This is an exceptionally long post on an exceptionally important subject – unless you’re a corporate media or BBC journalist in Scotland it seems!
For some weeks now the corporate media and BBC’s coverage of the passage of the UK Single Market Bill through Westminster has made much of the admission that it will breach international law. It has also provided some insight into the implications for Northern Ireland and the Good Friday Agreement. However, the media across the UK, and notably here in Scotland, have given scant attention to its implications for devolved government beyond the withholding of consent to the Bill by Holyrood.
However, this week many in the House of Lords came out in what proved to be clear, forceful – indeed sometimes explicit – endorsement of the view of the Bill held by the Scottish Government.
Before going further, for context it’s worth recalling this recently from Andrew Bowie, Conservative MP for West Aberdeenshire and Kincardine: “this Internal Market Bill, is just the start. The UK Government is back in Scotland. Get used to it.” So one ask from me – once you’ve read any or all of what follows from the House of Lords debate, revisit Mr Bowie’s revelation – if this is ‘just the start’ then heaven help Scotland!
Step-up the House of Lords!
I am no apologist for the House of Lords but given that the institution still plays an important role in the UK system of governance its debate on the Internal Market Bill (held on 19 and 20 October, 2020) was truly remarkable for the many scathingly negative contributions from members across all parties and none on the Tory government’s Bill. And what was remarkable was the number that made substantive contributions concerning the threats in the Bill to the devolution settlement: these in effect refuted the claims of the Tory Government in Westminster and their supporters in the Holyrood Parliament.
It’s worth remembering these are establishment Unionists lining up to condemn the Tories’ Bill and in effect endorse the Scottish Government’s reasons for opposing this Bill. What follows is a small selection of many possible ones that could be given in illustration.
‘Devolved powers are rendered worthless”
Lord Hope of Craighead (Cross Bench): ‘The devolved powers are rendered worthless by this new system. UK Ministers are given powers to do things which contravene the devolution settlements without consultation, let alone consent. The opportunity to create an internal market by agreement through the continued development of common frameworks – is being undermined because it is being ignored. The common frameworks are not even mentioned in the Bill. ‘
‘The effect of the Bill has been described as a “power grab” by the Scottish National Party. I am not given to hyperbole—which I thought this was—but now, having read the Bill and the well-founded and withering report of the Constitution Committee, I can see why this expression is being used by them and now in Wales too. There is something very far wrong here; …’
Annulling elements of the devolved settlement
Baroness Hayter of Kentish Town (Lab); ‘Within the EU, common standards, mutual recognition, labelling, testing, professional recognition—or whatever—were decided by consensus across the 28, with MEPs from our four nations signing off the various measures. Our exit repatriated powers to the UK, but they included powers in some devolved competencies.
So how did the Government react? Did they set up a mechanism akin to EU co-determination, designed with the devolved Administrations? Did they build on the common framework efforts already in play? No, they took to themselves significant repatriated powers, annulling elements of the devolved settlement, to replace a system that had evolved slowly and by careful negotiation over decades by government edict …. They sweep state aid to themselves and give a role to the CMA, which is unrepresentative of the devolved nations.
The Bill grants UK Ministers powers on mutual recognition without any input from the devolved Administrations. So if England, for example, imports chlorine-washed chicken, consumers in Aberdeen and Aberystwyth could find it on their supermarket shelves without any say by their elected Governments. Similarly, the Bill’s lack of a public health exclusion from market access principles makes it difficult for all parts of the UK to implement policies to reduce harms from alcohol and tobacco, for example, or to tackle environmental harms.’
“.. this House’s Delegated Powers Committee describes the Bill as a constitutional power grab, apparentlyhorrified by its “extraordinary, unprecedented powers”, which allow Ministers to amend or repeal parts of this Bill—or indeed any Act of Parliament or statutory instrument.”.
Most dangerous and baffling legislation in 23 years
Lord Newby (LD): ‘My Lords, this Bill is, on a number of grounds, the most dangerous and baffling piece of legislation to come before your Lordships’ House in the 23 years since I became a Member. … It is baffling because none of its other provisions are necessary at all to meet its ostensible policy goals.’
Scope of devolution being restricted, unprecedentedly without consent
Lord Wallace of Tankerness (LD): ‘Nor, indeed, is there any reference in this Bill to the principles of subsidiarity and proportionality, which also underpin the current EU framework. As a result, the scope of devolution is restricted, unprecedentedly without the consent of the devolved legislatures.’
‘One further compelling reason to put this Bill aside, …., is its curious silence in its provisions on common frameworks, heralded as a way forward three years ago. In spite of difficulties, efforts to achieve common frameworks have enjoyed buy-in from all the devolved administrations.’
“If I were a Scottish MSP, I would vote to refuse legislative consent”
Lord Liddle (Lab): ‘Furthermore, if I were a Scottish MSP, I would vote to refuse legislative consent to this measure on the grounds that they override the devolution settlement. What we are looking at today is a profoundly dangerous Bill, and this House has constitutional responsibilities to reject the parts of the measure that contradict the manifesto on which the Government were elected and that breach international law. I hope the Lords will neuter it and then stand their ground. ‘
A total negation of devolution and blatantly disruptive
Lord Bruce of Bennachie (LD): ‘I deplore that a government Bill should contain Clause 45(2)(a), which trashes the UK’s reputation for upholding its treaties and honouring its obligations and seriously undermines our ability to negotiate effective agreements. I believe it reveals that the Government are under the stranglehold of anarchists and disrupters. Indeed, I have no doubt that it suits the dark forces in the Government that this part of the Bill has diverted attention from the other deeply damaging proposals that cut across the devolution settlements, to which I now turn.’
‘… the powers in the Bill would allow the UK Government to block or disrupt the working of devolution. This could affect building regulations, where, as has been pointed out, in Scotland we want higher insulation standards or we might want lower carbon specs. It could affect single-use plastics, where Wales and Scotland want tighter restrictions than England. The mutual recognition and non-discrimination rules could nullify such divergence, which is why the devolved Administrations argue that it could be an England-led race to the bottom.’
“Clauses 46 and 47 give the UK Government powers to initiate spending in devolved Administration areas without requiring the engagement or consent of the respective Governments. The motivation behind this seems blatantly disruptive. No doubt the people of Scotland, Wales and Northern Ireland may welcome extra cash from the Treasury over and above their own sources of revenue—city deals are an example of that—but for such a measure to be pursued without the participation or consent of the parliaments or Governments is the total negation of devolution.”
Powers to alter devolved competencies
Baroness Andrews (Lab): ‘This Bill, according to the chairs of both the Constitution Committee and the European Union Committee, threatens to frustrate and disrupt progress made so far and undermine future co-operation, because it does indeed—despite what the Minister has said—provide the Government with powers to alter the competences of the devolved Administrations.’
“Forget chlorinated chicken; Wales could not even require different labelling to show the higher levels of fats in a food product. If England were to allow hormones in beef cattle, Scotland could not prevent the import and sale of such cattle.”
An aside – a notable omission
Lord Campbell of Pittenweem (LD): makes no defence of devolution in his speech
Overriding a broad range of devolved powers
Lord Haskel (Lab): ‘Clause 3 …. means that the lowest standard becomes acceptable. What is more, this requirement applies not only to the goods themselves but to their packaging, labelling, assessment, registration and documentation, .…’
‘There are further clauses in the Bill which override powers granted to the devolved Administrations regarding such things as consumer protection, financial aid and social welfare; indeed, powers are granted to UK Ministers to spend money over the heads of devolved Administrations, even on devolved matters.’
Westminster government by diktat and by provocation – “colonialism at its worst”
Baroness Humphreys (LD): ’It is clear that the UK Government’s response to dealing with devolved governance issues that arise will be to resort to government by diktat. For example, the principles of mutual recognition and non-discrimination are, according to this Bill, to be applied to all goods and most services, with a highly limited list of exceptions which can be changed by UK Ministers through secondary legislation without consultation with the devolved Administrations. In Wales, this is seen as a fundamental assault on devolution, preventing the Senedd carrying out its duty of protecting the citizens of Wales from substandard goods and services.”
‘The proposal that UK Ministers should take new funding powers to enable them to fund hospitals and schools in Wales without consultation with the Welsh Ministers who have the devolved responsibility for these areas is provocative, as is the threat to build the M4 relief road against the decision of the Welsh Government, a decision endorsed by the Senedd on cost and environmental grounds. This attempt to chip away at the powers of the Senedd is an example of Westminster colonialism at its worst..’
UK Ministers will have extensive delegated powers to alter devolved competence
Lord Dunlop (Con): ‘However, the regime created by the Bill is more restrictive, with fewer public policy exclusions, than the EU framework it replaces. Whereas common frameworks are subject to joint decision-making involving the UK Government and the devolved Administrations, the Bill confers on UK Ministers extensive delegated powers to alter devolved competence and in places to exercise them without even the modest requirement to consult the devolved Administrations.’
Public schoolyard bullying of the devolved nations – brushing common frameworks aside
Lord Hain (Lab): ‘Perhaps we should not be surprised that the Government adopt the posture of a public schoolyard bully when it comes to the devolved nations of these islands, where No. 10 seems to believe it holds all the cards and has nothing to lose—apart from perhaps destroying the United Kingdom.
For more than three years, the Governments of Wales, Scotland and Northern Ireland have sunk their very large political differences with the UK Government over Brexit in order to address its fallout in terms of managing the UK internal market. This led to the common frameworks programme, … This Bill brushes all those common frameworks arrogantly aside.’
Loutish and disrespectful behaviour by the Tory Government
Lord Howarth of Newport (Lab): ‘The Bill contains no mention of common frameworks. It takes powers to override devolved legislation by means of regulations passed at Westminster and to spend money in areas of devolved competence. It contains only patchy and vague provisions for future consultation on the exercise of the powers that it creates. It has provoked indignation in Wales, Scotland and Northern Ireland, and legislative consent is highly unlikely to be forthcoming. The Bill is disrespectful to the devolved Administrations.’
‘The Bill is an expression of a loutishness that characterises this Government’s political dealings. Where will this debasement of our democracy take us if we collude in it?’
Devolved powers over state aid eliminated
Baroness Bryan of Partick (Lab): ‘The noble Lord, Lord Callanan, as I understood him, said that industry subsidies had never been devolved, but Part 7 of the Bill amends Schedule 5 of the Scotland Act 1998 to eliminate state aid from the devolved powers that have rested with the Scottish Parliament for over 20 years. This happened without negotiation and with only the most cursory consultation.’
Limits ability to protect workers in Scotland
Lord Hendy (Lab): ‘The EU single market, from which this Bill takes inspiration, had much in the way of protection of affected workers; the Bill has nothing.
I accept that labour law—the law of the workplace—is not a devolved matter and therefore applies across the UK, with minor variations in Scotland and Northern Ireland, but that does not avoid the issue of social dumping. It is entirely foreseeable that measures are taken in Wales, Scotland and Northern Ireland to protect workers in those countries from being undercut in England or abroad.’
Neutering ability of Scottish Government to act on progressive policies – the Bill “changes the rules”
Baroness Finlay of Llandaff (CB): ‘If, for example, the Welsh Government wish to change food labelling to improve warnings on sugar or fat content, or want to ban sugary fizzy drinks, they could in theory still do so, but the law would be wholly ineffective because products legally made in, or imported into, England and which did not comply could be freely sold in Cardiff and Caernarfon. This would neuter the ability of the elected legislatures in Cardiff, Edinburgh and Belfast to act within their devolved competences.’
‘The Government, representing the overwhelming share of the UK economy, are reneging on their commitment to the agreed frameworks. They can do whatever they want and whatever they agree in a trade deal without consulting the devolved Administrations. The Bill stops the devolved Governments adopting more progressive policies. It suddenly changes the rules of the game from those agreed and seems to tear up the common frameworks approach that the devolved Administrations have supported.’
Threat to public health
Lord Faulkner of Worcester (Lab): ‘Public health is a devolved responsibility, and the individual nations of the UK have different populations and different priorities. Scotland, for example, pioneered minimum unit pricing for alcohol and England led the way on prohibiting tobacco displays in shops. However, the narrow drafting of this Bill substantially undermines the ability of all parts of the UK to innovate and improve public health policy. This is because of the very limited exceptions for public health. Furthermore, the current exclusions, including the list of legitimate aims that override non-discrimination, can be removed or weakened by statutory regulation. In my view, the Bill must be amended to allow the Governments of the four UK nations to protect the health of their populations. Protecting human health must be included as a legitimate aim for overriding all market access rules.’
The powers will take the soul, if not the territory, of the devolved nations
Baroness Bowles of Berkhamsted (LD) : ‘The powers in the Bill are a land grab, taking the soul, if not the territory, of the devolved nations as well as sidelining Parliament, allowing anything to be changed by regulation.’
Powers are being eroded without consent
Baroness Clark of Kilwinning (Lab): ‘The Government will no doubt say again when they sum up—as they did at the beginning of this debate—that further powers are being devolved as part of the changes taking place, and that some of the powers coming back from Europe will be devolved to the devolved institutions. I respectfully say that that is not really the point; the issue is that certain powers are being eroded without consent, and certain powers of the devolved institutions are being eroded when the direction of travel should be transferring powers to those institutions.’
The powers that the Government is taking are “breath-takingly wide”
Baroness D’Souza (CB): ‘The powers that the Government afford themselves are breath-takingly wide, including the non-recognition or enforcement of rights, powers, obligations, restrictions and remedies contained in the withdrawal Act. The Bill allows Ministers to interpret, modify or disapply any of the provisions set out in international and domestic law, defined as any provisions of the European Communities Act, any other EU or retained EU law and “any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal”.’
Centralising power away from the devolved Administrations
Lord Shipley (LD): ‘My Lords, the Bill will represent a further stage in the eventual break-up of the United Kingdom should it proceed unamended. It centralises power away from the devolved Administrations, gives excessive powers to Ministers, and undermines the rule of law.’
“The Scottish Government are right” – this Bill undermines devolved competencies
Lord Vaux of Harrowden (CB): ‘I do not often say this, but the Scottish Government are right: this Bill undermines their devolved competencies.’
‘… required for an internal market to work is a mechanism for dispute resolution. To be acceptable to all parties, any mechanism needs a high degree of independence, all parties should be represented, and it must have the ability to resolve disputes. The Bill creates the Office for the Internal Market, but that is neither independent nor representative. …. Does the Minister not see a contradiction in being ready to die in a ditch to prevent the European Court being the arbiter of a trade deal, but not allowing an independent arbiter in our own internal market?’
Override and bypass mechanisms will reduce devolved powers
Lord German (LD): ‘First, do we need the Bill now? I do not think we do, because there is no threat to the internal market at the moment. The common frameworks, which are close to agreement, could be used in their draft form, if they are not finally detailed and ready. Common frameworks do not even get a mention in the Bill, yet that work has been going on for two years.
Have the Government put in place appropriate dispute procedures? No, they have not. The Government’s engagement with the devolved Governments has not given an inch on their involvement. Will the Bill weaken devolution in our country? Yes, it will, because it produces override and bypass mechanisms that have the effect of reducing devolved powers. Will the Bill guarantee high regulatory standards? No, it will not, by creating a system that places you at a competitive disadvantage if you follow high standards.’
Pulling back powers to Westminster
Lord Fox (LD): The Bill pulls back power to Westminster at the expense of the devolution settlement. … the glaring absence of any reference to the common framework in the Bill.’
Explicitly amending the devolution settlement
Lord Stevenson of Balmacara (Lab): ‘The UK Government have collaborated on a common frameworks programme for three years; many are close to final agreement, with the remainder being progressed at pace. Given how close we are to agreement, why does this Bill ignore rather than build on that programme? We intend to strongly challenge this approach. The Bill threatens to frustrate the progress made so far and to undermine future trust and co-operation because, to quote the chairs of the Constitution Committee and the EU Committee:
“The Bill provides the Government with powers to alter the competences of the devolved administrations and risks destabilising existing devolution arrangements”.’
‘The Bill also seeks explicitly to amend the devolution settlement to add the design and operation of a “subsidy regime”—it used to be known as state aid—to the list of reserved matters.’
Westminster government will have effectively uncontrolled power
Lord Judge (CB): “The debate has reinforced my anxiety about the Bill. If it is enacted, we shall be giving the Executive the most extraordinarily wide powers, and until the debate I had not fully appreciated the dangers to the union of giving the Executive in London effectively uncontrolled power over the way in which the internal market will work.”
Could any of these claims be true; is any of this important; is being informed about this in the interest of the public, in the interest of the voters, in Scotland? Judged by media coverage in Scotland – and most damningly – judged by the coverage provided by the public service broadcaster, the BBC, one must conclude ‘not really’!
And recall the Scottish Tory Andrew Bowie MP: “this Internal Market Bill, is just the start. The UK Government is back in Scotland. Get used to it.”