My Lords, I am very grateful to the noble Lord, Lord Fox, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to this amendment in my name.
The amendment seeks to insert a new clause into the Bill with two objectives. The first is to ensure that the devolved Administrations are consulted before any regulations are made under this part of the Bill
“as to their impact and effect on the marketing and use of products in the areas … over which they have legislative competence”.
The second is to preserve agreements made under the common frameworks from being nullified by these regulations.
The first part requires very little introduction. The Bill extends to England, Wales, Scotland and Northern Ireland, and consumer safety standards, which is what the Bill is all about, are devolved matters in relation to Wales, Scotland and Northern Ireland. That has been acknowledged by the Government as is noted in paragraph 10 of the Explanatory Notes. Legislative consent is being sought, as one would expect, and indeed is still being sought, for the provisions that engage the legislative consent process.
That may be difficult to achieve because, while the Bill makes provision about what is to happen in each of the jurisdictions within the United Kingdom, it does not contain any provisions that require the consent of, or at least consultation with, the devolved Administrations before the wide-ranging powers to make regulations under Clauses 1 and 4 are exercised.
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As I am sure the Minister understands, the Sewel convention does not extend to delegated legislation—that is the concern that I have in moving this amendment—so it cannot be said that UK Ministers are required by convention to seek the consent of the devolved Administrations before exercising these powers. There is at least a risk that, unless something is said about
this in the Bill, these powers could be exercised to engage matters that are not reserved to the UK Ministers in ways that would impinge significantly on devolved competence without the devolved Administrations being involved.
The Constitution Committee has recommended on numerous occasions that in matters of this kind engagement with the devolved Administrations should be a formal requirement. In paragraph 34 of its report on this Bill, it suggests that clarification is needed about the processes of consultation and consent that the Government intend to apply, if the powers in this Bill are used to make regulations in areas of devolved competence.
To some extent, my amendment is a probing amendment, but I suggest that it offers a sensible solution to a point of very real concern to the devolved Administrations. I am not going as far as I sometimes do to ask that consent should be required before these powers are exercised. There is no need to go that far because close and timely consultation, which is what the Constitution Committee is contemplating, should be enough to sort things out in a way that satisfies both sides. Consultation, not consent, is what this clause would require. I hope that the Minister will feel able to assure me that the Government will take this point seriously and perhaps bring forward an amendment that deals with it in their own words for consideration on Report.
The second objective relates to the common frameworks, about which I need to say a bit more. They were created to ensure that a common approach was taken to ensure that some measure of consistency was achieved across policy areas returned to us from the EU which intersect with devolved competence. That is rather convoluted language, but it makes the essential point that it is inherited from the EU and, under the EU system, devolved Administrations had a measure of independence about how they dealt with various matters. Their engagement with devolved competence matters because one of the features of the way in which these matters were dealt with in the EU was that it enabled the devolved Administrations to diverge from other parts of the UK about how matters that were within their devolved competence, for example, with regard to the pasteurisation of milk or single-use plastics, should be dealt with.
The way the common framework system works is that there is a process of consultation that enables a proposal for divergence to be discussed to enable its effect, if any, on the other parts of the United Kingdom to be identified and assessed. It is only if, and when, agreement has been reached that it would not be to the disadvantage of the other parts of the UK that the proposal can proceed to enactment.
This system was up and running when what became the United Kingdom Internal Market Act 2020 was introduced. The market access principles that the Act introduced were designed to ensure that there is a single market across all parts of the UK. Central to its provisions is the principle that whatever is done by way of marketing or the use of products that is compatible with the framework in one part of the UK can be done
anywhere else within the UK irrespective of what the local legislative framework may provide. In other words, any provision about the marketing or use of products in one part of the UK that may diverge from what applies elsewhere will, in practice, be unenforceable. That is not how the common framework system is designed to operate.
I was able, with the much appreciated support of the Labour Party and the Liberal Democrats, to persuade the Government in the course of discussions about the internal market Bill to insert a provision in what is now Section 10 of that Act to enable the Secretary of State by regulation to exclude the application of the UK market access principles to enable effect to be given to an agreement that forms part of a common framework agreement.
Subsections (2) and (3) of my proposed new clause are designed to give a common framework agreement the same protection against what product regulations may provide for. Without that protection, agreements of that kind run the risk of being rendered unenforceable. As with Section 10 of the United Kingdom Internal Market Act, I leave whether to exercise the power to the discretion of the Secretary of State. That is what the Government agreed to then, and I hope that the present Government will feel able to do the same in the case of this Bill. It is important because in view of the wide ranging-nature of the Bill, which everybody has commented on, it is quite impossible at this stage to work out exactly what is going to happen when these powers are exercised. That is why the protection I am seeking to insert into the Bill is so important for the protection of the devolved Administrations. I beg to move.