My Lords, I shall speak to Amendments 1B, 1C and 1D in lieu, which are in my name. The fact that the Commons have disagreed with your Lordships’ amendments about the common frameworks process is a matter for regret, but they were good enough to give us a clear and simple reason. They told us that these amendments
“will create legal uncertainty, which would be disruptive to business.”
I took this to be a reference to what the noble Lord, Lord True, said when we were considering these amendments on Report:
“No one could know for sure, until the question was determined in court, whether a regulation or requirement, or a combination of regulations or requirements, was giving effect to an agreement reached within a common framework. There would be uncertainty as to whether or not the market access principles applied”.—[Official Report, 18/11/20; col. 1466.]
I can well understand the point that he and the other House are making, but I do not believe that it is incapable of being met, so I have added some words of my own to each of my proposed amendments to suggest how this could be done.
To be given the benefit of exemption from the market access principles, the regulation or exemption would need to state that it was their purpose to give effect to an agreement that had been reached through the common frameworks process. It seems to me that, if this were to be stated in the relevant instrument, the problem that the noble Lord referred to on Report would be overcome: everyone would know what it was and why it was there. No doubt there are other and better ways of achieving this, but my point is that, if there really is a will on the Government’s part to make this system work, a solution can be found. There is surely room for further discussion on this issue; the door must be kept open—and I am encouraged by some of the points that the noble Lord, Lord True, made in opening this debate. I ask your Lordships to invite the Commons to think again, and I will be seeking the opinion of the House as to whether we should do so.
Of course, I appreciate that it is not as simple as that; there are important issues of principle too. The Parliamentary Under-Secretary, Paul Scully, said in the other place that to legislate the common frameworks into the Bill would,
“not sit well with the flexible and voluntary nature of the common frameworks programme.”—[Official Report, Commons, 7/12/20; col. 601.]
I appreciate, as has been stressed many times in your Lordships’ House, that the whole purpose of the market access principles is to enable traders to do business without internal barriers to trade across the UK. It is about
“a job, someone’s pay packet at the end of the week”,
as the Minister, Chloe Smith, said in evidence to the Common Frameworks Scrutiny Committee last week. But it all depends on how this is done.
It has to be said, too, that the issues about market access and the problems it may create are not all one way. Spare a thought for the trader in one of the devolved nations who has to have regard to the relevant requirements of all the other parts of the UK when considering whether a good which does not meet his own area’s requirements is something that he can properly market in his own area. It is not sunshine and roses for everyone.
Simply to say that the market access principles do not apply to an agreed decision, which is all that my amendments seek to do, does not seem to me to justify the concern that this would deprive the common frameworks process of its flexible and voluntary nature. Whether a given policy divergence really does create what amounts to a barrier, given its purpose, nature and effect, should be a matter for examination and assessment: that is what the common frameworks process is designed for. It is not about creating barriers, but about allowing for policy divergence in ways that are found, by agreement, to be consistent with the internal market.
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The problem with the interaction between the common frameworks process and the market access principles is that, in the case of the principles, as the noble Lord has just been telling us, there is no room for any such assessment at all. Take a divergence about food standards, for example. Suppose that a devolved Administration secures agreement for a higher standard for its own purposes, because it has been judged that, overall, it was not a barrier to trade across the UK. This would be an agreement to which the UK Government were party, because that is what the process requires. It would, nevertheless, be incapable of effective enforcement because of the automatic application of the UK Government’s own market access principles—that is the conundrum. Traders from other parts of the UK who had no regard for the higher standard could simply ignore it, irrespective of how simple and easy it was to comply with. That is not where we should be going.
A balance needs to be struck here, if devolution is to be respected. We want this to be a United Kingdom internal market, after all. That means that it needs to suit the needs and aspirations of all parts of the UK, which may differ greatly from one part to another.
This is particularly the case for the smaller nations, which are part of our United Kingdom family. That is why the common frameworks process is so important and why it deserves support. Ministers still say they support it, but they have to do what they say. The two approaches to the creation of the internal market need to be reconciled if that process is to remain alive. That should not be beyond the Government’s reach, if they are willing to put their minds to it. I very much hope that they are, and that discussions on these important issues can continue before it is too late. I beg to move.