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Lords report criticises lack of consultation on Internal Market Bill

It’s fair to say that the UK Internal Market Bill has become one of the most controversial Bills to come to Parliament in recent years. It has been criticised by all five living former Prime Ministers, backbenchers from across the political spectrum, and drawn anger from the devolved administrations. Now, after passing through the House of Commons with minor and largely inconsequential amendments which have proved sufficient to assuage the concerns of backbenchers, it has arrived at the bar of the House of Lords, where it is expected to face a much greater challenge.

The preview of that challenge has now come in, with the publication this morning of the Lords’ Constitution Committee report on the Bill. For the Government, it won’t make pleasant reading. It is in fact, one of the most excoriating reports from a parliamentary committee that you might ever expect to see. The chief criticism of the Bill has of course been the provisions that would authorise the Government to break international law, which has been roundly condemned across the spectrum as a gross affront to the principle of the rule of law. Naturally, this features heavily in the report, but as part of a legislative broadside which leaves barely any part of the Bill untouched.

We have also, of course, raised our own concerns about the Bill. The consultation was only four weeks long, and the consideration period another four weeks. The response was deeply inadequate- indeed we’re currently trying to get more information via a Freedom of Information request on exactly what analysis and examination of responses (and where those responses came from) were actually done. No significant changes were made, and no real explanation given for how the Government responded to the consultation, if at all.

We are relieved to see that these concerns are also reflected in their Lordship’s report. In addition to the criticisms about the duration of the consultation/consideration periods, witnesses in the Committee highlighted the lack of consultation with the devolved administrations, who received copies of the Bill only a couple of days before it was published. Given the enormous impact that the content of the Bill is likely to have on the devolved administrations, this was highlighted as a particularly egregious flaw. In the view of the Committee, the consultation was on the whole inadequate, and the inadequacy entirely unjustifiable given the context in which the Bill was brought.

This was not, however, the only consultation related criticism mounted. As with most primary legislation the Bill creates a swathe of secondary legislative powers for ministers. These powers do not come with as strenuous consultation requirements as we might expect especially given not only the impact that the Bill will have on the devolved administrations, but the promises of ministers. The Report specifically highlighted the comments of Michael Gove, the UK’s Brexit supremo, when launching the Bill who described it as a ‘surge’ of powers to the devolved administrations. In light of the promises, the Committee found it rather surprising that there is a near-total absence of any involvement for the devolved administrations in the SI making process.

It is not unfair to say that the image that emerges from the report is one of a procedurally dubious, unconsidered Bill with the potential to result in significant constitutional damage and un-consulted upon executive overreach. The nature of the House of Lords means that those in it often fall less prey to the needs of pleasing their political masters. There is more of a willingness to challenge Government decisions and legislation, and a weaker whipping operation often means that what would breeze through the Commons on the back of a significant majority will find itself being dragged over the coals by Peers. This report is likely to form the backbone of that process, and it will be interesting to see if the Lords can bring about any substantive changes to relieve some of the problems. In light of the approach of the current Government to constitutional norms, it might be best not to get one’s hopes up.

In the meantime, we will continue to pursue the consultation issues – our FOI request is now a week overdue, and with our concerns about attitudes to the consultation being stirred by this and other problems, we’re not inclined to let it go. Naturally, when we get a response, we will let you know.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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