Lord Hope of Craighead (CB)

My Lords, I am very grateful to the noble and learned lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Fox, for adding their names to this amendment, which is in my name. The amendment seeks to insert into Part 1 a new clause, which has two objectives. The first is to ensure that, before any regulations are made under this part, the devolved Administrations are consulted on the impact and effect of the marketing and use of products in the areas over which they have legislative competence. The second is to prevent agreements that have been made under the common framework system being nullified by any of these regulations. As far as the first objective is concerned, this Bill extends to England, Wales, Scotland and Northern Ireland. Product and consumer safety standards are reserved matters in relation to Wales, Scotland and Northern Ireland. That has been acknowledged by the Government, as noted in paragraph 10 of the Explanatory Notes. While the Bill makes provision as to what is to happen in each of the jurisdictions within the United Kingdom, it does not contain any provisions which 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. The problem which comes up time and again as Bills pass through this House is that the Sewel convention does not extend to delegated legislation, so it cannot be said that UK Ministers are required by convention to seek the consent of the devolved Administrations before exercising these powers. That is why the Constitution Committee, which always keeps a close eye on these matters, has recommended on numerous occasions that engagement with the devolved Administrations should be a formal requirement. As far as this Bill is concerned, there is at least a risk that, unless something is said about it in the Bill, product regulations made under Clause 1 will engage matters which are not reserved to the UK Ministers in ways that would impinge significantly on devolved competence, without the devolved Administrations being involved at all. That is why, in paragraph 34 of its report on the Bill, the Constitution Committee suggested that clarification is needed from the Government “as to the processes of consultation and consent it intends to apply” if the powers in the Bill are used “to make regulations in areas of devolved competence”. I suggest that my amendment offers a sensible solution to a point that is of very real concern to the devolved Administrations. It does not require their consent. There is no need to go that far, because “close and timely” consultation—to use the Constitution Committee’s own phrase—would be enough to sort out things in a way that satisfies both sides. Consultation, not consent, is what this proposed new clause would require. I am very grateful to the Minister and the Bill team for the way in which they engaged with me when we discussed this issue a few days ago. I hope very much that he will feel able to assure me that the Government will take this point seriously, and that they will bring forward an amendment that deals with it in their own words in due course. I look forward to his reply, but I would also welcome any guidance he can give as to the extent of the legislative process with both Wales and Scotland—that would be very helpful. The second objective relates to the common frameworks. They were created to ensure that a common approach was taken so that some measure of consistency was achieved across policy areas returned from the EU which intersect with devolved competence. Their engagement with devolved competence matters, because one of the features of the way these matters were handled within the EU was that it enabled a devolved Administration to diverge from other parts of the United Kingdom as to how matters that were within its devolved competence should be dealt with. The way the 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 disadvantage the other parts of the UK that the proposal can proceed to enactment. That system was already up and running when what became the United Kingdom Internal Market Act 2020 was introduced. The market access principles which that Act contains are 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 legislative framework in one part of the UK can be done everywhere else, irrespective of what the legislative framework elsewhere may provide. A provision which is now Section 10 of the Act was inserted into the Bill to enable the Secretary of State by regulations to exclude the application of those principles to enable effect to be given to 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 under this Bill may provide for. Without that protection, agreements of that kind run the risk of being rendered unenforceable. As with Section 10 of the internal market Act, I am proposing that whether or not to exercise the power should be at the discretion of the Secretary of State. It is a very light touch to what could be a very real problem. I appreciate that the system that this Bill seeks to introduce is not the same as that provided for by the internal market Act. It may also be said that the common frameworks are now so well established that they do not need this protection, but we must remember that this is a system that looks to the future as well as the present, as indeed this Bill does too. So we have to allow for what frameworks may do in the future in a way that we cannot foresee. I hope that the Government will feel able to provide the same protection here as was agreed to in the case of the internal market Act by the previous Government. I beg to move.