United Kingdom Internal Market Bill — House of Lords, 2020-11-18
Topic: Civil Rights
Anne McIntosh (Conservative, Centre-right): My Lords, it gives me great pleasure to speak to and move Amendment 6, which I hope is self-explanatory. It seeks to clarify the meaning of Clause 5(3), regarding the effect of the statutory requirement under Clause 6. It should have read, just for greater clarification, "A relevant requirement (see section 6) is of no effect in the destination part but only if, and to the extent that". That is a compromise we reached for greater understanding of the text The effect of Clause 5(3) will be to render a discriminatory statutory provision in UK or devolved legislation of no effect. I warmly thank the noble Lord, Lord Foulkes, for co-signing this amendment. In Committee, we had reservations about the meaning of "no effect", because it lacked clarity. That was the view put forward by the Law Society of Scotland, which has helped me to draft this amendment. My noble friend Lord Callanan confirmed in Committee that: "Clause 5(3) will operate so that any future requirements that fall within the scope of the non-discrimination principle will be of no effect to the extent that they are discriminatory. For the benefit of the lawyers, this does not mean that the requirement is to be treated as if it never had any legal effect. Rather, it allows the continued operation of the requirement, except to the extent that it has discriminatory effects." The amendment therefore seeks to emphasise that the lack of effect relates only to the discriminatory element of the statutory requirement and does not otherwise affect the validity of the requirement. I hope that my noble friend will take the opportunity to confirm that that is the case There is also concern about the application of Clause 5(3) to a statutory provision in an Act of Parliament. My noble friend Lord Callanan confirmed that: "As the Bill deals with trade across the whole of the United Kingdom, the intention is that this will apply to all legislation: secondary legislation, primary legislation passed by devolved legislatures and legislation passed by the UK Parliament."—[Official Report, 28/10/20; col. 251.] Under Clause 49, legislation means, inter alia, primary legislation, which includes an Act of Parliament. Therefore, we know that this provision means that such an Act will be of no effect to the extent that it is discriminatory under the Bill. I am minded to repeat the words of the noble Lord, Lord Beith, who mentioned that secondary legislation can be open to interpretation by the courts. I would be most grateful if my noble friend could clarify and further benefit us with his understanding of this provision I also comment briefly on Amendment 24 in the name of the noble Baroness, Lady Ritchie of Downpatrick, and others, with which I have some sympathy, as it ensures continued compliance with the principle of non-regression in Article 2 of the Northern Ireland protocol. That is a worthy aim, and I admire the enthusiasm and energy with which the noble Baroness, Lady Ritchie, has pursued this in the interests of her nation. With those few remarks, I beg to move and wait to hear the response of my noble friend to this little debate.