements—such
as having the capacity to speak the Welsh language, which would be important for the provision of certain services in parts of the United Kingdom, or, in the highlands of Scotland or certain parts of Glasgow, proficiency in the Gaelic language. Given that these were covered in the European Union elements, which the Minister argued previously were restrictive but which are actually broad and allowed this trade to be conducted properly, I hope that the Minister can respond as to why those elements would not be covered in this Bill and whether there would be the ability to have some of the specific requirements with regard to regulatory requirements that have specific characteristics.
Aside from language and other conditions with regard to equality legislation, which would be covered under putting services to contracts, I notice that transport services are excluded but water services are not. As the Minister knows, the provision of water services is distinct in our four nations. There are separate industries and these will not be excluded. I would be interested to know whether the current contractual arrangements are out of scope of this legislation because they are current. On the non-discrimination principles in the services sector, I have a concern about the distinct nature of the legislation for the Scottish water industry, which is a public body with one shareholder—the Scottish Minister—and whether an English service provider would be able to challenge the provision of Scottish water services because they are not excluded from this legislation. I would be most grateful if the Minister could allay my concern about that.
Similarly, the provision of water in Wales is a different legal entity—it is a mutual approach. Many private enterprises in the provision of services, as we know, are of an international nature. There is an even greater concern that if, for example, an American service business, through a trade agreement with the United Kingdom, had a brass plate enterprise in the City of London with American shareholders, that might be the gateway for it to challenge the mutual model in Wales or the approach in Scotland. I hope that the Minister can allay my fear about that.
10.30 pm
The second point I want to raise returns to the issue of building regulations. This was mentioned by my noble and learned friend Lord Wallace of Tankerness and me at Second Reading. Building services are not within the scheduled exclusions either. Services provided by a person exercising functions of a public nature are within the exclusions, but building regulations are not. Under requirements in Scotland for service providers to build to a certain set of standards—set down in Scottish building regulations that predate devolution and EU membership—an English company would be able to bid for the contract as they would at the moment. However, building certificates are currently issued only if the work is completed to the standards of Scottish building regulations. As there is no exclusion under this Bill, any contractor constructing would be able to challenge the requirement for the building to satisfy Scottish building regulations if they make that contract, to quote the legislation, “less attractive”. This might be, for example, because construction under Scottish building standards could be more expensive
than constructing under English standards. They would be able to challenge the requirements insisting that they construct to the building standards.
I ask the Minister for specificity on what “less attractive” means because of the introduction of subjective terms into what will be an objective process, without a clear definition of what “less attractive” means. One service provider in one part of the UK could consider service provisions more attractive because they may have higher environmental standards or greater cultural input. Another potential contractor, who may see those aspects as additional costs, might see that as less attractive. Therefore, I would be grateful if the Minister could give specific examples of what “less attractive” means, as asked for by the noble Baroness, Lady McIntosh. With so many grey areas, we are unfortunately in the realm of requiring Pepper v Hart statements from Ministers at the Dispatch Box, because Ministers’ intentions will have to be interpreted.
When I asked the noble Lord, Lord True, for the definition of “substantive changes”, his answer was perplexing. He said that a substantive change, for both goods and services, is a change of outcome. We know that many of these regulations are phased in over time, because the outcome of the reality of that legislative move is usually down the line. That is why many will have sunset clauses, as with the banning of household coal purchases in England being phased in. Similarly, the environmental measures in Wales and the deposit scheme in Scotland are being phased in over several years. It is impossible to judge at the outset of some of these measures what the outcome will be. Many will be reviewed to consider the outcome. Therefore, if the definition of a substantive change is linked to outcome, that will simply not be considered robust. Does the Minister have further explanations of that?
In Clause 16(5)(c)(ii), there is a curious difference between the definition under services and the “substantive change” definition under goods. On services, the requirement is not considered if it
“comes into force, or otherwise takes effect, on or after the day on which this section comes into force if it re-enacts or replicates (without substantive change)”.
For goods, it simply states “re-enacts without substantive change”. For services, it says “re-enacts or replicates”. Does it simply mean that it is a re-enactment? I do not know what “replicates” means as far as this is concerned. What is a replication of a regulatory requirement that is different from a re-enactment? I would be grateful if the Minister could respond to those points?