Trade Bill

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

Report (1st Day)

14:32

Relevant document: 15th Report from the Constitution Committee

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, I will call Members to speak in the order listed in the annexe to today’s list. Interventions during speeches, or “before the noble Lord sits down”, are not permitted and uncalled speakers will not be heard. Other than the mover of an amendment or the Minister, Members may speak only once in each group. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk. The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect the voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group.

Clause 2: Implementation of international trade agreements

Amendment 1

Moved by

[Lord Berkeley]

1: Clause 2, page 2, line 14, at end insert—
“(c) an international treaty or private law convention (including any amendment or protocol thereto) that facilitates trade or the financing thereof.”Member’s explanatory statement
This amendment, and the amendments in the name of Lord Berkeley to page 2, line 23 and page 2, line 33, will enable the ratification of international treaties which have the UK as a signatory and enable trade or the financing thereof.

[Lord Berkeley (Lab) [V]]

My Lords, in moving Amendment 1 I shall also speak to Amendments 4 and 5. The purpose of these amendments is to provide a legal basis for the Government to bring forward a statutory instrument to ratify the Luxembourg Rail Protocol. Noble Lords will probably remember that I spoke about and explained the purpose of this protocol in Committee. Very briefly, I remind the House that the Luxembourg Rail Protocol is a protocol to the Cape Town convention to reduce the risk for creditors, which in turn will reduce the cost of financing for new and current rolling stock.

An Oxera study published this week showed, I think, a saving to the rail sector of about £130 million per year. However, it is particularly important for the British rolling stock manufacturing community looking to develop new markets outside the UK, which I believe is one of the purposes of the Trade Bill. This rail protocol follows an older protocol on aircraft leasing and financing, which I think most people believe has been very successful in financing aircraft.

In Committee, the Minister replied that the Government support the ratification of the protocol. I am very grateful for the support of the noble Lord, Lord Grimstone, and the noble Viscount, Lord Younger, on this. Since they felt it was more appropriate to get the necessary legal basis through the private international law Bill, I agreed that I would not move my amendment. We had discussions with Ministers on the private international law Bill. I am once again grateful to Alex Chalk MP, the Justice Minister, and to the noble and learned Lord, Lord Stewart, for their help in drafting the new amendment to the PIL Bill when it came back to your Lordships’ House for ping-pong. I am grateful to the Ministers for their discussion.

During the debate the noble and learned Lord, Lord Stewart of Dirleton, agreed how important the rail protocol is to the industry but suggested that the application of the protocol was narrower than I might have thought, saying:

“The Government consider this to be an important issue and are thinking about how best to implement the protocol in the United Kingdom. As we discussed last week, we consider that the power in this Bill”—


that is, the PIL Bill—

“is too narrow to fully implement the protocol, although the provisions in applicable law would be within its scope.”—[Official Report, 19/11/20; col. 1574.]

That is very good but all it did was allow half the protocol to be implemented, which noble Lords will probably agree is not a good situation.

The Government appear to support the ratification of this protocol and to consider it important for the rail industry. However, I feel that I have been sent round the houses, from the Trade Bill to the PIL Bill, and now the Ministers have discovered that it will allow only half the protocol to be ratified. I was grateful for further discussions with the noble Lord, Lord Grimstone, by email recently, in which he suggested that

“the Trade Bill should not be expanded beyond essential readiness for trading as an independent country outside the EU.”

I would argue that this protocol would allow the rail sector to do just that. I think it would be very useful if it could be included.

The Minister again suggests that the Trade Bill is not an appropriate vehicle for matters relating to finance and transport, which should be considered elsewhere. If it were a matter of motor manufacture or printing-press manufacture, surely those would be trade issues as well. For motor manufacture, is the Department of Transport involved or is it a trade matter? That question must be resolved. Government lawyers from probably three different departments are dancing around a pinhead. This merry-go-round must stop because it is wasting a lot of government time, as well as Parliament’s.

I have been sent around the houses: transport, trade and justice, and now we are back in trade. I am very pleased to be back in trade this afternoon. Ministers say that they support the protocol to help achieve better trade in railway equipment, so in order to stop this merry-go-round, will the Minister urgently arrange a meeting with myself, the Department of Transport, the Department for International Trade and the Ministry of Justice if necessary? Will he then bring forward an amendment at Third Reading, which I assume and hope would be agreed across government, to enable the Luxembourg Rail Protocol to be ratified? Surely the Government can get their lawyers to agree.

If the Minister could commit to arranging such a meeting with me to resolve these issues and bringing forward an amendment at Third Reading, I would be very content. If not—and I hope it does not go that way—I am minded to seek the opinion of the House, if only to demonstrate the strength of internecine warfare in this Government on an issue that they all support but cannot work out how to deal with. I beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I rise primarily to support the noble Lord, Lord Berkeley, as I did in Committee, in his efforts to get the Luxembourg Rail Protocol to the Cape Town Convention implemented in the UK. As we have heard, some steps have been taken, thanks to the good offices of the Minister and of Alex Chalk in the other place, but sadly they have not quite done the trick. I refer to my business interests in the register, including the UK-ASEAN Business Council, and a new role as chair of Crown Agents, which curiously, I find, did a great deal of work on rail and rolling stock during its long history.

I see two advantages to the protocol that was signed by the UK as long ago as 26 February 2016—obviously a very different world then. First, it will reduce the risk to creditors, which in turn will reduce the cost of financing new and current rolling stock—everything from engines to equipment and parts, data and manuals. Whether these are for a new line that is being built or for existing lines, by lowering creditor risk the protocol will assist in lowering the cost of new, more efficient, locomotives and wagons for freight and passenger transport. As the noble Lord, Lord Berkeley, has just said, an Oxera study to be published this week suggests a saving to the rail sector of about £130 million a year. This is quite significant when rail funding is under pressure, and particularly desirable as part of a move to net zero as we seek to combat climate change.

Secondly, it would help British rolling stock manufacturers seeking to develop new markets outside of the UK. There is an urgent need, for example in Africa, for more railway equipment both for urban transport—light rail, metro and trams—and for intercity rolling stock. The markets are there for British exporters, but the Governments and their operating agencies do not have the resources. I am talking about countries such as Namibia, Egypt, Ethiopia, Kenya, Uganda, Zambia and South Africa. The lack of resources has been a major constraint, and in a number of cases, operators have bought Chinese rolling stock instead, even when it is less suitable, because it comes with Chinese state-backed financing.

14:45

The answer is to bring in private capital through leasing or secured financing structures where UK-based manufacturers will draw on the considerable expertise of the UK financial services community to finance their sales of railway rolling stock and equipment around the world. Without this protocol, many of these sales will not happen or financing will be so expensive because of the risk involved as to make such projects uneconomic. With the protocol, operating both in the UK and in the export states, I understand that the export credit agencies will be able to offer better financial terms for exporters. Under an agreement at the OECD, export credit agencies reduce their risk premiums by 10% when the Aircraft Protocol to the Cape Town Convention applies, so British adoption of the Luxembourg Rail Protocol should cost the taxpayer nothing.

I am supporting this measure because it could make a real practical difference to skilled UK businesses and financiers and improve the lives of many people on new or improved railways and trains as we leave the EU. A way must be found, one way or another, to ensure that the protocol is not further delayed, and that the merry-go-round the noble Lord, Lord Berkeley, referred to stops, so I look forward to hearing what the Minister has to say.

Finally, many of the proposed amendments do not offer a practical advantage for discernible UK interests, like the railway interests to which I refer, and I wonder whether this Bill is the place to include them all. This is a continuity Bill first introduced in 2017, and we need to get it on to the statute book.

[Baroness Kramer (LD) [V]]

My Lords, I join the noble Lord, Lord Berkeley, and the noble Baroness, Lady Neville-Rolfe, in utter frustration. The Luxembourg Rail Protocol was adopted at a diplomatic conference in 2007 and is due to come into force in 2021 because enough countries will have ratified it by then to create that effect. It creates a worldwide legal framework to support private-sector investment in railways and rolling stock, as the noble Baroness said, by establishing a new international registry for security interests, making it far more difficult for valuable rail equipment to be lost or stolen. These concerns have limited private investment in railway schemes across the globe, especially in the developing world.

Of course investment in rail matters, because it supports economic development and the battle against climate change. As others have suggested, the UK is a beneficiary both as a buyer of rolling stock—bringing down the price is therefore an advantage—and as a manufacturer, which will be able to market itself more effectively across the globe.

The UK is a signatory to the protocol, but it just cannot seem to get around to ratifying it. The noble Lord, Lord Berkeley, has introduced these amendments to try to achieve that ratification. I am very keen that ratification should happen, but I am concerned that the noble Lord is being forced by the Government to choose a route that adds even more unaccountable powers to the Government’s rapidly increasing range of widening and unchecked powers in this Bill and in others. I will be interested to hear the Minister address this issue because I hope that he will explain that I am wrong, that this could be construed as a narrow power simply to allow us to get the Luxembourg Rail Protocol done. I would like to be wrong, but I fear that I am not. We have already been through one shambles—the noble Lord, Lord Berkeley, did not use this phrase, but I will—with the Private International Law Bill, which was supposed to enable ratification of this protocol but turned out to be inadequate.

Let me address the narrow purpose of the Trade Bill. The Long Title of the Bill makes it perfectly legitimate to include language that would enable the Luxembourg Rail Protocol to be ratified. Everyone who has spoken on this subject so far has been a Minister at some point or other. Many of us have seen Bills with a slightly broader purpose dealing with an urgent gap in legislation, so it is not unusual and it does not undermine the character of the Trade Bill at large.

So I really would urge the Government to come back at Third Reading with a clause that allows them to ratify a protocol that they, the Opposition, the industry and those who seek to buy rolling stock across the world want to see ratified. This is an outstanding opportunity; I very much hope that the Government seize it.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, on the substance of this amendment, I have very little to add to the excellent speeches that we have already heard from my noble friend Lord Berkeley and the noble Baroness, Lady Neville-Rolfe, with additional support from the noble Baroness, Lady Kramer. As my noble friend Lord Berkeley said, we have watched his progress from Bill to Bill, from department to department and from Minister to Minister almost with affection as he wends his way around, receiving much the same answer from everybody: they all agree that this is a terrifically important thing to do, but, of course, supporting it is not their job or that of their Bill or department. I do not think that he should divide the House on this issue because it is not something that we can progress by amendment or Division but, at the very least, when the Minister comes to respond, he should commit to come back to my noble friend with a clear plan of what he needs do to get this protocol agreed. Clearly there is willingness and there are lawyers and opportunities; we just need a plan.

[Lord Grimstone of Boscobel (Con)]

My Lords, I turn to Amendments 1, 4 and 5, tabled by the noble Lord, Lord Berkeley. I acknowledge without reservation how much this topic means to him; no one could have worked more assiduously than he has on it.

The amendments before us would expand the scope of the Clause 2 power, creating a power to make regulations implementing private international law conventions as well as agreements that facilitate trade or trade financing. I thank the noble Lord, Lord Berkeley, for his engagement on this matter with DIT, the Department for Transport and the Ministry of Justice in relation to the private international law Bill.

In Committee, the noble Lord outlined that this amendment would allow the UK to implement the provisions of the Luxembourg Rail Protocol; for those who were not present, this protocol relates to the financing of railway rolling stock. Noble Lords will be pleased to know that the Government recognise the competitive advantages of ratifying the Luxembourg Rail Protocol. We have identified the benefits that this could bring to both the UK rail sector and UK financial services. Thus the Government support the ratification of this protocol; the challenge has always been finding an appropriate parliamentary time and a suitable vehicle to implement it, given the very significant pressures on parliamentary time—as your Lordships will be all too aware.

Turning to the appropriateness of this amendment, as we argued in Committee, we believe that the scope of the Trade Bill

“should not expand beyond essential readiness”—[Official Report, 29/9/20; col. GC 40.]

for trading as an independent country outside the European Union. I am afraid that the Trade Bill is not a suitable vehicle to provide powers for the implementation of this agreement. As previously explained, the powers granted by this Bill are limited but vital for the delivery of the UK’s independent trade policy.

In Committee, we argued that technical matters relating to finance and transport should be considered outside the Trade Bill in a way that is suitable to matters related explicitly to finance and transport. I was pleased to see Peers support amendments to the private international law Bill that will help to support the implementation of the Luxembourg Rail Protocol, but it is obviously disappointing that this is not a final solution. I assure your Lordships that the Department for Transport will continue to explore all available options and vehicles to implement the protocol fully.

As I have made clear, the Government fully support the implementation of the Luxembourg Rail Protocol. However, I repeat: we do not believe that this Bill is the appropriate place to achieve this. We will therefore oppose this amendment on this occasion, but I would be happy to work with colleagues across government and facilitate further conversations between the noble Lord, Lord Berkeley, and the Department for Transport to discuss our policy in this sector at greater length and see whether a plan can be put together.

Again, to be clear, we do not believe that this is the appropriate legislation for this amendment and we will not bring forward an amendment to the Trade Bill on this topic at Third Reading. I therefore ask the noble Lord to withdraw his amendment.

[Lord Berkeley (Lab) [V]]

My Lords, I am very grateful to all noble Lords who spoke and to the noble Baronesses, Lady Neville-Rolfe and Lady Kramer, and my noble friend Lord Stevenson for their support. I am grateful to the Minister for his response, courtesy and offer of further support.

We have not moved very far from where we were in Committee and the Minister did not really answer the question about why it is inappropriate for a Trade Bill that is designed to encourage trading when we become a completely independent country at the end of the year to include a text that allows a trade in railway equipment to be ratified. As I said in my earlier remarks, if this had been the motor or printing trades, I am sure that the Department for International Trade would have been only too keen to do it.

The Minister is pushing me in the direction of the Department for Transport. The most useful way of achieving this would be to have an early meeting with Ministers there and the noble Lord, Lord Grimstone—I hope that he would be happy to join us—to see what we can do. It would be good, and it is important, to have this done before the end of the year for the same reason that so much other legislation is needed. I am doubtful about whether the Department for Transport will have a slot in its parliamentary programme, but we will have to see.

As my noble friend Lord Stevenson said, there is no point in dividing the House on this because it will not help to achieve the objective that I think we all want; on that basis, I look forward to further meetings but, in the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

[The Deputy Speaker (Lord Haskel) (Lab)]

We now come to the group beginning with Amendment 2. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.

Amendment 2

Moved by

[Baroness McIntosh of Pickering]

2: Clause 2, page 2, line 18, at end insert “and where the new agreement is in wholly or substantially similar terms to that between the partner country and the EU.”
Member’s explanatory statement
This amendment would limit the application of delegated powers to the “roll-over” of existing agreements.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to speak on Report and, in particular, to speak to and move Amendment 2 and speak to Amendment 3. I would like to think that the amendments are fairly self-explanatory but, effectively, they both seek to

“limit the application of delegated powers to the ‘roll-over’ of existing agreements”—

exactly as is set out in and is the intention of the Explanatory Notes. The reason for this is that the clause, as currently drafted, grants powers to implement agreements between the UK and our EU partner countries.

The Law Society of Scotland—to which I am grateful for briefing me and helping me to draft this amendment—has brought to my attention and alerted me about its concerns about the delegation of powers to implement a free trade or international agreement that relates mainly to trade. It believes, in relation to reassurances that have been given that these powers could be used only for continuity measures, that the Bill itself does not limit the use of these regulation-making powers to implementing continuity Bills.

15:00

Paragraph 5 of the Explanatory Notes states:

“The Government seeks continuity in the effects of these existing trade and investment relationships as far as possible. The Government has been discussing with the UK’s existing partner countries how best to achieve that aim and has been working to transition these agreements to make them apply to the UK after the end of the transition period. This is the Government’s continuity negotiations program, which is distinct from its future trade agreements program.”

The definition of a free trade agreement, or an international agreement that relates mainly to trade, could mean entirely new agreements. The limitations in Clause 2(3) and (4) should be clarified to ensure that they apply to the continuity negotiations programme and not future trade agreements.

If the Government’s intention is that the agreement should be restricted to continuity agreements, using regulations to implement them has more justification. If it were possible that future trade agreements could be negotiated with countries which are existing signatories under current arrangements, it should be clear that those agreements are not covered by the Bill and would be implemented by primary legislation which, of course, provides Parliament with more scrutiny.

I hope that Amendments 2 and 3 clearly limit the scope of the Bill to cover the intended circumstances. This is not entirely new. It was put to the House in the 15th report from the Constitution Committee on the Bill in September 2020 and I do not think that the position has changed since then. The Government’s response to an earlier report, quoted in paragraph 5 of the September report, was that,

“‘the delegated power within clause 2 of the Trade Bill is drafted in a way so that the presumption is that the power cannot be used to do certain things—such as impose taxes, create new criminal offences or establish new public bodies—unless there is an express provision allowing it to do so.’”

In the Committee’s view,

“The present version of the Bill and explanatory notes are unchanged in respect of the clause 2 power.”

I have not seen a change. The Committee concluded, in paragraph 7, that:

“We are not persuaded by the Government’s position that it is sufficient for the power in clause 2 to be constrained presumptively rather than explicitly. We recommend that the restrictions on the power be included in the text of the Bill.”

I entirely agree with the conclusions of the Constitution Committee. The purpose of these two amendments is to ask the Minister to explain, in his summing up, what the Government’s thinking is about why this is purely presumptive and what prevents them from putting this clearly on the face of the Bill. It may be appropriate to press this to a vote today. I would prefer that the Government agree with me, and the Constitution Committee of the House, and bring forward their own amendment at Third Reading. I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure, as always, to follow the noble Baroness. I have a great deal of sympathy with the intention behind these amendments, which also relate to the fact that, from January onwards, the Bill will have to operate for agreements it was never intended to implement. The House does not need reminding that it was the Government’s categorical position in the past that there was no doubt that all continuity agreements would be signed by March 2019, then summer 2019, then the end of 2019—it goes on. The reality is that there are currently 13 countries outside the EU with which we will be trading on terms less favourable than we did before, because those agreements have not been rolled over. The status of those agreements, with regard to this Bill, is now in a degree of limbo. For example, we know that our agreement with Canada is a temporary continuity agreement because we expect the negotiations to roll on regarding an almost immediate successor agreement. It is justifiable for the Government to clarify what status that has with regard to these powers.

Some of the agreements that we did reach have run out of time for full ratification, so they will have to be provisionally applied. That means that the Bill will be used for implementing agreements as well as adjusting ones that are made and ratified, ones that have been made but not yet ratified, and ones to be made and to be ratified. This is a very broad scope for these delegated regulatory powers. In Committee, the Government said that these delegated powers had a purpose. The Minister was quite clear that they are simply for technical adjustments to things, such as the names of quangos or certain terminology, that you would not wish to reopen a treaty for. That has a degree of sense; they should be limited. However, we are in a different position now, even from where we were at the beginning of Committee, with the full knowledge that there will be very many agreements that have not been successfully rolled over and will have to be implemented, some of which will be initiating new agreements at the same time.

I am, therefore, glad that the noble Baroness has again asked the Government to be clear what the intended purpose of these powers is. We want to avoid them being used to implement agreements. We also want to completely avoid them being used for implementing part of a border operating model that we know the Government are not ready for. We want the reassurance that any implementation of a response to questions for our export procedures which are still outstanding will not be used under the Bill. It would reassure the House if the Minister gave the assurance that the intended purpose of these delegated powers remains technical and limited.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am grateful to the noble Baroness, Lady McIntosh of Pickering, for raising this issue and, through her, to the Law Society of Scotland for reminding noble Lords of some of the detailed points which we often ignore when we put down amendments, particularly at this stage of a Bill’s progress. As the noble Baroness said, and as was picked up by the noble Lord, Lord Purvis of Tweed, some rather unforeseen issues are now arising, particularly in relation to the rollover agreements which were originally intended to be done and completed by 31 December but which, for a variety of reasons, are not going to be. Some of them are being done under emergency power provisions; some will not be done at all. We need to have on the record from the Minister where exactly these will fit in the structure of this Bill. I look forward to his response.

[Viscount Younger of Leckie (Con)]

My Lords, I turn to Amendments 2 and 3, tabled by my noble friend Lady McIntosh of Pickering, which seek to restrict the Clause 2 power so that it can only be used to implement agreements which are “wholly or substantially similar” to previous EU agreements. I can assure noble Lords that all the continuity agreements that we have signed to date have stayed true to our mandate of replicating the predecessor EU agreements, and that will not change for those that we are yet to conclude.

As noble Lords know, we have voluntarily published parliamentary reports for your Lordships’ reference alongside every continuity agreement, which outline any differences required to make the agreements operable in a UK context. As those reports show, none of our continuity agreements have diverged significantly from previous EU agreements. None of the debates in which these agreements have been discussed has resulted in a negative resolution. During the passage of this Bill, we have heard suggestions that the Government are delivering agreements which go above and beyond continuity, and that a more extensive scrutiny process is therefore required for them. The evidence is clear that this is not the case. We are seeking only technical changes to make agreements function in a UK-specific context, meaning that the current scrutiny measures are fit for purpose. I know that noble Lords will point to the recent UK-Japan CEPA. It is correct that that agreement goes further than the EU-Japan EPA in areas including digital trade. However, as your Lordships are aware, as the Government knew that this agreement would go beyond continuity, we provided enhanced parliamentary scrutiny of it.

Setting the UK-Japan CEPA to one side, your Lordships will appreciate that technical changes are required in some areas to allow agreements to work in a UK bilateral context. In these circumstances, the Clause 2 power could be used to make technical changes to UK domestic law to ensure the obligations under the agreement are met. The power in Clause 2 is therefore essential to allow us to implement in domestic law the obligations that arise from continuity agreements. The substantially similar wording is unfortunately ambiguous and could lead to uncertainty as to whether a trade agreement could be implemented via the Clause 2 power. The effect of this could be a possible disruption to concluding and implementing continuity trade agreements, potentially resulting in a gap in preferential trading relationships after the end of the transition period.

To paraphrase what the noble Lord, Lord Purvis, and my noble friend Lady McIntosh, said, they asked: “Why not put this on the face of the Bill, and if the power is not needed to transition trade continuity agreements, why do we need it at all?” As stated in the impact assessment and Explanatory Notes, the Trade Bill is not needed to transition trade continuity agreements themselves. However, the power will provide the implementing powers necessary to fully implement trade continuity agreements over time and in all circumstances. The Clause 2 power is intended to be used only to ensure that a limited number of obligations in these trade continuity agreements, particularly in relation to procurement and mutual recognition, are fully implemented in domestic law via secondary legislation.

I hope that with those explanations, my noble friend Lady McIntosh is reassured that our use of this power will be limited to continuity agreements that faithfully replicate predecessor EU agreements. As a result, I ask my noble friend to withdraw her amendment.

[Baroness McIntosh of Pickering (Con) [V]]

I am most grateful to my noble friend Lord Younger of Leckie. With the reassurance he has given me that any agreement will be a continuity agreement and will “faithfully replicate” its predecessor, and with the further reassurance—which I would like to write into the record if I have understood it correctly—that if any future continuity agreement, such as the Japan CEPA agreement, will go further, there will be “enhanced parliamentary scrutiny”, I beg leave to withdraw my amendment.

Amendment withdrawn.

Amendment 3 not moved.

Amendments 4 and 5 not moved.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

We now come to the group beginning with Amendment 6. I remind noble Lords that Members other than the mover and the Minister may only speak once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment or anything else in this group to a Division should make that clear in the debate.

Amendment 6

Moved by

[Lord Purvis of Tweed]

6: After Clause 2, insert the following new Clause—
“Parliamentary approval of trade agreements
(1) Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement.(2) If a decision has been made by the Secretary of State to commence negotiations towards a free trade agreement, a statement must be made to both Houses of Parliament.(3) Negotiations for that trade agreement may not proceed until the Secretary of State has laid draft negotiating objectives in respect of that agreement before Parliament, and a motion endorsing draft negotiating objectives has been approved by a resolution of each House of Parliament.(4) Prior to the draft negotiating objectives being laid, the Secretary of State must—(a) consult each devolved authority on the content of the draft negotiating objectives, and(b) produce a sustainability impact assessment including, but not limited to, an assessment of the impact of the proposed negotiating objectives on human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(5) A sustainability impact assessment under subsection (4)(b) must include—(a) a statement on how the proposed trade agreement will advance the meeting of the Sustainable Development Goals; and(b) a plan to maintain UK levels of statutory protection on the protection of human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(6) The Secretary of State must inform both Houses of Parliament, and any Select Committee charged by the relevant House with scrutinising trade negotiations in a manner and to an extent agreed with the Committee, of developments in the negotiations, but this does not affect the power of the Secretary of State to conduct negotiations as the Secretary of State considers appropriate.(7) For the purposes of subsection (6), “developments” means—(a) a pause in negotiations;(b) an ending of negotiations;(c) the conclusion of a negotiated round of discussions;(d) the decision to agree in principle an agreement; or(e) other necessary aspects of the negotiations of which the Secretary of State considers it necessary to inform Parliament.(8) The United Kingdom may not become a signatory to a free trade agreement to which this section applies unless a draft of the agreement in the terms in which it is to be presented for signature by parties to the agreement has been laid before, and approved by, a resolution of each House of Parliament.(9) Before a Minister of the Crown moves a resolution to approve the text of a proposed free trade agreement in either House of Parliament, the Secretary of State must— (a) consult each devolved authority on the text of the proposed agreement, and(b) lay before Parliament an independent impact assessment of the agreement including, but not limited to, the requirements in subsection (4).(10) In this section—“devolved authority” has the meaning given in section 4(1) of this Act;“free trade agreement” means any agreement which is—(a) within the definition given in section 4(1) of this Act, and(b) an agreement between the United Kingdom and one or more partners that includes components that facilitate the trade of goods, services or intellectual property;“UK levels of statutory protection” means levels of protection provided for by or under any—(a) primary legislation,(b) subordinate legislation, or(c) retained direct EU legislation,which has effect in the United Kingdom, or the relevant part of the United Kingdom, on the date on which the sustainability impact assessment is produced.”

[Lord Purvis of Tweed (LD)]

I rise to move Amendment 6, and I look forward to hearing the noble Lord, Lord Lansley, on Amendment 12, because these amendments concern an issue that has been a focus of Committee and a major part of today’s debate on Report. I listened carefully to the Minister’s response to the debates we had in Committee on scrutiny of agreements. There seemed to be some areas of agreement across the House, and I hope I am accurate in outlining what I consider them to be: it is the Government’s prerogative to make a decision to open, conduct and conclude negotiations; the Government believe the scrutiny powers of the European Parliament and the role of British MPs in agreements made by the European Union were effective; Parliament needed a greater role here at home; the Constitutional Reform and Governance Act process is insufficient in itself to allow for proper scrutiny and accountability. This last point has been agreed by everybody, including the Government, who have been at pains to say that they acted “above and beyond” the requirements of CRaG on the Japan EPA—in fact, the noble Viscount referred to that in an earlier group. It is fair to suggest that any Government who go above and beyond the legislative requirements they have to have regard to might point to those requirements being insufficient.

Outside groups as varied as the National Farmers’ Union and the BMA have been in touch with noble Lords asking them to support Amendment 6, and I am grateful for their support. It shows the breadth of interest in updating and improving parliamentary accountability for agreements that go far beyond tariffs and quotas, as we have stated repeatedly during the passage of the Bill.

15:15

My amendment—I am grateful for the support of the noble Lords, Lord Stevenson of Balmacara and Lord Curry of Kirkharle, and the right reverend Prelate the Bishop of St Albans, who all take a close interest in these issues—has been adjusted since Committee to take into consideration the remarks of the Minister and colleagues from across the House. The amendment does not restrict the Government’s use of the royal prerogative to commence, conduct and conclude trade agreements. The Government have indicated that this is a red line for them, and that would be fully acknowledged, in statute, in this amendment.

In proposed new subsection (2), a statutory underpinning would be created to the commitment the Government have themselves said they will carry out for future trade agreements, which is that they will inform both Houses of Parliament that they are commencing negotiations. That would now be a requirement.

Proposed new subsection (3) would put the United Kingdom on a par with the US and the EU, which provide for the endorsement of negotiating objectives. There is little doubt now that the European negotiations and the Office of the US Trade Representative believe this mechanism strengthens their hands in conducting negotiations rather than weakens them. I referred to the US legislation from Congress that provides, in statute, a framework for how the US TRO conducts negotiations.

Proposed new subsections (4) and (5) outline in simple terms that the Government must consult devolved authorities and be clear in the negotiating objectives about any impact on, for example, animal welfare, environmental protection, human rights and equalities and employment and labour, how they advance sustainable development goals and how they maintain UK levels of statutory protection on standards.

Proposed new subsections (6) and (7) reflect that there has been some progress from the Government, in that they have moved to develop further relationships with the respective committees in the Commons and here in this House. Discussions of a proposed protocol on those relationships are ongoing, and I welcome them. On the Written Ministerial Statement the Minister sent in advance of this debate, which I am grateful for seeing and on which I have reflected, I say to the Minister that it is not a substitute for other provisions, even though it is welcome that the Government have moved. I studied carefully the WMS, as I told the Minister I would. It repeats what the Minister said in Committee and outlines a little more about where the Government will provide information in a public domain. It also states a little more about the relationships with the committees. The subsections in this amendment would put such commitments on a statutory footing in addition to requiring the Government to inform the committees of developments in negotiations. This is not a considerable move from what the Government have indicated their intention is going forward. Proposed new subsection (6) makes clear that nothing in this will

“affect the power of the Secretary of State to conduct negotiations as the Secretary of State considers appropriate”.

Finally, proposed new subsection (9) requires an independent impact assessment of the agreement and consultation with each devolved authority on the text of the proposed agreement.

My final remarks will be on the update of the existing veto powers, as they have been termed, in the Constitutional Reform and Governance Act. I say “update” because in Committee, it was broadly accepted that the House of Commons currently has some form of veto power in the 2010 Act, which itself updated the parliamentary convention and the Ponsonby rule. The noble Baroness, Lady Noakes, referenced this clearly. I referenced how Jack Straw, in introducing the legislation, stated to the House of Commons that the veto power would be put on a statutory footing. Whether or not we wish to look at the semantics of what a veto is, the same power for a two-clause treaty with little consequence and a trade treaty of 25,000 pages with significant consequences, notably for domestic policy, clearly draws to attention the fact that we should consider whether that same power is relevant for both types of treaties. We now know, by definition, that we now have deep and comprehensive trade agreements that go far beyond tariffs and quotas.

The Minister would accept that during the existence of the European Union, major reforms have been taken of the scrutiny powers of the European Parliament to update its powers. I am seeking an update of our powers.

In response to a previous Written Parliamentary Question, the Government published a glossy diagram showing how we compare with other comparable countries in a statement of parliamentary transparency and scrutiny offering some international comparison snapshots. That covered the UK, Canada, New Zealand, Australia and Japan—so the UK, three Commonwealth countries and Japan. The Minister said that we should not look to the European Union as a basis for comparison, because that is a multi-nation entity, and we have a uniquely British approach.

However, in today’s Written Ministerial Statement, the Minister indicates that we should base it on a Westminster-style system—effectively a Commonwealth style. Can the Minister say why the Department for International Trade, in citing three Commonwealth countries, have chosen three predominantly white, northern hemisphere countries? Why not include, for example, South Africa? Our trade with South Africa is double that of our trade with New Zealand, and it affords its Parliament a full vote on the deal. Why not use South Africa as an example, rather than Australia and New Zealand?

With regards to Japan, the Written Ministerial Statement was very interesting, because I can only suggest that it was an omission that the Government did not mention that Japan has a final parliamentary vote on the deal. In fact, as required by law, on 24 November the House of Representatives in Japan voted to give its agreement to the Japan-UK EPA. There is no reference to that in anything that the Government have published, so the Government pick and choose their examples.

The House is now being asked to consider an updating of the CRaG power. The CRaG power provides, in effect, a degree of limbo: the House of Commons can place a trade agreement into a period of limbo, if it is not fit for purpose, but the Government can then ratify it anyway. The fact that Parliament cannot conclude that the agreement is not right and should be renegotiated or reopened—or that certain aspects should be done again—but only put it into a limbo that the Government can override is not sufficient for the 21st century.

I hope that there will be continuing cross-party consensus, and that the Government will consider that I have moved, in the drafting of this amendment, to recognise the Government’s stated position on the use of prerogative powers. What we are seeking is a degree of consensus that by updating and making clearer the power of Parliament over these agreements at the beginning of the process, during the codifying and at the end of it, we will have a trade policy that is fit for purpose for the 21st century.

During this process, I have got to know the Minister as an honourable man, but I suspect that he may not have a damascene conversion at the Dispatch Box over this matter. I give notice that, if that does not happen, I intend to seek the opinion of the House. I beg to move.

[Lord Lansley (Con)]

My Lords, I am glad to follow the noble Lord, Lord Purvis of Tweed, who set out the arguments for Amendment 6 with his customary clarity and precision, for which the House will be most grateful. In large measure, I agree that we have managed to secure quite a degree of consensus on many of these issues, and it is useful now, on Report, to see to what extent we want to put statutory backing behind that consensus. We have come to the right place at the right time.

I will in due course refer to Amendment 12, which is in my name, but I shall start with Amendment 6. Both amendments are concerned with the processes by which international trade agreements are scrutinised and approved by Parliament. I emphasise to those worried about the wider aspects of treaty making that this is about international trade agreements; we are not seeking to go beyond the scope of this Bill and impact on the Government’s treaty-making powers in general.

Amendments 6 and 12 seek to achieve different purposes. Amendment 6 would require prior approval, by each House of Parliament, of the draft negotiating objectives before the Government could proceed with negotiations. It also places a number of statutory obligations on the Government to report developments to Parliament, and it would require Parliament to approve a draft agreement before it is signed. I emphasise signed—not, in this case, ratified. In each of those three respects, Amendment 6 marks a significant change in the extent to which Parliament is not only engaged in, but to some extent potentially able to control, the process of making a free trade agreement. I say to the noble Lord, Lord Purvis of Tweed, that despite the assertion in the first subsection of his amendment that it would not restrict the prerogative power, it would in reality do so—by placing statutory limitations on the exercise of the prerogative power to proceed with negotiations.

Secondly, I share the view of the Constitution Committee of this House, which said in April 2019:

“We do not believe that Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations.”


In that regard, I cannot support Amendment 6, because subsection (3) makes it very clear that parliamentary approval for such negotiating objectives is required.

However, I agree with the noble Lord, Lord Purvis of Tweed, that there is a degree of consensus, and I subscribe to much of what is implied in Amendment 6: that the Government should seek the views of Parliament, as well as conduct a public and stakeholder consultation, when setting negotiating objectives. Parliament should be directly involved in that process, and the Government should provide updates to Parliament when significant developments occur during negotiations. Speaking as a member of the EU International Agreements Sub-Committee, I should say that our experience over recent months has been that the Minister and colleagues in his department have engaged with us substantively and constructively in the way that we would wish.

Secondly, the text of the Written Ministerial Statement, which the Minister was kind enough to send me last night, gives some reassurance as to the way in which Ministers intend to engage in future. It does not extend the nature of that engagement or change its statutory force, but to some extent it helps to answer the question that we asked repeatedly, at Second Reading and in Committee, about the extent to which the Government reiterate what was in the Command Paper back in February 2019. I hope, therefore, that my noble friend the Minister, in not only laying the WMS but responding to this debate, will continue to reiterate the Government’s full intentions in those respects.

That brings me to Amendment 12, which is in my name. This does not seek to restrict the Government’s right to initiate and conduct international trade agreements. It is focused only on the procedures by which Parliament is able, under the Constitutional Reform and Governance Act—CRaG—to approve an agreement before ratification. Amendment 12 would strengthen the CRaG processes in relation to international trade agreements in three respects.

First, it would require Ministers to publish, with their agreement or before it, an analysis of how an agreement would need to be implemented into domestic legislation. As we have learnt repeatedly during debates on this Bill, Parliament’s principal constraint over the Government’s treaty-making power occurs when it requires changes to domestic legislation. Parliament has control over that. For example, there is no merit in a Government agreeing a treaty offering access to the UK market for a product that it would be unlawful to sell in this country, when they know that Parliament would not agree to change the law. We need to know if an agreement would require changes to domestic legislation, and that should be a key issue in deciding whether Parliament will approve ratification. Ministers should not ratify an agreement that Parliament would not implement.

15:30

That brings me to my second point. Amendment 12 would require that ratification of an international trade agreement should not take place before the identified changes to domestic legislation had been enacted, should they require primary legislation, or laid if in the form of regulations. I understand that this is now a convention, although not a formal one, but it should be a statutory requirement.

The third element is also about giving statutory force to a convention: Ministers would extend the 21-day period until any debate sought by a committee in either House had taken place. Ministers say, as they did in Committee, that they would endeavour to ensure that parliamentary time is found. However, if it is not, Ministers should have to extend the time under Section 21 of CRaG.

As I mentioned, this does not apply to all treaties but only to international trade agreements. It is also important to remember that it is not open to Ministers to say, “But this constrains us, because we may have to proceed for reasons of public policy and timing”; there will remain a power for Ministers to ratify a treaty as an exceptional case under Section 22 of CRaG, which enables Ministers—with a Statement to Parliament—to disapply Section 20. The ratification process can be dispensed with by Ministers in exceptional circumstances.

I ask my noble friend to accept Amendment 12, which gives statutory backing to what we regard as best practice. I suspect he may say that Ministers do not disagree that they would behave in this way and therefore we do not need the law to change for it to happen, but I am afraid it is a simple truth that conventions persist until they are dispensed with by a Government. It is clear that CRaG has a proper statutory mechanism for Ministers not to use its process for approval before ratification, but they should do so and use CRaG’s statutory proceeding for this purpose.

I do not regard Amendments 6 and 12 as mutually exclusive. I agree with a lot in Amendment 6, and I hope that those who support it will go on to support Amendment 12 so that the parliamentary approval process under CRaG is strengthened, as well as the processes by which Parliament is engaged in negotiating objectives during the course of negotiations.

I therefore give notice that, when Amendment 12 is reached, I wish to move it formally and, if necessary, test the opinion of the House.

[The Lord Bishop of St Albans [V]]

My Lords, I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, and the revision he has made as he has engaged with the Government. I am grateful for his very clear exposition and will be concise in my support.

Modern trade agreements affect huge swathes of public policy, including consumer and workers’ rights, environmental legislation, food standards, health, public services and international development. MPs, who represent constituencies and work with a variety of stakeholders, deserve the right to assess the consequences of an agreement, as does your Lordships’ House. It has been argued that Brexit is about the UK taking back power, but I fear the Government have perhaps not moved past the 2016 divide and view Parliament as a body waiting for a chance to take us back into the single market and intending to scupper any agreement. That is not the case. Colleagues only want the best for their constituencies and our nation. Any suggestion that the Government may be ruling through fiat will inevitably produce poorer outcomes.

What this amendment proposes is far from radical. As has already been alluded to, we are currently outliers on parliamentary scrutiny of trade deals. The UK lags behind on transparency and accountability compared to the US, the EU and Japan, among others. These are fair and reasonable measures that will protect the interests of local industries across the UK; this amendment will allow us to strike deals that benefit the entire economy. I hope that noble Lords will support Amendment 6.

[Lord Curry of Kirkharle (CB) [V]]

My Lords, it is a privilege to add my name to Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, which he presented so articulately. This is a critically important Bill and I am concerned that, as with other Bills associated with leaving the European Union, we do not have much time. This new chapter in our history gives us a unique opportunity to make sure that we adopt best practice and put in place appropriate conditions and processes that reposition the UK as a global leading influence. I said during the debate on the Agriculture Bill that we should be ambitious and set the bar at a level that demonstrates our commitment to deliver on issues of deep concern. We will debate some of these later today.

The Trade Bill is an opportunity to make a statement about our intentions and ambitions as a nation. This principle also applies to the scrutiny process we put in place as a democracy to match the best of them, whether that of our former partners in the EU, the US or, as has been mentioned, Japan. We need to ensure that we have a transparent and robust process and that Parliament has the opportunity to be consulted and to debate the purpose, intention and outcome of trade deals. Government should see this amendment not as an attempt to slow down or thwart the negotiating process but as a helpful and positive contribution to give Ministers confidence in their negotiations. If this amendment is accepted, they will have the reassurance of having the backing and support of both Houses of Parliament. I hope that the Minister will accept this amendment.

[Lord Wigley (PC) [V]]

My Lords, I am delighted to support Amendment 6 in the name of the noble Lord, Lord Purvis, and to follow the comments of the noble Lord, Lord Curry of Kirkharle, with whom I largely agree on this matter and on many similar matters we have debated in recent weeks.

The House is indebted to the noble Lord, Lord Purvis, for finding a way around the difficulties which were raised against amendments in these areas in Committee and for overcoming the hurdle imposed by the prerogative considerations relating to trade deals. I cannot agree with the reservations of the noble Lord, Lord Lansley, on this dimension. His Amendment 12 could have an application for devolved Parliaments, for reasons I will qualify, but I recognise the general reasons he has put forward and will support him if he presses his amendment to a vote in due course.

As noble Lords might well anticipate, I speak from the viewpoint of the devolved Governments and Parliaments. In the context of Wales, in Committee we addressed several of the issues which might arise in the negotiation of free trade agreements. In Amendment 6, particularly subsection (9) of its proposed new clause, the obvious issue is whether the implications of free trade agreements could have an adverse impact on the economies of Wales, Scotland or Northern Ireland. The need for these devolved Governments to be drawn in at an early stage is twofold.

First, it is to enable them to alert the UK Government to any negative impact they might not have fully taken on board, not least negative effects on, say, farming, environmental dimensions or food safety considerations, which conflict with the devolved Governments’ policies on such devolved matters. Secondly, the beneficial provision of the proposed new clause in this amendment is to enable the devolved authorities to flag any special dimension that might help the devolved nations capitalise on new opportunities arising from trade negotiations, which would be beneficial for them and, possibly, the people of England.

I realise that trade treaties lie outside the ability of Parliament to amend as they progress, and that the devolved Governments will also have to work within parallel constraints. It is for another occasion for us to debate that principle, and I suggest that there are two sides to that argument. There can, however, be no doubt that the devolved Parliaments should have just as strong a voice on the impact of trade deals on matters within their competence as Westminster does on issues that impact policies that affect England only.

I would go further than this amendment provides, as we have in other legislation before Parliament, by requiring that, if the devolved Governments are not agreeable to the steps taken by the UK Government, there should be a requirement for ministerial explanation and a cooling-off period. That, however, is not before us today.

I have one last point. If Westminster is implacably opposed to the devolved Governments having their say in these matters, it will certainly only hasten the day when these Parliaments seek the powers to make international treaties for themselves to protect the interests of their people. Is that what noble Lords really want? I urge all sides to support this reasonable amendment and for the Government to accept it.

[Lord Goldsmith (Lab) [V]]

My Lords, I am happy to follow the noble Lord, Lord Wigley, and his underlining of the importance to be attached to the views of the devolved Administrations when dealing with trade agreements. I will speak to Amendments 6 and 12, on parliamentary scrutiny, with the experience I have gained as chair of your Lordships’ EU International Agreements Sub-Committee, but not on its behalf, save to the extent that I draw on reports already made by the committee. In any event, members of the committee are free to give their own views, and I note that some, including the noble Lord, Lord Lansley, are speaking in this debate.

There are two points I want to deal with. The first is to comment on the commitments made today by the Minister in the Written Ministerial Statement, to which attention has already been paid. I thank him for sending me a copy of that and I fully underline, support and agree with the noble Lord, Lord Lansley, that the Minister has been courteous, co-operative and helpful, so far, in his engagement with the committee on the trade agreements he is responsible for dealing with.

I welcome that the Government have put the commitments in the Written Ministerial Statement on the record today, and I look forward to hearing them repeated in this debate and to discussing and developing the detail to ensure that Parliament is able to scrutinise all future UK trade agreements meaningfully. As the noble Lord, Lord Lansley, has rightly underlined, these amendments deal with trade agreements only and not other international agreements. The committee that I chair is involved in those other agreements. The UK will be making many important new trade agreements, which can be just as crucial as the laws we make in Parliament. I will return to that point. Therefore, Parliament’s ability to scrutinise these agreements comprehensively will be of great importance.

I therefore commend the Government for their commitment to work with the International Trade Committee and the EU International Agreements Sub-Committee to ensure that we are briefed throughout the negotiations and have access to treaty texts and other related documents, to the extent necessary, on a confidential basis and at a reasonable time, before the start of the short 21-day scrutiny period set out in CRaG. This approach was introduced for the UK-Japan trade agreement, but will be particularly important for the upcoming US, Australia and New Zealand agreements, for which, unlike the Japan agreement, there will be no underlying EU agreements to refer to and make a comparison with.

Effective scrutiny, however, also requires that those who are affected by trade agreements, and experts, have the chance to comment on the consequences of any agreement. While “extensive stakeholder engagement”—I quote from the Government—on trade negotiations by the Government is welcome, it is imperative that specified stakeholders and experts also have early enough sight of the agreements to enable them to form a view and to feed into parliamentary scrutiny of the agreements. Again, this will be particularly relevant where there is no underlying EU agreement standing as a comparator and baseline.

15:45

The Written Ministerial Statement broadly reflects commitments previously made by the Government, notably in the February 2019 Command Paper to which attention has already been paid. But the Command Paper appears to contain a stronger commitment to the parliamentary scrutiny of negotiating objectives, stating that:

“At the start of negotiations the Government will publish its Outline Approach which, as described above, will include our negotiating objectives and be accompanied by a scoping assessment which will be informed by economic modelling, setting out the potential economic impacts of any agreement.”

Then there is this sentence:

“We will ensure that Parliament has a role in scrutinising these documents so that we can take its views into account before commencing negotiations.”

This last sentence is absent from the WMS and, in my capacity as chair of the EU International Agreements Sub-Committee, I would like to discuss with the Government how this commitment could be reinstated and the scrutiny of negotiating objectives strengthened.

I have previously referred the House to the statement by the great constitutionalist Walter Bagehot that:

“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”

I anticipate that, when the Minister replies, he will make some reference to Crown prerogative. In the Miller cases, the Supreme Court considered the relationship between Parliament and the Executive. In the Prorogation case, Miller No. 2, the court reviewed a number of cases where it had intervened to stop misuse of prerogative powers and considered the relationship with the principle of parliamentary scrutiny. It noted that

“the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.”

As Lord Browne-Wilkinson said in the Fire Brigade Unions case, at page 552,

“The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.”

I respectfully suggest that one should be wary of attributing too much sanctity to the position of Crown prerogative in today’s day and age. The question one should ask, when looking at the modest rights provided to Parliament under the CRaG Act, is whether they offer sufficient protection to Parliament. It might be argued that, while there may be few problems with a simple, straightforward agreement, where the answer as to whether Parliament consents is a binary yes or no, the answer should be different for complex trade agreements which may affect many facets of day-to-day life in the UK. In particular, the inability of Parliament to play a role until after an agreement has been signed is problematic, since it has no ability to press for its priorities to be included within the negotiating mandate or to amend the agreement once signed.

For that reason, Amendment 6, which seeks a greater role for Parliament, particularly in the discussion and determination of negotiating objectives, needs to be considered carefully. The noble Lord, Lord Purvis of Tweed, has clearly explained the purpose behind this amendment. It would give a greater role to Parliament in setting the negotiating objectives—not conducting the negotiations. That is difficult enough for a single body, such as the Cabinet of the country, but there is much to be said for setting the negotiating objectives. I therefore have much sympathy with this. As we noted, when we get to an agreement to be scrutinised by our committee or our fellow committee in the House of Commons, it comes with a take-it-or-leave-it question. For many, the answer is that it is better to have an agreement than not, but that does not mean it would not have been a good idea to have an opportunity to consider the negotiating objectives when they could have influenced the course of the negotiations.

As for Amendment 12, the noble Lord, Lord Lansley, who sits on the committee with me, has explained fully and, in my opinion, convincingly why his amendment would be valuable. It is of course much better to have commitments on the statute book than to have to depend upon oral commitments, so I agree with him about this amendment and have nothing to add in support of it.

Finally, I recognise that the process of scrutiny will be, to some extent, a partnership between government and Parliament. As I have said, I fully acknowledge the co-operative approach taken by the Minister and his colleagues in the department. As for practices, we will continue to look to improve those and I look forward, as I have said, to the further discussions envisaged by the Written Ministerial Statement to which I referred at the beginning of my remarks.

[Baroness Hayman (CB)]

My Lords, I declare my interests as set out in the register.

I rise to support Amendment 6 in the name of the noble Lord, Lord Purvis. I do so for two reasons. First, I believe that it provides a robust framework for the appropriate scrutiny of international trade agreements. The CRaG arrangements are not satisfactory. It is important that both civil society and Parliament have opportunities at the right time to scrutinise what is going through and what is being negotiated. I hope that the changes that have been made since we discussed these issues in Committee will convince the Government that they can agree to this amendment. I support it not just on the principle of parliamentary scrutiny but because the amendment sets out the areas to be covered in both the sustainability impact assessment in subsection (4) and the independent assessment in subsection (9).

In his contribution, the right reverend Prelate the Bishop of St Albans reminded us that trade agreements cover a huge swathe of public policy. As was suggested during earlier stages of the Bill, there is a temptation to consider that there is a simple economic impact that is the criterion by which we judge trade agreements. I do not believe that that is sustainable. We run the risk of importing into this country goods and services that diminish our stated—and, indeed, our statutory—responsibilities in areas such as climate change and environmental protection.

Equally, we run the risk of losing opportunities in the huge green economy that is coming. We have seen that the Government recognise this. There have been some welcome recent developments, such as the Prime Minister’s 10-point plan and our raised commitments on climate change and emissions, but it is really important that we go from these high-level aspirations to ensuring that we implement and integrate these commitments—particularly on the environment and climate change—into policy and legislation. That is not some soft, optimistic, rose-coloured view of the world; indeed, the Prime Minister himself said:

“Green and growth can go hand-in-hand.”


If that is so, we must look at what trade agreements we implement and how they fit in with our responsibilities and aspirations.

In Committee, I was critical of the fact that there was no mention anywhere in the Bill of the environment and climate change. I ought to pay tribute to the Minister and the Government for making clear in the Written Ministerial Statement and accepting the argument that a wide swathe of policies are affected by trade deals, saying that, when they publish the proposed independently verified impact assessment, it will cover the economic and environmental impacts of the deal. As I understand it, the legal advice is that “environmental” would cover climate change—I am delighted to see the Minister nodding on that—so I hope that we can move from that progress, which I very much welcome and am grateful for, to accepting this amendment and making this a statutory requirement.

[Lord Tyler (LD) [V]]

My Lords, I speak in support of Amendment 6 in the name of my noble friend Lord Purvis of Tweed. I will also refer briefly to Amendment 12 in the name of the noble Lord, Lord Lansley.

I served on the Joint Committee that examined the draft legislation that eventually emerged as the Constitutional Reform and Governance Act 2010—usually referred to as CRaG, as it has been during the debates on this Bill. On that committee, we were quite clear that we sought to correct the previous anomaly, which enabled the Government of the day to push through very significant international treaties with minimal or non-existent parliamentary scrutiny. There was a great deal of pressure for extensive ratification rights for both Houses, not least from Conservative colleagues who were, of course, in opposition then. However, we eventually resolved—for the sake of unanimity on the committee—on a minimalist compromise. Part 2 of CRaG therefore provided only for both Houses to have a statutory right to scrutinise treaties, with the Commons given a theoretical power to delay ratification. Under that Act, neither House had an obligation to debate the terms of a proposed treaty, let alone vote on it, but both could seek assurances and explanations from the appropriate Minister before consenting to ratification.

It is important to remind your Lordships that, in 2010, we were all in a totally different political and diplomatic environment. The United Kingdom was involved—and bringing extensive experience to bear—in combined treaty negotiations with our EU partners. However, our Government, and therefore our Parliament, were not engaged in the intricate details and the much higher level of trade discussions that now face us, with unprecedented complexity and significance for the future of our nation. In its report from April 2019, Parliamentary Scrutiny of Treaties, the Constitution Committee of your Lordships’ House put the challenge very well, saying that

“the provisions of the Constitutional Reform and Governance Act 2010 were enacted in a time where leaving the EU had not been seriously contemplated.”

This was its primary conclusion:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed.”


That has obviously been repeated often this afternoon. I am sure that all members of that Joint Committee would join with me in accepting the wisdom of that contemporary view.

Moreover, it was endorsed by the EU Committee in its June 2019 report, Scrutiny of International Agreements: Lessons Learned, which stated:

“We therefore agree with the Constitution Committee that the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”


In its following report, Treaty Scrutiny: Working Practices—dated July 2020—the committee went on to warn that cosmetic changes, with no statutory backing, would be unlikely to be sufficient. It said:

“If we cannot make treaty scrutiny work within the current framework, legislative change may prove the only means to ensure adequate scrutiny of international agreements.”


Ministerial Statements are not the same thing. Therefore, the first justification for my noble friend’s amendment—now supported by distinguished Members from many parts of the House—is that it carefully and comprehensively spells out the essential elements for detailed parliamentary scrutiny for all new international trade agreements. As my noble friend Lord Purvis stated earlier, in essence, this amendment updates CRaG to meet the dramatically different requirements of Brexit and establishes a critical, crucial constitutional principle.

In the debate on the committee report in your Lordships’ House, my noble friend Lady Bowles of Berkhamsted, drawing on her experience in EU negotiations, commented:

“The Government’s approach is overly biased towards maximising their secretive freedom, believing that that always enables playing their best hand. That is not my experience. The Government can be in a stronger negotiating position if Parliament is on their side on the journey.”—[Official Report, 7/9/20; col. GC 130.]


That view has been reiterated this afternoon.

16:00

The second, very substantial justification for this amendment relates to the peculiarly significant scope of this Bill. First, it is a subject of unique importance to our fellow citizens. The trade it deals with could impact not just on the concerns of food producers and processors but of everybody who eats—you cannot get more universal than that. We will come back to these concerns when we consider the later clauses and amendments on the Trade and Agriculture Commission.

For now, we need only register the emphatic support for Amendment 6 from the farmers’ unions, also referred to earlier. When I was first elected, Conservative candidates and MPs were much more respectful of the views of the farming community and of the NFU than they appear to be now, but I trust that Ministers do not completely ignore their advice. In its excellent memorandum for this debate, the NFU is unequivocal in endorsing Amendment 6:

“Securing the backing of MPs and Peers for these deals through votes in Parliament not only improves democratic accountability for UK trade policy, but also strengthens the hand of negotiators in establishing red lines and legitimately stating what will and will not be negotiable if a deal is to be secured.”

Its support for Amendment 6 is summarised as follows:

“New and clear arrangements that improve Parliamentary oversight and democratic accountability are critical as we ‘take back control’ of our independent trade policy.”

It would be a sad day when a Conservative Government refused to listen to the NFU.

Secondly, the Bill strays into very controversial territory in its challenges to the devolution settlements. As other Members have emphasised at all stages of the Bill, the dangers could not be more dire. In the Committee debate on the Bill on 8 October, my noble friend Lord Bruce of Bennachie summarised the serious concerns expressed from all parts of the House:

“Far-reaching decisions under the Agriculture Bill, the Trade Bill and the forthcoming Internal Market Bill put the devolution settlements and the integrity of the United Kingdom under immense strain … Ministerial insensitivity and indifference are, frankly, turbocharging nationalism and separatism.”—[Official Report, 8/10/20; cols. GC 220-22.]

I hope that the Minister responding to this debate will accept the strength of concern on this issue and the need for the amendment to address it.

Finally, I turn to Amendment 12, tabled by the noble Lord, Lord Lansley, which has self-evident merit. It was always a weakness of the very limited procedure set out in CRaG that the timing and sequence of any parliamentary scrutiny could not guarantee a coherent process. For example, if the more rigorous role of the Commons preceded any detailed scrutiny in this House, by definition, the decision of MPs to ratify a treaty or to withhold ratification could be taken without the benefit of the views of your Lordships. That would clearly be farcical.

The improvement suggested here would ensure a more rational sequence for debate and for relevant consequent primary and secondary legislation. Amendment 12 seems to me a useful addition but, as the noble Lord clearly appreciates, it is no substitute for the essential scrutiny requirements of the cross-party Amendment 6. As my noble friend Lord Purvis emphasised, nothing compares in clarity with inclusion in the Bill. The restatement of a convention, or even a Written Ministerial Statement, is no substitute for inclusion in the law of the land. As far as I can see, these two amendments are entirely complementary, and I hope the Minister will accept them both as clearly strengthening the whole Bill.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, these two amendments have much to commend them and dovetail neatly with parts of my Amendment 7, which we will consider in a moment: in particular, that any trade agreement or report from the Trade and Agriculture Commission should be laid before Parliament in sufficient time for it to be considered. I will go into more detail when we come to that group of amendments, but it would also extend the period during which a vote shall be held in each House to up to 42 days, so there is an overlap between Amendment 6 and my Amendment 7. This is important for the reasons set out by the noble Lord, Lord Purvis, my noble friend Lord Lansley and others, particularly, the noble and learned Lord, Lord Goldsmith, who chairs the committee and speaks with great authority on these issues. There must be time for both Houses of Parliament to consider those agreements, in the terms set out by the noble Lord, Lord Purvis, and others supporting Amendment 6.

I refer again to the useful table included on page 77 of the National Food Strategy, part 1, which I refer to as the Dimbleby report, part 1, which sets out the scrutiny of trade agreements in the various legislative Chambers. It is true that in Australia, Parliament must vote on legislation to implement a trade agreement only where it requires changes to national laws. However, tariffs are set in statute in Australia, so that effectively gives Parliament a vote on trade treaties. For TTIP, the House in Australia spent two days debating the treaty and the Senate one day. In Canada, as in Australia, Parliament does not have a formal vote on treaties; the Executive must lay a deal before Parliament 21 days before any action to implement the agreement is taken. However, as in Australia, Canada’s tariffs are set in statute, so again, Parliament inevitably needs to vote on the deal as a whole as well as any implementing legislation.

Perhaps the most thorough—albeit that we are leaving the European Union—is the European Union process itself. In New Zealand, Parliament must vote on legislation to implement the trade agreement, which means that the treaty is voted on again by the House only if it requires a change in domestic legislation. It has already been said that in Japan, the approval of the National Diet, the Japanese Parliament, is required for any trade agreement to come into force, and in Switzerland, all trade agreements must be approved by the Federal Assembly, the Swiss Parliament. If 50,000 Swiss citizens request it, they must be put to a referendum. Our scrutiny of trade agreements—not continuity agreements but new agreements, where, as the noble and learned Lord, Lord Goldsmith, identified, there is no underlying EU agreement—is deficient compared to that of other national jurisdictions and Parliaments.

I have sympathy with Amendment 6, although I will go on to explain when we come to the group beginning with Amendment 7 why I believe that my wording is preferable.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. I support the objectives of Amendment 6 in the name of the noble Lord, Lord Purvis, and colleagues, which seeks to ensure that trade deals are subject to parliamentary scrutiny and that consultation takes place with the devolved Administrations, a feature that is currently missing. This is particularly acute as we have just three weeks until the end of the transition period and do not know whether there is to be a trade deal or whether, if agreed, it will be zero tariff, or whether the UK will be operating under WTO rules.

This amendment, in the names of the noble Lord, Lord Purvis, and other noble Lords, has been supported by the Trade Justice Movement and Greener UK. It has five properties, which are very important for the scrutiny of trade deals. First, before negotiations, there will be a debate and vote by MPs on the Government’s negotiating objectives; secondly, during negotiations, there will be additional scrutiny through a dedicated parliamentary committee; thirdly, after negotiations, there will be a vote in both Houses on a final deal, prior to ratification; fourthly, there will be mandatory sustainability impact assessments on the impact of the new trade deal on the environment, public health, human rights and global development; and, fifthly, there will be consultation with the devolved authorities. As the noble Lord, Lord Wigley, said, those things absolutely are important. Coming from Northern Ireland and having been a representative of the devolved institution there, I say that it is important that we recognise and acknowledge the devolution settlements.

Those five provisions offer a considerable improvement on the level of parliamentary scrutiny of trade deals in the UK, whose processes lag behind those of the EU and other countries. The current treaty scrutiny system, as outlined in the CRaG Act, is inadequate and has been criticised by five parliamentary committees, including the Lords Constitution Committee and the Lords International Agreements Sub-Committee.

Modern trade agreements affect large parts of public policy, including consumer and workers’ rights, environmental and climate change legislation, food standards, health, public services and international development. In such a context, it is vital that trade deals are developed democratically. I support Amendment 6. I also support Amendment 12, in the name of the noble Lord, Lord Lansley. If the noble Lord, Lord Purvis, eventually presses his amendment, I will support him in the Lobbies this evening.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie. I agree with everything that she said. I was going to speak only to Amendment 6 but the opening speech on Amendment 12 was very convincing, so if the House divides on either amendment, I shall vote for them.

My problem with the Bill is one that I have had for the last two years with this Government—particularly in the last year, when they have kept trying to reduce our democracy. I simply do not understand how a Conservative Government can justify that. If they were sitting on the Opposition Benches at the moment, they would be shouting loudest about how corrupt it all was and how we were trying to take power back for the people, not for politicians, and so on. For me, it is incredibly frustrating constantly to hear and see these attacks on democracy. I do not think that this Government have a clue about it.

We have discussed these issues more than once over the past four years; it is getting quite repetitive. When we in this House amend and improve any legislation, it goes back to the Commons and then of course it is all whipped out or the Bill is delayed for a few years, so in some ways all our work is for nothing. With this Bill, the Government are again trying to bypass scrutiny. Why would they want to do that? Scrutiny helps—it can highlight the problems, as well as improvements—so why anybody would want to do that, I just do not understand. It should be enough, even for the most loyal Conservatives on the Government Benches, to ask, “What on earth we are doing here? Why are we bothering? There is all this hard work from the second Chamber and it comes to nothing.”

The Greens believe that the market and the economy should serve the people, not necessarily politicians or even big business. Therefore, I strongly support Amendment 6. It is a case of caring very much about climate change, the environment, workers’ rights and the quality of our food; I just do not understand why the Government are choosing to fight this. I accept that having a huge majority in the Commons means that they can pretty much do what they like, but why would they? Why not honour some of the promises that they made in the Brexit debate and give power back to the people?

16:15

[Baroness Noakes (Con)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, although I cannot accept her diagnosis of this being an attack on democracy. I shall make just three short points, because we do not want this to go on all day.

First, noble Lords who have brought forward these amendments have not adduced any evidence as to why they are needed. The core procedures for the handling of treaties have served this country well. The Ponsonby rule, which the noble Lord, Lord Purvis of Tweed, reminded us of again today, is now enshrined in CRaG. As I said, no practical issues have been put forward for these amendments being needed. The Government have responded to the desire, as expressed by both Houses of Parliament, for more information and more involvement in the processes of scrutiny of trade treaties, most recently in the latest Ministerial Written Statement. I think that I am the only noble Lord speaking here today who has not seen a copy of that Statement but I am sure that it is splendid.

My second point is on the royal prerogative and prerogative power. I agree with my noble friend Lord Lansley that, despite Amendment 6 saying that it does not seek to override or diminish prerogative power, its effect is that, in practical terms, it does so—in particular, in relation to the approval of the negotiating objectives, which is not part of our current processes—and could easily restrict the prerogative power available to government. That is why I think that the Constitution Committee of your Lordships’ House did not recommend that we go down that route.

My third point is on parliamentary accountability. Both amendments in this group are predicated on a view that parliamentary accountability requires legislation to make it effective. That is plainly not in accord with our parliamentary history. It is also, I submit, a dangerous route to go down. The strength of the UK’s parliamentary system is its capacity to evolve constantly, as we have seen in relation to free trade agreements with the way in which the Government have been open to involving Parliament increasingly and in different ways, including through engagement with committees.

If we wrote too much into legislation, that could work against the flexibility that is the hallmark of our system and has served us well, in particular over the last couple of years. I believe that that could end up being Parliament’s loss at the end of the day. The noble and learned Lord, Lord Goldsmith, referred to the constructive partnership that has been emerging between his committee on treaties and the Government, and the practical ways in which the work of his excellent committee is being helped to be effective. I have to say to noble Lords that the more you codify, the more it is less likely that constructive partnership becomes the hallmark of an ongoing approach. Noble Lords really cannot have it both ways.

[The Earl of Sandwich (CB) [V]]

My Lords, I also find Amendment 6 rather severe: not only is it asking for accountability to Parliament but it challenges the entire CRaG process. However, I accept that there is strong public feeling on this, which is confronting the Government’s post-Brexit policy directly and the political impetus towards global free trade. Many stakeholders and charities have already commented on several FTAs currently passing through Parliament; they want to be sure that there are safeguards throughout the process of scrutiny, and I understand that. I agree in principle with the noble Lord, Lord Purvis, and the right reverend Prelate. It is an impressive spectrum of opinion.

The noble Lord, Lord Tyler, refers to CRaG as minimalist, and he may well be right. However, I said earlier in our proceedings on the Bill that I had accepted the Government’s view that they had been flexible and that CRaG was, for the time being, fit for purpose and need not be altered yet—at least not radically. We have made a good start. The noble Lord, Lord Lansley, uses the word “consensus”; I admire what I know of the European Parliament’s scrutiny processes, especially its opening up to civil society in all member countries, but I have misgivings about a debate on the objectives of every FGA, because I can guess how much it would slow down our own process.

The noble Lord, Lord Lansley, made an important point about domestic legislation, but all this adds to the CRaG process. It is desirable, and there may be a time for it, but as we are entering a new era of trade agreements, we should wait to see how our existing process will cope with so much demand. Do we have the resources to do this? I am not sure whether the noble Baroness, Lady Jones, has taken that on board. We have already missed the boat with a row of important new agreements, either past or imminent. I suggest instead that CRaG and the issue of 21 days should be reviewed in a year’s time. So while I am sympathetic to the amendment I may have to abstain on the vote.

[The Deputy Speaker (Lord Haskel) (Lab)]

I call the noble Baroness, Lady Finlay. No? Then I call the noble Earl, Lord Caithness.

[The Earl of Caithness (Con)]

My Lords, I am sorry that the noble Baroness was unable to give us the benefit of her wisdom.

An advantage of being “tail-end Charlie” as the last speaker of 15, is that most of the points have already been made, which helps to speed things up. Let me start with Amendment 12 in the name of my noble friend Lord Lansley. He made some convincing arguments and, unless the Minister can convince me otherwise, we should support the amendment. The noble Earl, Lord Sandwich, said that CRaG was fit for purpose. I contend that it is not. It was designed in another era, when we were part of the EU and the EU was doing our trade deals. Now we are doing our own trade deals—good luck to the Minister and godspeed to all his civil servants; they will need it in this complicated world. The trade deals that we negotiated 50 years ago are hugely different from those we are negotiating now. Today’s deals are much more complex and involve not only trade but each and every one of us—the environment, biodiversity, the way we live. Therefore, it is important that Parliament is properly involved.

How complex trade deals have become is the compelling argument for Parliament to be given a statutory right to look into these matters. Trade deals are only going to get more complicated, therefore the discrepancy between the current situation, which is out of date, and what is needed in the future, is growing. Effective scrutiny by Parliament on a statutory basis would improve the quality of decision-making. Nothing hones a civil servant’s pen quite like getting Parliament to have a good look at what they are doing.

We have heard that a common objection to the wording of Amendment 6 is that it ties the Government’s negotiating arms and affects their room to negotiate with the other side. I do not think it does. In America, Congress is a very useful weapon that the US negotiators use. They constantly say, “We couldn’t possibly get that through Congress”. Our discussions with the EU are at a very delicate stage, and if there had been a mandate from Parliament that one of the negotiating objectives of this Government was that we would be a sovereign state equal to the EU, we would not be having prevarications with some of the EU states. We would have had a much better chance of getting a deal. Rather than the Prime Minister saying: “We are going to be a sovereign state”, he could quite rightly say: “Parliament has said that we are going to be a sovereign state”. That would have saved a lot of the rather frustrating and silly discussions that are going on at the last minute. It would also consolidate the position of the UK as a serious negotiating partner which will ratify whatever deal is agreed if Parliament has had a proper say.

I am very much aware that the Minister has made concessions on a number of points, but that is not the same as having them in statute. In this day and age, given what has happened in America and how the EU looks at its trade deals and has adapted, it is time that we adapted and took a firmer view, giving Parliament the statutory backing that it needs to look at these matters, but not to the extent of tying the hands of the Minister and the Government in any negotiating deal. Therefore, I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am sorry that technical difficulties meant that I could not come in just now. I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, who made the case for it comprehensively. In Committee, the involvement of the devolved Administrations in consultation over trade was stressed whenever UK Ministers wished to make an agreement that included issues that fall within devolved competences. Respect for, and consideration of, the devolved responsibilities and implications of agreements will result in clearer communication between Westminster and the Government, in better relations with the devolved Administrations, and in clear messages to the population overall. This amendment would bring agreement centrally into Westminster, not disrupted by protesting voices from devolved nations that fuel separatist movements. The noble Lord, Lord Wigley, has set out the benefits with arguments that I endorse.

On issues relating to health we discussed at length the importance of the Government’s commitment that the NHS is not up for sale. This country’s unique databases have enormous potential value. As health, whether human, animal or ecological, is a devolved responsibility, it is essential that anything touching on health in its broadest context is the subject of consultation with the devolved Administrations. The noble Lord, Lord Lansley, eloquently stressed that Ministers should not ratify an agreement that would not be approved by Parliament. In respecting the royal prerogative, the individual nations must not find themselves sidelined.

Amendment 6 is essential to consolidate, not destabilise, the united nature of the United Kingdom. To break up the United Kingdom would indeed be an “abject failure of statecraft”.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, we have had a good and wide-ranging debate today. I want to pick up on the speeches of the noble Lord, Lord Purvis, who introduced Amendment 6, which I have signed, and the noble Lord, Lord Lansley, whom I thank for his clear introduction to Amendment 12, which we also support. The noble Earl, Lord Caithness, is not a normal ally on many of the issues we have discussed in your Lordships’ House over the years. However, he made the point about the importance of trade so well that I wanted to endorse it. Trade is now central to our existence as a country and very important to the individuals who live here because it impacts on almost every aspect of our lives.

16:30

The issues that have dominated this debate are interrelated with the three key issues that have been around since your Lordships’ House first discussed trade when considering the original trade Bill, but they are also separate. They are interrelated because they all rely on Parliament and the Executive co-operating in a constructive partnership, which I agree exists, to achieve the best outcomes for the UK, as has already been mentioned. The issues are: the non-regression of standards—dealt with in Amendment 22 and addressed in Amendment 12, proposed by the noble Lord, Lord Lansley; the scrutiny of trade agreements and the objectives, and progress made towards those objectives in the final texts; and the process of ratification. These issues are not so separate that they require separate approaches, but they point to different directions under different sources of authority. I believe that, with constructive partnership, the Government and those debating these issues today are not far apart, and it should be possible to get at least a working way forward, even if we cannot find the exact words we want today.

We must recognise that we are in a bit of a quandary. What we thought was a settled set of positions has turned out to be a moving target. A good example is the recent amendment of the Agriculture Bill during its progress between the other place and your Lordships’ House. Amendments were made which effectively support the non-regression of standards, at least in relation to agriculture and the environment. Clearly, that reads across to this Bill, and we will need to return to that issue when we consider Amendment 22. As the noble and learned Lord, Lord Goldsmith, said, a Written Ministerial Statement issued this morning offers greater reassurance regarding the practices and processes required under the present scrutiny and approval arrangements. However, these are not underpinned by statute and there are limitations in respect of some of the issues the Committee will want to raise with the Minister.

Given that we are slightly uncertain as to the Government’s position, how do we want to progress? Where do we want to go with these issues? I hope this debate has revealed that there is a modest but good case for a 21-st century model for how we do trade. We are the only major democracy which does not allow Parliament a role—the noble Baroness, Lady McIntosh, made that clear in her résumé of the issues in play in other countries. If we do not do something at this stage, trade will be the only public policy area effectively off limits for the UK Parliament. That is unacceptable.

Amendment 6, as has been said, tries to engage with the Government’s red lines. It recognises the royal prerogative, but it is wise to bear in mind the point made by the noble and learned Lord, Lord Goldsmith, about not sacrificing our objectives and principles in pursuit of the royal prerogative. It has been challenged over the years and continues to be debated in relation to parliamentary sovereignty, which we all believe to be more important. Amendment 6 provides a schema that would give Parliament the effectiveness it currently lacks in reviewing and approving trade negotiations, and I commend it to your Lordships’ House.

However, that issue is best addressed by Amendment 12, which focuses on parliamentary procedures under the CRaG legislation. It includes a very important element which we have not debated sufficiently: an analysis of changes in domestic legislation if, as the noble Lord, Lord Lansley, said, that is required by a future trade agreement; and a requirement to undertake those changes before ratification, ensuring that the statute book is in order before we sign up and implement the deal negotiated for us. It looks very hard at the 21-day period of consideration but, in the spirit of partnership, does not challenge the Government’s wish to retain CRaG. However, it ensures that time is made available, not because the Opposition want to debate these issues, but because the Government do. As the noble Lord, Lord Lansley, said, it does not limit ratification in exceptional circumstances. It does the trick of trying to find a 21-st century model, without tearing up the existing position. We will support that amendment if the noble Lord chooses to test the opinion of the House at the end of this debate.

We are not trying to be too radical; we are trying to be fair and reasonable. As the right reverend Prelate the Bishop of St Albans said, we do not want to lag behind everyone else on transparency. There is a consensus for change. If we support Amendment 6 and vote through Amendment 12, we will get a long way down that track.

[Lord Grimstone of Boscobel (Con)]

I would like to thank noble Lords for the courteous way in which this debate has been conducted. I will begin with Amendment 6, in the name of the noble Lords, Lord Purvis of Tweed, Lord Stevenson of Balmacara, and Lord Curry of Kirkharle, and the right reverend Prelate the Bishop of St Albans. During the passage of this legislation, I believe there has been a general acceptance on all sides of the importance of Parliament’s being able to effectively scrutinise trade policy, including our new FTAs with the likes of the US, Australia and New Zealand. We have consistently ensured that there is sufficient scope for Parliament to do this.

The Government have taken a number of important steps, and it is pleasing that noble Lords recognise this and have supported us. For example, we have shared extensive and comprehensive information with Parliament ahead of negotiations with the US, Australia, New Zealand and Japan. On 12 October, I made a Written Ministerial Statement setting out the transparency and scrutiny arrangements for specific international trade deals, starting with Japan. Today, I have made a further comprehensive statement setting out arrangements for trade agreements with the United States, Australia and New Zealand and the UK’s proposed accession to the CPTPP. I believe this statement adds further weight to the enhanced procedures we have already outlined. I was pleased that the nobel Baroness, Lady Hayman, picked up on and welcomed the reference to environmental impacts, and grateful for the pragmatic comments about the statement from the noble Earl, Lord Sandwich. I was also grateful for the comments made about the statement by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Stevenson.

I believe that our approach to transparency, and openness to scrutiny by Parliament and stakeholders, is at least as strong as any other Westminster-style democracy, such as Canada, Australia and New Zealand. I can assure the noble Lord, Lord Purvis, that nothing should be read into the omission of South Africa from this list.

Your Lordships have drawn comparisons between our approach and those taken by the EU and US. They are more similar to each other with their federalised arrangements, than they are to the UK. The European Commission negotiates on behalf of the interests of the 27 member states and its scrutiny arrangements reflect the specific and unique structure of the EU. The same applies to the US. The role the US Congress plays in scrutinising international trade agreements is a product of the constitutional make-up of the United States. I suggest it would be wholly inappropriate for the UK, with our own unique constitutional framework, to import the regime of another country, particularly one where the constitutional circumstances differ so markedly.

We have frequently repeated our commitment to ensuring a transparent trade policy and we have delivered on this time and time again. We have made significant progress in this space. We have listened to concerns from parliamentarians and have taken actions to address them, including putting the Trade and Agriculture Commission tack on to a statutory footing, which will be discussed in the next group of amendments.

We have kept Parliament regularly updated on the negotiations as they have progressed. We have done this via Written Ministerial Statements to update Parliament on key milestones and we have held regular, open briefing sessions for all parliamentarians throughout the negotiations on our FTAs. We have engaged closely with the International Trade Committee and the International Agreements Sub-Committee, including writing to the chairs of both committees at every key stage and facilitating private briefings for them with Ministers and our chief negotiators. My noble friend Lord Lansley, as a member of the IASC, has seen us in action on this and has complimented us on it. We will continue to share confidential treaty text on the FTAs that are currently under negotiation, and on the CPTPP when it comes down the track, with the ITC and the IAS. We will ensure that they both have time to produce a report on any such concluded agreement before it is laid before Parliament under the CRaG procedure.

I hope noble Lords will also realise and accept that we have demonstrated this with the Japan agreement. I accept absolutely the importance of this, as described so cogently by the noble and learned Lord, Lord Goldsmith. Both of the committees’ reports on Japan have now been published, with, if I may say, both committees praising the engagement that they have had with my department. The IASC report notes that

“DIT has been a constructive partner in helping to determine the right processes by which parliamentary scrutiny of the Government’s new function of negotiating trade deals can be facilitated.”

In addition, the ITC and IASC reports congratulate the Government on their achievement in securing the Japan agreement, noting the warm welcome that it has had from witnesses in their inquiries.

I turn to the devolved Administrations. The Government have always been clear that we want to engage meaningfully with them on our trade policy. As Counsel General for Wales, Jeremy Miles MS, recently confirmed in his evidence on 19 November to the Welsh Affairs Committee, the DIT has listened to the devolved Administrations. We have established a new ministerial forum on trade and we have used it to consult the DAs on all of our trade agreements. The forum has met three times already this year and will meet for a fourth time later this week. I can assure the noble Baronesses, Lady Finlay of Llandaff and Lady Ritchie of Downpatrick, and the noble Lord, Lord Wigley, that our desire to engage with the devolved Administrations is both deep and sincere, and we will continue to do so. I believe that putting these arrangements into statute would upset this balance. While in practice, the Government engage with the devolved Administrations on international trade policy, it is important to remember that this has legal status as a reserved matter. We have to take care to preserve this status.

I turn to impact assessments. The Government are committed to an inclusive and transparent trade policy. Scoping assessments are published to assess analytically the impacts of new FTAs in advance of negotiations, and following the conclusion of negotiations currently in train, a full impact assessment will be published prior to implementation. This will be presented to Parliament, alongside the final treaty text, together with an explanatory memorandum to aid parliamentarians in their scrutiny role. Of course, this is in addition to the CRaG procedure. We will also ensure that the impact assessments are independently scrutinised by the Regulatory Policy Committee.

In drafting the amendment, I welcome the fact that the noble Lord has tried to address our point at previous stages of the Bill; namely, that the negotiation and making of treaties, including international trade agreements, is a function of the Executive held under the royal prerogative. However, despite the drafting of subsection (1), that

“Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement”,


I am afraid that the amendment does exactly that because it places restrictions on the ability of the Government to enter into treaty negotiations and to ratify treaties. With all due respect to the drafters of the amendment, it starts by saying one thing and then it goes on to say another. I am grateful to my noble friends Lord Lansley and Lady Noakes for also spotting that and pointing it out to your Lordships.

Giving Parliament a veto over our negotiating objectives would curtail the royal prerogative, whatever the preamble to the proposed new clause says, and would limit our flexibility to negotiate in the best interests of the UK. I know that noble Lords are aware that the Constitution Committee of this House recommended in its 2019 report on the scrutiny of treaties that mandates for treaties should not be subject to parliamentary approval.

Ultimately, if Parliament is not content with a trade agreement that we have negotiated, it can—like for the majority of all other treaties—raise concerns by resolving against ratification under the statutory CRaG procedure. Under that, as noble Lords will know well, Parliament can delay ratification indefinitely, giving it, in effect, the power to block ratification. The Government are committed to a transparent trade policy with comprehensive engagement with Parliament. We have already demonstrated this and we will continue to do so. The Government have moved a long way in developing comprehensive scrutiny arrangements that are appropriate to our constitutional make-up.

I turn now to Amendment 12 in the name of my noble friend Lord Lansley. I thank him for the amendment. He and I have already had constructive discussions on the topic, and I think it is fair to say that we are in mutual agreement on the importance of strong parliamentary scrutiny and the transparency of our trade deals.

On implementing our trade deals, noble Lords will be aware that it has long been UK practice not to ratify international agreements until any necessary implementing legislation has been passed domestically. This is a well-established process that the FCDO has followed historically for treaties for centuries in order to ensure that the UK will not be in breach of the treaty when it enters into force. The Government have no intention of deviating from this process in relation to our new trade agreements. However, we believe that putting this on to a statutory footing would be inappropriate and would deprive and restrict the Government’s flexibility in the conclusion of our international trade agreements, as well as curtailing the treaty-making prerogative.

I know that my noble friend has expressed concerns about the level of detail in the explanatory memorandums that are laid alongside treaties. I agree with him that Parliament should know clearly how the Government intend to implement any commitments made in an FTA and what legislation Parliament will need to pass in order to implement it domestically. I would argue that, in part, we already do this. For example, in paragraph 5 of the Explanatory Memorandum to the recent Japan agreement, we outline how the agreement will be implemented in domestic legislation. It includes details on how commitments in specific policy areas, such as tariffs, procurement and technical barriers to trade, will be implemented, and where legislation will need to change. I can say without reservation that I would be more than happy to explore with my noble friend how we might make this clearer and more useful to parliamentarians. However, I do not believe that this is an issue which is best resolved in legislation.

In respect of facilitating debates on FTAs as part of CRaG, we have been clear that the Government will facilitate requests for debate on the agreement—including, of course, those from the relevant Select Committees—with the only caveat being that it is subject to available parliamentary time. As many noble Lords know far better than I, it would not be appropriate for the Government to guarantee debating time in the way suggested in this amendment. As I am sure my noble friend with his ministerial experience can appreciate, any Minister would like to be able to guarantee debating time. However, the pandemic and other matters have shown us the need to remain flexible in how we manage precious parliamentary time.

I assure noble Lords—I said this in Committee and willingly repeat it now—that it is not the Government’s intention to shy away from scrutiny. I believe that scrutiny gives us better free trade agreements; the Government want these agreements to be examined by parliamentarians and effectively scrutinised. I hope that noble Lords do not mind my saying that the Government’s practical record on this has been good. Requests for debates have been met, most recently on our FTA with Japan, which was debated in your Lordships’ House on 26 November. I am very pleased that 31 speakers participated in that debate, which followed on from the six earlier debates on our continuity agreements that we facilitated. I hope that these will be the first of many debates on our forthcoming agreements that the Government will facilitate, where—I repeat—parliamentary time allows.

This debate has allowed me to outline the extensive steps that the Government have taken to ensure that Parliament has an effective scrutiny role in the constitutional context of the UK. This includes our long-standing commitments to provide comprehensive information to Parliament in advance of starting negotiations—beyond what many other partner countries undertake—along with conducting thorough engagement throughout negotiations. In addition, we have further enhanced arrangements at the end of negotiations. On this point, I thank noble Lords for helping us to shape these arrangements; I am sure that we will continue to shape and improve them as we go forward. Noble Lords have helped to improve the process of FTA scrutiny and, frankly, persuaded the Government to bring forward their amendments on the Trade and Agriculture Commission. The EU International Agreements Sub-Committee of your Lordships’ House persuaded the Government to ensure that it is given time ahead of the start of the CRaG period to produce a report on the agreement. This will ensure that your Lordships are better informed and able to scrutinise our new agreements more effectively.

As many noble Lords have expressed over the course of this Bill, this is the first time in nearly 50 years that the UK has undertaken trade negotiations; I hope that noble Lords recognise that my officials are not doing a bad job of it. I believe that we should utilise the flexibilities afforded to us under our constitutional arrangements to ensure a robust scrutiny process. I repeat the Government’s commitment to continue to ensure that these arrangements remain fit for purpose, working in close collaboration with the relevant committees.

I hope that I have been able to address your Lordships’ concerns adequately. I therefore ask my noble friend Lord Lansley not to move his amendment and the noble Lord, Lord Purvis, to withdraw his amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for a very thorough response; he will find out how persuasive I have found him in a moment after I draw out two or three points from the debate. I am grateful to all those who have taken part and, indeed, for the support that I have received, including from the noble Lord, Lord Stevenson of Balmacara.

I have been a Member of this House for seven years. While the noble Lord was making his remarks, I reflected on the fact that if the noble Earl, Lord Caithness, supports a liberal amendment and the noble Lord, Lord Lansley, persuades a Green Peer, it is pretty evident that there is some cross-party backing. We can rely on the noble Baroness, Lady Noakes, to be consistent in her position. I am grateful to her. She always makes me think in these debates, even though she does not often persuade me. I have a copy of the Written Ministerial Statement, which I can share with her if she likes; I am afraid that it is rather heavily annotated, which will not surprise her. I think the point that she made was ably addressed by the noble Earl. Yes, these are our first trade negotiations in 50 years, but almost by definition, as the noble Earl and the noble Baroness indicated, these agreements are very different in nature from those of 50 years ago. They are primarily concerned with non-tariff measures rather than tariff measures.

I agree with the Minister that our approach must suit our own unique constitutional arrangements. With regard to that, the Minister should reflect that the prerogative power is not a static thing as part of those constitutional arrangements. It has been demonstrated that there have been changes in the use of that prerogative power over many years. It used to be a prerogative power that Parliament had no say in the deployment of troops, for example; this is now recognised to be rather different. I assure the Minister as the drafter of this amendment that amendments do not get tabled in this House without the beady eye of the Public Bill Office ensuring that one clause does not contradict another. So I believe in the robustness of this amendment, but I am grateful for his advice.

If I were arguing that, if Parliament is not content with the Trade Bill, it can raise any concerns it may have over a trade deal by resolving against ratification and delaying any implementing legislation indefinitely, I think that the noble Baroness would be frustrated with me for proposing such an argument. What would it say if a sovereign entity—the sovereign Government—signed an agreement then Parliament used a mechanism to delay the implementing legislation indefinitely? That would massively undermine the sovereignty of the Government that had signed an international agreement—yet that is the Government’s position in the Written Ministerial Statement; I quoted from it. It is not a fit-for-purpose mechanism; it is not an appropriate way of considering how we approve trade agreements.

Secondly, I refer to the point made by the noble Lord, Lord Lansley. These procedures are not very good; I would love him to have a right of reply to the Minister too. I will not endeavour to speak for him, nor would he want me to, but the noble Lord’s question—with regard to the amendment—about the ability of Parliament to make a decision before the signature is deliberate. In trade agreements, we know that there is a finalisation process and then, often, an initialling process. The initialled text will then usually go to the Parliament before there is full signature by the sovereign country. It is no accident that, at that stage, in Japan, which went through the process on 24 November, the law then authorised the Japanese Government to put their formal signature on the agreement. If there are problems, the time to highlight them is not as we have it—after the event, where a treaty has basically been made—after which we have the power only to delay the implementation. The right time is at the time of signing. This allows a judgment to be made to avoid problems down the line if there is still a great deal of unease with the agreement that has been signed.

This brings me to my last point. I am glad that the Minister referenced the next group. One of the points that he was at pains to make—indeed the noble Lord, Lord Lansley, made a slight reference to this—concerned whether we are now putting a great deal of restriction on this power. As I mentioned before, the prerogative power has not been set in stone over the years, nor have the restrictions on any British Government over how they conduct or conclude negotiations. No British Government would go into any negotiations that would breach human rights agreements—the ECHR, for example. There are international obligations that we are bound to accept. We are a sovereign Parliament and the prerogative power, as the Minister would suggest, should be completely unfettered. Well, there is quite a high level of fettering about that.

17:00

We saw this in the European negotiations, both with the Theresa May Government and the Boris Johnson Government. Both published draft texts which they said they would stick to, or would ask the House of Commons to resolve on negotiation objectives for that. This is not, therefore, an unusual set of practices.

When it comes to restrictions—this is a point made both by the noble Baroness, Lady Noakes, and the noble Lord, Lord Lansley—the question is whether the elements of my amendment that put requirements on the Government both to consult Parliament and to present reports are, in effect, a restriction on the use of that prerogative power. If that is the case, then both should be opposing government Amendment 34 in the next group, because that amendment sets the criteria on a report from the Trade and Agriculture Commission to satisfy Section 42 of the Agriculture Act 2020 that just passed. I remind noble Lords that Section 42 placed a condition on Governments, before a treaty could be laid under the CRaG Act, that they make a statement of complying with domestic standards. That was a government amendment in a government Act that is now being amended for the Trade and Agriculture Commission. If that is not a restriction on the ability of Parliament to lay proposals, then I do not know what is.

I hope the Minister knows that I respect him and listen to him. However, I do not believe that he sufficiently addressed the wide concerns from across the House, including the main one, which is the necessity of bringing the processes up to date. Yes, it is the case that we are negotiating for the first time in 50 years. This is our opportunity as a House to say to the Government how we believe we should frame the next 50 years of negotiating these—as the noble Earl, Lord Caithness, said—complex and deep agreements. On that basis, I wish to test the opinion of the House.

17:02

Division 2

Ayes: 308

---

Labour: 138
Liberal Democrat: 81
Crossbench: 61
Independent: 18
Bishops: 4
Green Party: 2
Conservative: 1
Plaid Cymru: 1

Noes: 261

---

Conservative: 215
Crossbench: 29
Independent: 9
Democratic Unionist Party: 5
Ulster Unionist Party: 2

17:16

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

We now come to the group beginning with Amendment 7. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.

Amendment 7

Moved by

[Baroness McIntosh of Pickering]

7: After Clause 2, insert the following new Clause—
“Trade and Agriculture Commission
(1) A body corporate called the Trade and Agriculture Commission (“TAC”) is established.(2) The TAC must establish criteria for maintaining standards equivalent to standards applied within the United Kingdom at the time of import for goods imported under a trade agreement between the United Kingdom and any other state.(3) When the Secretary of State is undertaking negotiations for an international trade agreement on behalf of the United Kingdom with another state, the Secretary of State must consider any advice given by the TAC for the purposes of ensuring that the international trade agreement does not reduce or compromise standards.(4) A Minister of the Crown may not lay a copy of an international trade agreement before Parliament under section 20(1) of the Constitutional Reform and Governance Act 2010 that contains provisions relating to the importation of goods into the United Kingdom unless Conditions A, B and C have been met.(5) Condition A is that the TAC has prepared a report assessing the extent to which the international trade agreement is likely to reduce the ability of the United Kingdom to maintain standards.(6) Condition B is that a Minister of the Crown has laid the report before Parliament.(7) Condition C is that each House of Parliament has agreed a motion, moved in accordance with subsection (8) by a Minister of the Crown, that the international trade agreement does not diminish standards within the meaning of this section.(8) So far as practicable, a Minister of the Crown must make arrangements for the motion mentioned in subsection (7) to be debated and voted on by each House of Parliament within a period of 42 days beginning with the day on which the report was laid under subsection (6).(9) In this section, “standards” means standards relating to—(a) animal welfare, (b) protection of the environment,(c) food safety, hygiene and traceability,(d) plant health, and(e) employment and human rights.(10) Schedule (The Trade and Agriculture Commission) makes further provision about the TAC.”

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, in moving Amendment 7 I will speak also to Amendment 44 and to the government amendments in this group. I take this opportunity to thank the Minister, my noble friend Lord Grimstone, for reaching out to those of us with an interest in this group of amendments with the meeting that was held between Committee stage and today, and for coming forward with the government amendments in his name.

At that meeting, there were a number of potential deficiencies in the anticipated amendments to the Trade Bill, as outlined by my noble friend Lord Grimstone, that we now have before us today. In particular, a number of us expressed concern about the absence of labour and human rights standards being upheld—as was contained in the original Fairhead amendment, now superseded by Amendment 6. We also expressed concern about the fact that the independence of the Trade and Agriculture Commission still seemed to be in doubt as, at the time, there was no reference to resources, staffing, offices, et cetera, and new appointments would need to be made, as the current members of the Trade and Agriculture Commission were initially appointed for a period of six months and are unpaid, as I understand it. We were also concerned about the extent to which Parliament would have a role in scrutinising these appointments and what form that scrutiny would take. There was also, again, a general lack of understanding about the exact form of scrutiny, and about the timing of the report from the Trade and Agriculture Commission, and further reports of individual trade deals as negotiated, that Parliament would receive and what the procedure was for looking at that.

Taking these points in turn, I will first go through my Amendments 7 and 44. As I say, I am grateful to my noble friend for coming forward with his amendments, which I believe will, for the most part, resolve many of my concerns. It was remiss of me not to thank the noble Baronesses, Lady Henig, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, for their support for Amendments 7 and 44, and I take this opportunity to do so—I am most grateful to them.

The thrust of Amendment 7 is that the Trade and Agriculture Commission

“must establish criteria for maintaining standards equivalent to standards applied within the United Kingdom at the time of import for goods imported under a trade agreement between the United Kingdom and any other state … When the Secretary of State is undertaking negotiations for an international trade agreement … with another state, the Secretary of State must consider any advice given by the TAC for the purposes of ensuring that the international trade agreement does not reduce or compromise standards.”

In subsection (4) of the proposed new clause, we set out that:

“A Minister of the Crown may not lay a copy of an international trade agreement before Parliament under section 20(1) of the Constitutional Reform and Governance Act 2010”—


which we have called “CRAG” throughout these proceedings—

“that contains provisions relating to the importation of goods”

unless certain criteria have been met. We set out those criteria in subsections (5), (6) and (7): first,

“that the TAC has prepared a report assessing the extent to which the international trade agreement is likely to reduce the ability of the United Kingdom to maintain”

its own standards; secondly,

“that a Minister of the Crown has laid the report before Parliament”

and, thirdly,

“that each House of Parliament has agreed a motion, moved in accordance with subsection (8) … that the international trade agreement does not diminish standards within the meaning of”

subsection (8), where we state that that Motion should

“be debated and voted on by each House of Parliament within a period of 42 days beginning with the day on which the report was laid”.

This builds on the argument that we have had on the preceding Amendment 6 and subsequent amendments in this group. In my view, the period of 21 days is simply not enough time to take these arguments into consideration, and a period of up to 42 days—it need not take the whole of that—would be more appropriate.

We set out in subsection (9) what the standards mean. In addition to

“animal welfare … protection of the environment … food safety, hygiene and traceability … plant health”,

we add, in paragraph (e), what I know is of considerable importance to a number of noble Lords: “employment and human rights.” I do not believe that those appear anywhere else. I would be interested to know the extent to which my noble friend is prepared to look at employment and human rights, as they are generally understood to be terms and standards that are met. I think it was involved in previous negotiations and possibly also in the Fairhead amendment.

The main thrust of Amendment 44 goes to the point that I raised earlier about the independence of the Trade and Agriculture Commission. It is very similar to, but goes further than, that in the name of my noble friend Lord Grimstone: we suggest that we take the standard wording here, that:

“The TAC is not to be regarded … as the servant or agent of the Crown”


and that its property is also not to be considered as such, but add that:

“The TAC is to consist of … a Chair appointed by the Secretary of State … other non-executive members appointed by the Secretary of State … a chief executive appointed by the Chair with the approval of the Secretary of State or, if the first Chair has not been appointed, by the Secretary of State”.


At this stage I have a question for my noble friend the Minister about both Amendment 44 and his government amendment, which we shall come on to. Is it his understanding—certainly it would be our wish, and my fervent desire—that all these future appointments will follow the usual procedures where they have a pre-appointment hearing, particularly for an incoming chair of the Trade and Agriculture Commission? It may be the present chairman; indeed, it is my current hope that the present chairman of the commission will be reappointed but, as this will be a statutory body in future, under this group of amendments they would be subject to the pre-appointment hearings by the relevant Select Committee. I hope the Minister will confirm that that is his understanding as well.

We then set out the terms of appointment and tenure of members. I understand that we took this from previous such provisions, not least for the Trade Remedies Authority, which is also part and parcel of this Act. So we do not mean to be prescriptive; we are literally lifting, for shorthand purposes, these provisions that exist elsewhere and are tried, tested and understood. I hope the Minister will understand the basis on which we have drafted Amendments 7 and 44.

I turn to the amendments that the Minister has presented and will shortly move today. He will be pleased to hear that I like government Amendment 31 but, as I indicated earlier, there are a number of omissions from what is generally understood. The obvious one is employment and human rights, but I believe that food safety, hygiene and traceability are also very important. That has been covered in debates in this House and in the other place.

Government Amendment 34 seems to cover a lot of the ground that is in Amendments 7 and 44, as previously discussed. I ask for clarification on subsection (2), which inserts the words:

“In preparing the report, the Secretary of State must”,


and then goes on to say,

“except insofar as they relate to human life or health”.

There is a general understanding regarding this. I know that a previous amendment was carried in the name of the noble Lord, Lord Stevenson, that failed to mention the original Article 36 provisions of the Treaty on the Functioning of the European Union, which refer to public health and safety, although I forget the actual wording. I seek clarification that that is in fact what the Minister is referring to here.

Obviously, I am delighted that, under subsections (3) and (4), there will be a report of advice received, which I presume will be laid. What appears to be missing here is whether that report will be debated. Does the Minister understand that to be the case, or is it not the Government’s intention that it would be debated?

Government Amendment 35 shares many of the provisions that we have set out in Amendment 44, giving a degree of independence that is most welcome, and I thank the Minister for tabling that amendment. Again, if I may seek clarification, in the new clause inserted by Amendment 35, subsection (1) is fairly standard, but subsection (2), which mentions

“staff, accommodation, equipment or other facilities”,

omits any mention of resources, and I wonder if that is intentional. That omission has to be seen together with that in subsection (3), which says:

“The Secretary of State may pay, or make provision for paying, expenses to any member of the TAC in connection with the preparation of advice”.


Again, that does not actually say if there is a limit to the resources or the extent to which those provisions will extend. Clarification there would be most helpful.

Then we come to government Amendments 49 and 50. I welcome the fact that Amendment 49 puts the Trade and Agriculture Commission on a statutory footing; that is something that many of us have held dear and which I have specifically requested during the passage of this Bill and indeed the Agriculture Act, so I thank the Minister warmly for that. I presume that government Amendment 50 is consequential in that regard, so those two amendments are absolutely welcome and I am most grateful to him.

Now I would like to pause and turn to government Amendment 36. It potentially effectively repeals the very existence of the Trade and Agriculture Commission, not just as set out in the provisions that we are debating in this group of amendments as part of the Trade Bill before us today but, as the Member’s explanatory statement says:

“This amendment would empower the Secretary of State to repeal provision relating to the Trade and Agriculture Commission if the Secretary of State’s duty to seek its advice under the Agriculture Act 2020 is repealed.”

17:30

I may be misinterpreting and misconstruing this amendment but, if I take it at face value, I slightly fear that it makes a mockery of the government amendments and others in this group in my name and those of other noble Lords. I press my noble friend: what on earth is the meaning of government Amendment 36? We are coalescing around the amendments which my noble friend has brought before the House today, but they are spoiled by the fact that, as I understand it, a statutory instrument could be brought forward. We know that that does not carry the same level of scrutiny as primary legislation. By the wave of a statutory instrument, the Trade and Agriculture Commission, its role, its function, and its advisory commitment, could be removed. What does Amendment 36 mean?

I look forward to receiving the Minister’s responses. For the moment, I beg to move Amendment 7.

[Lord Grantchester (Lab)]

I thank the noble Baroness, Lady McIntosh, for her introduction to this group of amendments on the Trade and Agriculture Commission. We very much see this as unfinished business from the Agriculture Bill, a not entirely satisfactory outcome to the issue of food standards. A proper recognition of the maintenance of the United Kingdom’s food standards should have been inserted in statute through that Bill rather than just having it as a manifesto commitment. However useful as a mechanism, the TAC cannot block a trade deal that may lead to a lowering of standards. We see this as not entirely good enough, yet the Government are now agreeing that they should, and could, have brought this body into existence at any time, and they are doing it more proactively. With the outcome of the statutory enshrinement of a TAC, together with added improvements through other amendments, we can understand and agree that the non-regression of standards could be said to have been delivered. However, anxieties exist about the Government’s full commitment to the Trade and Agriculture Commission. As a method to monitor food standards and trade deals it is very precarious, but there are many crossovers and references to other amendments and we concede that, in conjunction with those, this is a satisfactory way to proceed at the moment.

Amendment 7, paired with Amendment 44 which introduces a new schedule, in the name of the noble Baroness, Lady McIntosh, and other noble Lords, has many similarities to the discussions in debates during the passage of the Agriculture Bill. If the noble Baroness will forgive me, the amendment would pre-empt the Government’s amendments, to which I will give more detailed attention, as the Government have already signalled that they will agree to put the TAC on a statutory basis in this Bill. On that basis, I will examine their proposals. As the noble Baroness has outlined, the Government’s amendments are far from ideal, in many respects, compared to hers.

Amendment 31 sets up the TAC to be an expert body, with which we are in agreement, but it is rather silent on precise membership recommendations. Will the Minister outline, in his response to these amendments, how far this statutory body will reflect what already exists in its present, rather weak, form, especially regarding membership? During the passage of the Agriculture Bill, many noble Lords thought that that membership should have been extended to contain consumer interests as well as further food and nutrition interests.

Amendment 32 mirrors further discussions on the Agriculture Bill in that full and precise considerations should be shared with the devolved Administrations. The Minister may be able to give fulsome answers to this in his response to the previous amendment on how the present TAC is set up. We would rather answer the question of membership and its extension though Amendment 33, in the name of my noble friend Lord Stevenson. This extends the possibility of trade commissions being set up for any other industries as may become apparent and necessary through other trade deals which the Government may wish to enter into. We do not necessarily see that the agriculture industry should be unique in having its own carve-out in appreciation of the effect on it of trade Bills. I would very much welcome the Minister’s response to that. There could well be opportunities and circumstances in future trade deals where there may be a severe imbalance in their outcome on different industries, with one industry feeling more imperilled than another by the measures brought about by a future trade Bill. We would not wish a balance of benefits for one industry to played against the detriment of another’s sacrifice.

I turn to further specifics in the Government’s proposals. Our concerns begin to mount with Amendment 34, on the commission’s advisory functions. This proposes an immediate restriction to the process, brought in by amendments to the Agriculture Bill, regarding the functions of the Trade and Agriculture Commission. We find it rather alarming that, when the Agriculture Minister was answering for the whole Government during the passage of the Agriculture Bill, he was very much alive to the aspect of human health, and the implication for that of food, yet in another Bill, barely a month later, a Minister from another department wishes to contradict that.

However, I am glad to see that, through those discussions, Amendment 34 now allows the Trade and Agriculture Commission to report directly to Parliament, independent of the process which the Government had previously been reluctant to stray from, by making the TAC report only through the Trade Committees of the Commons and your Lordships’ House. This gives better recognition to its work and the importance that the greatest percentage of the UK’s population places on food standards being maintained, as well as on plant health, the environment and animal welfare.

We also have severe reservations about the Government’s Amendment 36, which repeals the advisory body barely three years after its enactment. That amendment proposes that the TAC’s provision, set up in primary statute, could then be repealed or severely altered by secondary statutory order only, as soon as its third anniversary. This would diminish the TAC and its prime process—being part of the parliamentary scrutiny of Trade Bills—which we thought the Government had agreed. It hardly allows the Trade and Agriculture Commission to consider all the new major trade deals which the Government may wish to enact, in addition to the rollover deals that the UK is inheriting through its previous membership of the EU. It is still unknown when, and at what speed, new international trade agreements with America and Australia could come through. Indeed, the Government could time those negotiations to come to fruition exactly as they were disbanding the TAC. That would be a tremendous mistake.

Having proposed the creation of the TAC on a statutory basis, it should now be allowed to gain experience and expertise, and to be taken seriously in that role. It should be able to undertake further research and investigations into agricultural and trade matters in addition to providing momentary comments on each trade deal that the Government may wish it to advise on. Will the Minister outline how the Government intend the TAC to function in this regard?

We have resisted further amendments to the Government’s clauses, especially to the period of only three years before it could be disbanded, and reserve the option of bringing further amendments, following any replies that the Minister may provide, at Third Reading. It is crucial, as the UK begins to undertake its own trade policy, for these matters to be dealt with appropriately and robustly for many years to come.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Grantchester. I will speak briefly to Amendment 32.

There was a great deal of discussion during the passage of the Agriculture Bill on the importance of the role of the Trade and Agriculture Commission. All who took part will be relieved that the Government have decided to put the TAC on a formal footing, as set out in government Amendment 31. The NFU lobbied heavily for this, was disappointed that the measure was not included in the Agriculture Bill but, like others, is pleased to see it added to the Trade Bill.

I have added my name to Amendment 32, from the noble Lord, Lord Purvis, as it is essential that the devolved Administrations have the opportunity to comment on proposed members of the TAC. It is also vital that those who have the expertise to ensure that the TAC makes informed decisions have a seat on the commission. While the list of areas of expertise in government Amendment 31 does not include the bodies that will provide that expertise, it is implicit that they will represent the views of animal and plant safety experts and the interests of the farming community.

In addition to these very welcome changes, the devolved Administrations must have the opportunity to comment. If they cannot respond within the timeframe given—one month—the Secretary of State may proceed with appointments. This is a reasonable timeframe and should not hold up appointments to, and operation of, the TAC.

I and some of my colleagues are engaged in reviewing a number of statutory instruments from Defra, to ensure that legislation operates effectively after 1 January 2021. It is clear from this legislation that there are very differing views and methods of operating among the devolved Administrations, not least those affected by the Northern Ireland protocol. There is little point in appointing people to the TAC if none of them has the knowledge or ability to represent the views of the devolved Administrations, especially when there are many instances of legislation on animal and crop farming differing between them. This is an important amendment that I hope the Minister will agree to.

Lastly, I share the concerns of the noble Baroness, Lady McIntosh of Pickering, about government Amendment 36, on repealing the Trade and Agriculture Commission. This is extremely worrying and undermines all previous discussions about the commission, both in this Bill and in the Agriculture Bill, and I look forward to reassurance on this point from the Minister.

17:45

[Baroness Henig (Lab)]

My Lords, I am very pleased to follow the noble Baroness, Lady Bakewell of Hardington Mandeville. I will speak to Amendments 7 and 44, and in doing so I welcome government Amendments 31 and 34 in this group. I and other co-signatories have been urging the Government to move in this direction for a considerable time, and I am very pleased to see this commitment to the establishment of a permanent Trade and Agriculture Commission.

Like previous speakers, I find Amendment 36 rather concerning. Can the Minister explain why it is included? It rather casts a large shadow over the Government’s intentions in this area, and I look forward to hearing what the rationale is for this clause.

Leaving aside Amendment 36, the Government’s new clauses are a tentative step forward in establishing the Trade and Agriculture Commission. It is, however, only a first step. What needs to follow is for the commission to establish itself as a credible body in terms of its membership, its leadership credentials and the impartiality and quality of its advice. I hope that the Minister does not mind me commenting that, thus far, too many individuals appointed to trade positions by the Department for International Trade are as likely to be chums and cronies of Ministers, or former Conservative politicians looking for a cosy berth, as to be independent and well-respected specialists on trade and agricultural issues.

This new body will only be successful to the extent that those appointed to it have, between them, a wide range of expertise and are well regarded in their fields for fully understanding the relevant issues in a non-partisan way. I agree, therefore, with the noble Baroness, Lady McIntosh of Pickering, that the appointment of commission members should be subject to parliamentary scrutiny and approval.

There will be many important roles for this new commission. One will clearly be to give advice on the best way to uphold existing British food and animal welfare standards and to look at the protection of environmental and plant health. Another, I have no doubt, will be to act as an important champion of British agriculture, which would be very welcome. If it is possible for the commission to extend its scope to look at human rights and employment issues, I would welcome that.

Another role for the commission would be to consider and report on the impact of pending trade deals, which are likely to contain provisions put forward by trade competitors looking to access British markets and to undercut British product and food standards. One of the first agreements that members of this commission will need to consider carefully is the CPTPP, to which the Government have already announced they wish to accede. That would raise significant issues about food and agriculture standards, and about regulations, which would differ considerably from those by which farmers, manufacturers and traders are currently bound.

That is why it is so important that the members of this commission are highly respected and well-regarded experts in their fields: their advice could impact heavily on the future livelihoods and businesses of large numbers of people in many sectors of our economy. Their reports on potential trade deals should be of value not just to the Minister but to Parliament too, in the form, as we have heard, of committees in the Lords and Commons whose duties it is to scrutinise deals. The noble Lord, Lord Goldsmith, mentioned this, I think, in an earlier debate.

There is a wider role, that urgently needs to be played, to which I hope that members of this new commission might be able to contribute significantly, namely to outline to the British public what the Government’s trade strategy is. Is it to do deals with any willing partner? Are there preferred options, and if so on what basis are they preferred? Why do we seek to join CPTPP, with its distinct set of trade regulations, while wanting to have nothing to do with European regulations? Are we happy to conclude a trade deal with China? I got no answer to that question when I raised it some weeks ago.

In addition to articulating a trade strategy, perhaps this commission could also help to clarify which sections of British commerce and agriculture we are seeking to prioritise in trade deals. Which sectors will be deemed less important? What will be the core principles of British trade policy? They are, at present, difficult to discern. It seems that safeguarding jobs in fishing—relatively few though they are—is at the moment considered more important than jobs in the automobile or chemicals industry or in agriculture. Those selling fish to Europe seem to be prioritised above those selling lamb to Europe. Does this make commercial and economic sense? These are the sort of issues and choices our new commission members will need to look at as a matter of urgency. After all, a new start requires a clear strategy that we can all get behind and support. Mobilising energies and support on a wide basis behind our trade strategies will be crucial to success in this area.

I welcome most of the Government’s amendments in this group as far as they go, but I strongly hope that the new Trade and Agriculture Commission will be able to help in articulating a set of coherent trade and agricultural priorities that we in Parliament, and the wider public, will be happy to support.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Henig, and to hear not only her very cogent arguments but also her questions. I do hope the Minister will answer them, particularly on trade with China.

I support Amendments 7 and 44 in the name of the noble Baroness, Lady McIntosh. It is obvious immediately, from the way she laid things out at the very beginning, that the Government have done a little but not enough. It is a pleasure for me to speak in this group and have a tiny part in the Government’s compromise amendments. Although they are welcome, they just do not do the job. Why do they not guarantee the commission its independence? The weakness is exposed when compared with the non-government amendments in this group. While I would like to call a win a win, I do not think we really have a win here. I am worried that this welcome but small compromise will actually create nothing more than a talking shop, which can simply be ignored by the Government.

The Government have put the Trade and Agriculture Commission on a statutory footing, with Amendments 49 and 50, given it a degree of permanency and have even seemed to incorporate what we were pushing for in that it should have its own staff and facilities, but then government Amendment 36 throws all that out. A Secretary of State can ditch the whole thing with a statutory instrument. How is that sticking to a promise about making this a body that can properly do the job?

I hope that the Minister will think again before Third Reading, so that we do not have to compromise endlessly with a body that is too feeble and inconsequential to do the job.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb. I am a signatory to Amendments 7 and 44, and I congratulate the noble Baroness, Lady McIntosh of Pickering, for her very accurate, extensive and comprehensive exposition of those amendments, as well as her critique of the government amendments in this group. While we welcome the establishment of the Trade and Agriculture Commission on a permanent basis in statute, there are certain distances yet to come. Obviously, like other noble Lords, I question the content, the purpose and remit of Amendment 36, which seems to nullify the impact of the Trade and Agriculture Commission. Like the noble Baronesses, Lady Jones of Moulsecoomb, Lady Henig and Lady McIntosh of Pickering, I ask the Minister to outline the purpose and remit to see whether he can provide us with any assurances that it is not simply there to negative what is already in existence by way of secondary legislation or in a statutory instrument.

Amendment 7 provides 42 days for parliamentary scrutiny, which is better because it allows adequate time for that scrutiny to take place. A new schedule outlined in Amendment 44 provides for a Trade and Agriculture Commission with greater independence to link in with the whole agricultural area. We should always remember that those involved in the farming industry need this independent body to advise on trade matters, agricultural and food standards, and environmental standards. Like other noble Lords, I would like to see references, and hope the Minister could provide us with some detail about the need for food safety, as well as for employment and human rights. Those are equally important requirements.

In submissions that we have received over the last few days, Greener UK has lobbied along with the farming organisations for the Trade and Agriculture Commission. Given that the UK’s food standards are high on the negotiating priorities of many of our prospective trading partners, stakeholder input and scrutiny of trade deals in relation to agri-food standards, it is important that the UK delivers the public’s expectation to maintain high standards. It has been recognised that the Government have taken a step in the right direction by putting the Trade and Agriculture Commission on a statutory footing through the various government amendments, but again I question Amendment 36. I thank the Minister for the meeting he had, on a cross-party basis, with noble Lords on the various issues to do with the Trade and Agriculture Commission, but I believe that the Government could go a little further. Perhaps the Minister could specify if there are any additional details to be provided at Third Reading. The new schedule proposed in our Amendment 44 underpins the need for the independence of the TAC.

Will the Minister spell out how the Trade and Agriculture Commission will be required to produce an annual report with recommendations on how to improve food import standards and how to incorporate changes in domestic standards into existing and future trade deals? How will the Secretary of State be required to take all these recommendations into account when setting trade negotiating objectives, and how will the Government issue a response to the recommendations? Will the Minister provide some assurances in that regard and will he be bringing something forward at Third Reading?

We also note that the TAC’s scope in the government amendment is limited to agricultural goods and does not address wider scrutiny of regulations and standards pertaining to other goods and services that may be impacted by trade deals, such as chemicals, which the amendment of the noble Lord, Lord Stevenson of Balmacara, makes provision for. This, from memory, has already been referred to by the noble Lord, Lord Grantchester, in his submission.

I am very happy to support Amendments 7 and 44. I am pleased that the Trade and Agriculture Commission will be put on a permanent basis, but I plead with the Government not to negative the good work by having Amendment 36, and ask the Minister not to press that.

18:00

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I wish to speak primarily on Amendment 7 in the name of the noble Baroness, Lady McIntosh, and other noble Lords. I also support Amendment 32 on the need for consent from devolved Ministers. In my Second Reading speech on the Agriculture Bill, I welcomed the setting up of the Trade and Agriculture Commission, particularly the appointment of the president of the Farmers’ Union of Wales as a member. I played a small part in the founding of the union 65 years ago—rather a long time.

I received an excellent briefing note from the NFU, and I hope that the Minister will give the assurances that it seeks in that note. The establishment of the commission as a statutory board is important and gives it a degree of permanence, and I welcome the thrust of the government amendments. The NFU has raised the issue of the range of necessary expertise required of its members. It is the word “expertise” on which we need further reassurance. I emphasise the obvious point that agricultural expertise is a vital requirement. I need not say anything further on that.

It also raises the issue of ensuring that devolved interests are properly catered for. I hope that the Government will accept Amendment 32. It was around 1 March 1977 when agricultural responsibility in Wales was transferred from the Government, of which I was a Member, to the Secretary of State for Wales. I tried to anticipate how experience in handling agricultural matters outside Whitehall would be important for a future devolved Government in Wales. Regrettably, this important step had to wait until 1999, but this is one example of the building bricks that were necessary to be transferred and that were so important to the future devolved Administration—hence it is vital that they are properly consulted.

When I was the Welsh Secretary, I also ensured that, when Brussels was concerned with Welsh interests, I attended with the Whitehall Minister of Agriculture. I would be particularly pleased to hear more about the scope of work intended for the commission. This should be spelled out before we leave this important issue.

Lastly, I believe that reassurance is needed about the intention of the Government to review the TAC every three years. It is vital to have wide consultations with relevant interests at this stage. This is a very important body. I welcome it and, in particular, its extended remit and degree of permanence. It will be there to give the views of agriculture to the Government of the day. I support the amendment.

[The Earl of Caithness (Con)]

My Lords, I had very much hoped to give three loud cheers to the Government for putting down this amendment but, at the moment, my noble friend has one and a half cheers. But I am extremely grateful to the Government for at least putting down this amendment.

A number of points have been raised, and the point which struck home was that made by the noble Baroness, Lady Ritchie of Downpatrick, who said that public expectation is high for the TAC. She is absolutely right. I fear that the TAC, as proposed in the amendments before us, will turn out to be a peely-wally TAC. As a result, it will give the Minister every opportunity to use the proposed new clause in Amendment 36 to repeal it by statutory instrument. That will lead to a huge loss of public confidence in the Government and in agriculture, which has been a matter of so much debate.

We brought the Government to this state, kicking and screaming, through the hard work on the Agriculture Bill. Could my noble friend tell me what membership he envisages for this commission? The point has been made that it is a bit vague, but unless the commission has experts and access to experts, it will not be able to report to the high standard that we hoped and expected of it. Can the commission do work other than looking at trade deals once they have been negotiated? Will there be a lull? If a negotiation is going on, the commission can look at it, and that might bring up other bits of work that it ought to do for future trade deals. But the Government could turn around and say to the commission that because there is no trade deal under negotiation, sorry, your job is finished. Could my noble friend be more specific on the workload he expects of the TAC?

The next point I want to raise was also raised by my noble friend Lady McIntosh when she introduced Amendment 7. It is on the wording of the proposed new subsection (2)(4A)(a) in Amendment 34, which refers to “human life or health”. What happens around food security that affects people’s health? Will it be covered by the work of the commission? When we were discussing the Agriculture Bill, the quality of food that would be produced by and imported to this country was a huge concern. It affects human health and, if the TAC is not allowed to look at human health, will aspects of that be omitted?

My last point concerns the shortness of the TAC’s life. Is my noble friend convinced that he will get the right quality of people to serve on it, given that it is an intermittent body, with every likelihood that a Minister could wake up one morning and lay a statutory instrument for its demise? Before a Government decision is made and such a statutory instrument is laid, will my noble friend confirm that he will consult all relevant interested parties and publish their advice? If that is not the case, I fear that the TAC will not produce the quality of reports that we want and will not continue in existence for as long as many noble Lords have anticipated. I hope that my noble friend can change my one and a half cheers into three cheers.

[Baroness Boycott (CB)]

My Lords, as always, it is a great pleasure to follow the noble Earl, Lord Caithness. I greatly agree with what he said and want to amplify one of his points. I also support Amendment 7, but do not think that it is finished business yet.

When the Agriculture Bill passed through Parliament, many noble Lords advocated amendments about the UK’s food standards: that they should be written into law to protect us from lower food standards in the future. This was backed massively by the public, as the noble Earl, Lord Caithness, and many other noble Lords have said. Some 2.6 million people signed a number of related petitions, and 260,000 people took the trouble to write to their MP because they were concerned about this. The Government have instead opted to put the Trade and Agriculture Commission on to a statutory footing, extending its lifespan and requiring it to look after these important matters. Is this enough? I think not.

We know that trade deals can put huge pressure on food standards and lead to the import of food produced to lower—or indeed higher—standards. Evidence shows that a number of prospective future trading partners want the UK to lower its food and animal welfare standards and to allow the import of currently banned products, including the well-known examples of chlorine chicken and hormone beef as well as others such as products containing residue of pesticides.

The TAC was formed by the Government in response to consumer and farming concerns. Its main aim is to consider the development of the Government’s trade policy, to reflect consumer and developing world interests and to consider how we engage with the WTO on animal welfare. However, as it stands, it will relate only ever to broad farming, food, environmental and animal welfare concerns. Food safety is considered, but not public health.

However, we now have it on a statutory footing and have expanded proposals for membership to include experts on trade, animal and plant health, and animal welfare. This is welcome but not enough. The Government’s amendment categorically excludes the TAC from considering the impact of agri-food trade on human health. Its reference to what the TAC reports on states that, in preparing the report for Parliament, the Secretary of State for International Trade must

“request advice from the Trade and Agriculture Commission … except insofar as they relate to human life or health”.

If the TAC is limited to thinking about health very narrowly, within the confines of a sanitary or phytosanitary source, wider considerations such as impacts to diets, antimicrobial resistance or pesticide residues will be lost. If it is not the role of the TAC to consider this, who will consider it? We all know the long impact of bad diets—those heavy in sugar, fats and salts. We have seen this as Covid has torn through our communities this year. We legislate very well and effectively that food will not kill you today, but we have nothing on food that will kill you tomorrow or, more to the point, in your children’s tomorrows.

The Alliance to Save Our Antibiotics published a report just last week showing how future trading partners for the UK are giving livestock antibiotics to make them grow faster, a practice which has rightly been illegal in the UK and across the EU since 2006. When I raised this in this House the other day, the Minister was emphatic that we have good antibiotic rulings. However, in 2022 the EU will ban the importation of meat and dairy produced in this way but the UK Government have not yet committed to this. This new report shows that, overall, farm antibiotic use per animal is about five times higher in the US and Canada compared with us, with use in United States cattle being about seven times higher. Antibiotic use per animal in Australian poultry is 16 times higher than ours. These are very serious facts.

Where is public health? Somewhere between the Agriculture Bill, the Trade Bill and the TAC. Why is it not in a leading role as we go forward in these crucial debates? I understand, although I might not agree, why the Government chose not to put public health right at the top of the Agriculture Bill as a public good. I know it is impossible to recompense people for growing food which has a monetary value, but I do not feel reassured about where this is going to be. I am also not reassured that it will be left in the hands of the Food Standards Agency, much as I admire it, because I do not understand its relationship to the Trade and Agriculture Commission. At the moment we do not have a public health expert on that body. This is slithering through the cracks; if we do not catch it now, in future it could have very serious consequences for us all.

[Lord Curry of Kirkharle (CB) [V]]

My Lords, my interests are as recorded in the register. It is a great honour and privilege to follow my noble friend Lady Boycott, whose contributions are always thought-provoking and based on her immense knowledge of food and agriculture. I thank the noble Baroness, Lady McIntosh of Pickering, for her amendments and continuing commitment to the Trade and Agriculture Commission’s purpose, in the Agriculture Bill and this Bill.

I will speak to Amendments 31, 34, 35 and 36 in the name of the noble Lord, Lord Grimstone of Boscobel. I very much welcome these amendments and congratulate the Government on introducing them into the Bill. The future of the Trade and Agriculture Commission was the subject, as has already been mentioned this afternoon, of much debate on the Agriculture Bill. The amendments to that Bill—Clause 42, which the Government finally introduced under pressure—complement the amendments we are considering this afternoon.

18:15

When I stated that I welcome these amendments, it is not just I who is delighted to see them but hundreds of stakeholder organisations, and, as my noble friend Lady Boycott mentioned, a significant proportion of the British public demonstrated how concerned they were about this issue. All were concerned about the possibility of imported food being allowed to enter the UK which was produced to lower production standards than our domestic standards—not that ours are perfect, but they are among the highest in the world.

To give a bit of background, I chaired the Meat and Livestock Commission during the 1990s, when we had one food scare after another—E. coli, salmonella and BSE, to name a few—and consumer confidence in our food was at an all-time low. The Food Standards Agency was established at the end of that decade. Since then, we have slowly but surely restored public confidence through hard work and considerable investment. It has been hard won. As an example of recent activity, again mentioned by my noble friend Lady Boycott, we have reduced our antibiotic usage in farm animals by almost 50% in the past five years—a significant achievement—and the farming and food industry is very committed to continuing on this vital journey of continually improving our standards.

The Trade and Agriculture Commission’s role is not in my view a protectionist measure to support UK agriculture. It is a measure to ensure UK consumers continue to enjoy food produced to high standards— including in animal welfare—that is safe and nutritious but also allows UK producers to compete on a level playing field not just in our home market but, hopefully, increasingly in export markets too. Importantly, it is also evidence of the Government’s ambition to influence global trading standards.

I am very grateful to the Minister for his willingness to discuss this amendment and these issues. I thank him for his time. I am interested in two elements of these amendments, both of which have been referred to in one way or another this afternoon, which I hope he will be able to address.

The first is the process of appointing members to the commission. I would appreciate an explanation of the qualities and expertise the Secretary of State will seek to identify in potential candidates, bearing in mind the complexity of the task and the technical knowledge that will be needed to be able to evaluate the terms of trade deals. For example, I would have thought that an understanding of the technical aspects of food production will be a necessary requirement. Having established the TAC, the Government need to ensure that the range of knowledge and expertise in it allows them to broaden its role in providing advice on other issues if required.

The second is a concern that the noble Baroness, Lady Boycott, has already expressed very eloquently, and I now express it directly to the Minister. I refer to the exclusion of human life and health from the remit of the TAC—a matter also referred to by the noble Earl, Lord Caithness. There is a deep worry among many NGOs about this exclusion and the reasons for it. This concern relates not only to food safety and production standards but, importantly, to the nutritional standards of imported food. While we strive to address food-related diseases as a strategic priority in this country, as well as the impact of obesity on the nation’s health, excluding those things from the TAC’s remit seems odd, particularly as imported processed food products could be a serious contributor to, and a negative influence on, health.

I would also be very interested in hearing the Minister’s response to a number of queries about Amendment 36. It would be helpful if he could explain the reasons for the various issues that I have raised and, in particular, if he would reconsider the membership of the TAC as far as human life and health are concerned. I thank the Minister once again for his openness.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Lord. It is clear that the government amendments the Minister is bringing forward today have had a long gestation period—over many years—and the noble Lord, Lord Curry, played a significant role in developing the higher standards which we now take for granted in many respects but which we cannot take for granted in our trading relationships. We still need the existing level of protection.

I commend noble Lords who have shown great endurance and persistence and, ultimately, a degree of success in their work. Among them, I include very much my noble friend Lady Bakewell. Like her, I feel that, having sat for many hours on the trade Bills and the Agriculture Bill, it is nice to see, finally, the Government accepting and then acting on a case that has been made powerfully. In that regard, I welcome the way in which the Minister brought forward the amendments and his openness in discussing them.

He will be aware of the response that I and my noble friend gave, which is reflected in our amendment. My noble friend outlined that in clear terms, and I will simply refer to it before I close. However, before doing so, I want to say that I agree with the point made by the noble Lord, Lord Grantchester, about the motives behind the Government putting this advisory body, but not others, on a statutory footing. We know that that is probably because of the strong campaigning that took place, and that is to the credit of the campaigners, who pressed hard for it. However, the Government have been slightly coy about saying why the agriculture advisory group will be put on a statutory footing but not the trade advisory groups that cover key sectors of the British economy: agri-food; automotive, aerospace and marine; British manufactured and consumer goods, telecoms and technology; chemicals; life sciences; the creative industries; investment; transport services; professional advisory services; and financial services. All those areas are covered by trade advisory groups. What interaction will there be when the trade agreement is being prepared but before it is laid before Parliament under the CRaG process? Why, uniquely, does a report on the elements in Section 42 of the Agriculture Act 2020 have to be received from the Trade and Agriculture Commission but not from the other trade advisory groups?

If the intention behind this is, as the Minister will surely say, to enhance scrutiny, how will we know the views of the trade advisory groups for those other sectors of the economy at exactly the same time as the report from the Trade and Agriculture Commission is presented to Parliament? Perhaps the Minister could make that clear. The situation could be resolved quite straightforwardly: he could state at the Dispatch Box that the Government intend to make sure that the other trade advisory groups are able to submit, and we are able to look at, their views on the impact assessments of an agreement.

I hope that the amendment eloquently outlined by my noble friend does not fall foul of the castigatory remarks from the Minister that my amendment received on the last occasion. In this amendment, I have simply used the Government’s wording. I quite liked the wording of their amendment to the internal market Bill—consulting the devolved authorities on appointments to the office of the internal market. In fact, I liked it so much that I thought it should be used in this Bill too. If the Government appoint members of an advisory body for internal United Kingdom trade and consult the devolved authorities, they should also consult the devolved Administrations when appointing members of an external trade advisory body. That would be quite straightforward, and for the Minister to accept that quickly when he winds up at the Dispatch Box would not create any great problems.

My wider question on the period of three years for the life of the Trade and Agriculture Commission is a good one to ask, as that period slightly jars with the five-year period in this Bill for the regulation-making powers. We have the slightly odd situation whereby, under the regulation-making powers in this legislation, the Government have five years but the Trade and Agriculture Commission has only three. Why there is that disjoint, I simply do not know. It would make sense if, at the very least, the lifetime of the regulation-making powers was the same as that of the Trade and Agriculture Commission.

The amendments on consultation should be straightforward. I am not being facetious but I hope the Minister can provide reassurance on the Government’s intention to consult before the appointments are made. I am not sure whether the amendment in my name and that of my noble friend will allow the noble Earl to have two or two and a half cheers. I think that they enhance this. I am grateful to him for allowing me to explain to my noble friend Lord Fox what peely-wally means. I hope that, with these amendments, the government amendments will be less peely-wally and that maybe there will be an improvement.

[Lord Grimstone of Boscobel (Con)]

My Lords, this group consists of government amendments, together with amendments from my noble friend Lady McIntosh of Pickering and the noble Lords, Lord Stevenson of Balmacara and Lord Purvis of Tweed. I will try to set a good example by keeping my comments tight and to the point, and I will of course write to noble Lords whose comments I do not do justice to in my response. I am convinced that one thing I have learned in taking this Bill through your Lordships’ House is that it is not possible to please all the people all the time in relation to the contents of the Bill.

I turn, first, to the amendments in the name of my noble friend Lady McIntosh. Although their purpose and intent are similar to those underpinning the government amendments before your Lordships—to ensure that high standards of imports into the UK are maintained—my noble friend’s amendments go further. They would create a body responsible for setting criteria for assessing whether provisions in trade agreements on UK imports meet or exceed domestic standards on a very wide range of issues. This would, as a result, set restrictions on what goods could be imported under trade agreements.

It is not appropriate for the UK to impose our standards on other countries and prohibit imports of goods that do not meet our standards where there is no basis to do so. Not only could doing so put us in breach of our WTO obligations but, as we spoke about in Committee on a similar amendment, such action has the potential to harm the economies of developing countries and some of the poorest people in society, and to increase protectionism.

The amendment is unnecessary as the standards that it seeks to protect are already enshrined in domestic statute and the Government will uphold them. Any changes to existing standards would, of course, require new legislation to be scrutinised by Parliament. I believe that the Government have taken decisive action to uphold our commitments to high standards. Extending the remit of the TAC to areas such as human rights would run the risk of duplicating the functions of trusted bodies such as the Equality and Human Rights Commission. I am sure that that is not something my noble friend would wish.

Similarly, my noble friend’s amendments apply to all trade agreements, including continuity agreements. Instead, the TAC should focus on only new free trade agreements and agreements signed with continuity partners from 2023 onwards. The UK’s continuity FTAs, as I have said previously, roll over existing EU arrangements that we now wish to hold on a bilateral basis. Those agreements were scrutinised under EU scrutiny procedures and simply replicate existing EU trade agreements, with necessary adjustments to reflect the UK context.

The Government have listened carefully to the concerns of the House with regard to independent scrutiny of FTAs. I am very pleased to bring forward Amendments 31, 34, 35, 36, 49 and 50, which will put the Trade and Agriculture Commission on a statutory footing. This step is integral to boost scrutiny of our new free trade agreements as we move on from continuity.

The current TAC had a different function. It was established as an independent advisory board in July 2020 to advise and inform the Government on their future trade policy. It aims to ensure that animal welfare and environmental standards in food production are not undermined, that consumer and developing country interests are represented and that new export opportunities are secured for producers in all parts of the UK. The amendments today will not impact the role of the current TAC, which will still produce a report by February 2021. I put on record that the Government are thankful for the commitment, time, investment and hard work that current TAC members and representatives of its working groups have put in, and we commend the success it has had to date. We believe that the action we are now taking to put the TAC on to a statutory footing will be an important development in boosting the scrutiny of the Government’s trade policy.

Amendment 34 places the Secretary of State under a duty to seek advice from the TAC on matters set out in Section 42 of the Agriculture Act 2020, excluding human life and health—I know that this point is of concern to a number of noble Lords; I will come back to it in a moment—in preparing a report to Parliament to accompany relevant free trade agreements laid under the Constitutional Reform and Governance Act procedures. I particularly reassure the noble Lord, Lord Grantchester, that the omission of human health from the remit of the TAC does not in any way diminish the importance that we will attach to it. It is just that, when we looked at the composition of the TAC and its range of duties, it seemed that expert advice relevant to human life and health would best be sourced separately from other, more expert bodies in that field. The report under the Agriculture Act will include both advice that comes from the TAC and advice that comes from other relevant bodies in relation to human life and health. The duty will be exercised, but not through the TAC.

Section 42 of the Agriculture Act places a duty on the Secretary of State to report on whether the measures in certain future FTAs applicable to trade in agricultural products are consistent with maintaining UK domestic statutory protections for human, animal or plant life or health, animal welfare and the environment. The TAC advice will inform that report. It will be laid separately before Parliament as an independent report, but it will not be the totality of the report under the Act.

The role of the statutory TAC will therefore represent an evolution of the current TAC. The statutory TAC’s purpose—to provide advice under Section 42 of the Agriculture Act—is set out in Amendment 31, and the TAC advice will ensure independent expert scrutiny of new free trade agreements. The request for advice by the Secretary of State and any guidelines will be published, and advice supplied by the TAC will be laid before Parliament. That is the role of the TAC. It is not a standing body producing advisory reports, as one might have deduced from the existing TAC; it is an independent expert body scrutinising new free trade agreements as and when they come along.

Amendment 31 creates a power for the Secretary of State to appoint members and, of course, a duty to have regard to the desirability of appointing members with expertise specific to the role of the TAC. The Government will work to ascertain the range of skills and knowledge required for the commission, noting that additional skills and expertise might be required and that the list in the amendment is not, of course, exclusive. The TAC must have those skills but the Secretary of State is free to decide that it might need additional skills other than those on the list.

I can absolutely affirm to your Lordships that the Secretary of State will make appointments in line with all the usual public law principles applicable to all ministerial decision-making and within the confines of the new statutory provisions. These will be direct appointments and will follow established protocols, demonstrating the department’s commitment to a robust process and eliminating any conflicts of interest. The steps required as part of this process will be reflected in the TAC’s terms of reference.

As a non-incorporated expert committee—I might just dwell on those words for a moment—the commission will provide the Government with independent external advice to deliver additional scrutiny of free trade agreements. It will comprise technical experts who can analyse complex treaty text and provide robust and balanced advice to Parliaments. Members of the TAC will be chosen to have knowledge of standards across the whole of the UK. To my noble friend Lady McIntosh, I say that what we are establishing is not a body with a CEO that produces annual reports; it is a group of experts who have a specified task to do, which is put in front of them every time a new FTA comes down the tracks.

Amendment 34 will require the TAC to be reviewed every three years. Of course, I can see from this debate that there is perhaps a misunderstanding among noble Lords about what exactly that means. In my experience, it is good practice for these bodies to be reviewed after a period of time, and three years is not an uncommon period. However, it in no way means that the body will be wound up after that time, because the TAC must stay in place unless the Government bring forward secondary legislation via the affirmative procedure to repeal the TAC’s provisions. There is a review every three years, but only if that review comes forward with recommendations that both Houses of Parliament accept can the TAC be discontinued.

I want completely to reassure noble Lords about the consequences of Amendment 36, which, I fear, has been misunderstood by Members. Amendment 36 is entirely dependent on Amendment 34. Only if the Amendment 34 process every three years resulted in a decision by Parliament that the TAC should be wound up would the provisions of Amendment 36 come into effect to pass the necessary statutory instruments to repeal the TAC. Amendment 36 does not stand alone so it could not be used for the Secretary of State to wind up the TAC on a whim; that would be a ludicrous proposition. I apologise if noble Lords have found the drafting of the amendment confusing in that respect, but I can give them complete reassurance on that matter.

I believe that the role of the statutory TAC complements other measures that the Government have taken to further enhance scrutiny of new FTAs and ensure that the views of the agricultural sector are taken into account during the negotiations process. Indeed, this will not be the only independent scrutiny that our new free trade agreement will receive: the International Trade Committee in the other place and our own IAC will also, of course, provide critical scrutiny and advice on our negotiated deals, just as this took place with the Japan agreement. I reassure noble Lords that the Government remain committed to listening to and engaging with consumers, farmers and industry in negotiating our free trade agreements, and we value the input that they provide in this process.

It is important to remember that our expert trade and advisory groups, representing businesses, consumers and civil society, already provide advice during free trade agreement negotiations—this is an essential difference from the TAC—and we will not seek to duplicate that important work. In particular, there is a dedicated agri-food trade advisory group, in which the agri-foods sector is represented; it does an excellent job of representing that sector.

I believe that these amendments will help the UK safeguard our current standards of agricultural products, put British farming at the heart of our trade policy and ensure that our agricultural sector is among the most competitive and innovative in the world. I hope that noble Lords will be able to support the amendments brought forward by the Government.

On the amendment tabled by the noble Lord, Lord Purvis of Tweed, as I have already mentioned, the TAC will be an expert committee; members will be independent experts, appointed as individuals, not as representatives of academia, business or other organisations for which many of them may work. As I said before, the Secretary of State will make appointments in line with established protocols, following the usual public law principles applicable to all ministerial decision-making. The statutory TAC will represent an evolution of the current TAC to reflect its purpose as set out in Amendment 33. Of course, the membership will be considered accordingly. We are committed to ensuring that only expertise will drive the appointment of new members. It is critical for the success of the TAC that the advice is independent and underpinned by the expertise listed in the amendment.

As I have said before, the central purpose of the TAC is to improve scrutiny of FTAs prior to their ratification. Therefore, as I said earlier, it is related to a reserved matter: the ratification of free trade agreements. As such, the TAC amendment does not engage the legislative consent process under the Sewel convention. While we acknowledge, of course, that the work of the TAC will touch on the devolved matter of agriculture, this does not alter the fact that its function relates to a reserved matter.

However, the UK Government recognise that, as agriculture is a devolved matter, the devolved Administrations, of course, have a legitimate interest in the TAC’s work. Therefore, the Minister of State for Trade Policy has written to them, seeking their views on the statutory TAC, and he will discuss it with them at the ministerial forum for trade later this week. I hope that noble Lords understand that the commitments that we have made, when pulled together, create a further commitment to produce a report on standards in FTAs in relation to specific concerns, as outlined in Section 42 of the Agriculture Act. Through our amendment, we are proposing to put the Trade and Agriculture Commission on a statutory footing—I sense that noble Lords welcome this—and to provide advice in relation to this. I therefore ask my noble friend to withdraw Amendment 7.

[The Deputy Speaker (Lord Alderdice) (LD)]

I have received a request to ask a short question from the noble Lord, Lord Grantchester, so I call the noble Lord to ask a short question of elucidation.

[Lord Grantchester (Lab)]

I thank the Minister for his extensive explanations behind his amendments, although, obviously, I will look carefully at Hansard later, and we may further follow up aspects of this. I would like to draw out from him one further explanation. I listened carefully to his explanations, and I concede that due process would take place before Amendment 36 was invoked and after Amendment 34 had been implemented. But what could be the circumstances in which a review would give rise to an abandonment of the TAC process in future trade assessments?

18:45

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that question. Pragmatically, the most likely circumstance would be if a bigger and better idea came along. For a Trade Minister to come to this House or the other place and say they were winding up the TAC and nothing was being put in its place would lead to a difficult debate. This is, perhaps, part of the whole process. We are new to trade agreements, the way we are handling them is evolving, and matters may evolve with that.

I stress again that there is nothing Machiavellian about the three-year review point. It is certainly not Machiavellian to require both Houses to agree to any winding up of the TAC. Other noble Lords will be more expert than I am on this, but I would be surprised if either our House or the other place resolved to wind up the TAC unless something bigger and better was being put in its place.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am grateful to all who have spoken in this debate and in particular to the Minister for his response to the concerns that have been raised. His conclusion backs ours; nearly everybody who has spoken has spoken in favour of the permanency, beyond an initial three or six years, of the TAC. He himself just accepted that in his last few words.

To come back to the basic points: we all agree it is excellent that the government amendments put the TAC on a statutory footing. In the words of my noble friend Lady Jones of Moulsecoomb, that goes a little way but not far enough towards independence.

I am not sure I got an answer on which resources will be allocated. I realise it is not our place, in this House, to say that, but we did not get an answer on it. On the question of permanence, I will revert to that.

The noble Baroness, Lady Henig, identified a gap in all the amendments—government amendments and Amendments 7 and 44—in a lack of understanding about what government strategy for trade will be. I agree with her on that. Why would we want to tie ourselves to all these commitments, which, inevitably, a CPTPP free trade agreement would involve, when we are tying ourselves up in knots regarding those with the EU? It also begs the question of why we have committed ourselves to a strict regime on state aid with the Japan free trade agreement, which goes further than what we are currently willing to agree to in a future trade agreement with the EU.

The noble Lord, Lord Grantchester, put his finger on the point in his last question, but also on the fact that the matter of standards is unfinished business, which we have carried over from the Agriculture Act. I join other noble Lords in paying tribute to all the farm organisations—the NFU, the TFA, the CLA and all the green organisations, which have been united with the public. The noble Baroness, Lady Boycott, mentioned the 1 million signatures we had that gave rise to amendments in this group, which were previously tabled during the passage of the Agriculture Bill.

My noble friend Lord Caithness was right to stop at one and a half cheers. Both he and the noble Lord, Lord Curry of Kirkharle, have identified the need to know more about what the membership of the Trade and Agriculture Commission will be going forward Although my noble friend the Minister has put a little more meat on the bones, it is still vague.

I did not understand entirely whether the relevant committee, especially in the Commons, will be entitled to do a public appointment hearing regarding the future chair, or the reappointment of the current chair, of the TAC. My noble friend may have misunderstood the role of human rights issues and employment law in this regard. These are now standard in agreements before the World Trade Organization and international agreements, so I am slightly surprised that he thought I was seeking to undermine the Equality and Human Rights Commission in this country, which of course was not my intention.

On independence, I am not sure that we are 100% where we should be, certainly on resources. It would have been helpful to have further clarification. I have made my point about how appointments should be scrutinised by the relevant committee and I stand by that. I am sorry if I did not hear my noble friend confirm that. Also, when my noble friend says that reports on agreements will be “laid before Parliament”, I presume he means that they will be debated and voted on in the usual way.

It would be more helpful than anything else if my noble friend would withdraw government Amendment 36 at this stage. I do not think that it has been drafted clearly and it does not sum up the debate that we have heard on this group. What compounds this is that, on a closer reading of government Amendment 34 on which my noble friend has relied in summing up his arguments, the review to which he has referred, in subsection (4) of government Amendment 34, allows that, in subsection (6B) of proposed new Section 42 of the Agriculture Act:

“The Secretary of State may by regulations repeal subsections (4A), (4B) and (6A), and amend subsection (5) to remove reference to advice requested in accordance with subsection (4A)”


That of course is the very advice that is the subject of this group of amendments: requesting advice from the Trade and Agriculture Commission on the matters referred to in subsection (2) of the new clause

“except insofar as they relate to human life or health.”

I also did not quite understand what the Minister said in summing up how the Government will report. He said that the TAC will report on so much as regards advice, but not on public health. He did not outline how or when that duty will be exercised in terms of future trade agreements, which body would be doing those, and to whom that advice would be tendered if it is not going to be tendered by the Trade and Agriculture Commission.

I think that the will of the House has been expressed strongly this evening that public health and food security should continue to be included. I do not know whether I have an opportunity to revert to my noble friend to answer those two points before I decide whether to withdraw my Amendment 7.

[The Deputy Speaker (Lord Alderdice) (LD)]

Is the noble Baroness withdrawing her amendment? I cannot hear a response.

[Baroness McIntosh of Pickering (Con) [V]]

I am so sorry. I am seeking clarification as to whether it is the Government’s intention to withdraw Amendment 36 this evening.

[Viscount Younger of Leckie (Con)]

Perhaps I can help my noble friend. The Minister is happy with what he has said, and I urge my noble friend to draw her remarks to a close.

[Baroness McIntosh of Pickering (Con) [V]]

I wish to press my amendment.

Amendment 7 disagreed.

[The Deputy Speaker (Lord Alderdice) (LD)]

My Lords, we now come to the group beginning with Amendment 8. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.

Amendment 8

Moved by

[Lord Collins of Highbury]

8: After Clause 2, insert the following new Clause—
“Free trade agreements: determination on compliance with international obligations and state actions
(1) Before publishing the objectives and any initial impact assessments of a proposed trade agreement to be implemented under the Constitutional Reform and Governance Act 2010, the Government must conduct a risk assessment which considers whether the agreement would comply with the United Kingdom’s international treaties and other obligations, with particular reference to human rights, and examines serious violations committed, or alleged to have been committed by the state or states who will be signatory to the proposed trade agreement.(2) The risk assessment under subsection (1) must be presented to the relevant Committees in both Houses of Parliament.(3) Before a trade agreement can be laid before Parliament under section 20(1) of the Constitutional Reform and Governance Act 2010 (“the CRAG procedure”), Ministers of the Crown must determine whether the trade agreement, if ratified, would be compliant with the United Kingdom’s international obligations, with particular reference to human rights, and whether serious violations have been committed by the state or states of the signed trade agreement. Such a determination must be published and made available to the relevant Committees at the same time as they are requested to consider a signed trade agreement.(4) The Government must present an annual report to the relevant Committees in both Houses of Parliament on the continuing compliance of trade agreements with the United Kingdom’s international obligations, with particular reference to human rights, and which examines serious violations committed or alleged to have been committed by the state or states who are signatory to the trade agreement since it was signed. If breaches of the United Kingdom’s international obligations or serious violations have taken place, Ministers of the Crown must make a determination on the continuation of a trade agreement.(5) In this section, “serious violations” include an activity by a state which would violate an individual’s—(a) right to life, including but not limited to genocide;(b) right not to be subjected to torture or cruel inhuman or degrading treatment or punishment;(c) right to be free from slavery and not to be held in servitude or required to perform forced or compulsory labour; or(d) other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.(6) In this section, “trade agreement” refers to any agreement between the United Kingdom and one or more partners that includes components that facilitate the trade of goods, services or intellectual property, including but not limited to—(a) free trade agreements as defined by section 4;(b) Interim Association Agreements and Association Agreements; (c) Economic Partnership Agreements;(d) Interim Partnership Agreements;(e) Stabilisation and Association Agreements;(f) Global Agreements;(g) Economic Area Agreements;(h) Cooperation Agreements;(i) Comprehensive Economic and Trade Agreements;(j) Association Agreements with strong trade component;(k) Transatlantic Trade and Investment Partnerships; and(l) Investment Protection Agreements.”

[Lord Collins of Highbury (Lab)]

My Lords, I thank the noble Lord, Lord Purvis, and the right reverend Prelate the Bishop of St Albans for signing this amendment. I also particularly thank the noble Lord, Lord Alton, for his support. Despite what we might read in the newspapers, there is no difference between us on these issues and, in particular, in ensuring that those people who commit genocide are held to account. We have a long record of working together on this and I am sure we will continue that co-operative approach tonight.

As we heard in the previous group of amendments, all EU trade deals since 2009 have had human rights clauses embedded in them, allowing the EU to suspend a deal, either partially or fully, if the third country is adjudged responsible for human rights abuses. While this power has not been exercised in any case so far, EU representatives say that it is vital, first as a basis for dialogue and progress on human rights issues during the negotiation phase for any new deal and, secondly, to apply ongoing pressure on third countries around these issues.

In February 2019, the then International Trade Secretary Liam Fox revealed that the watering down of human rights provisions was something many third countries were demanding as the price of agreeing a deal. He suggested then that the UK would not accept these demands, saying:

“Some countries have said that they did not like some of the human rights elements that were incorporated by the EU and they would like us to drop those in order to roll the agreements over.”


Mr Fox went on to say:

“I am not inclined to do so, because the value we attach to human rights is an important part of who we are as a country.”—[Official Report, 13/2/19; cols. 892-93.]


I totally agree with Mr Fox in that regard, and the Minister’s words in Committee expressed similar sentiments, but how are such words being translated into reality? Is there evidence of a consistent approach on human rights? Do we have a joined-up government approach? In 2016, Simon McDonald, head of the Diplomatic Service, told MPs that

“clearly more resource is devoted … to prosperity than to human rights.”

Human rights are one of the things we follow, but not one of our top priorities. When Theresa May visited China in 2018, she was praised by the Chinese state media for sidestepping the issue of human rights, putting the importance of what it called “pragmatic collaboration” with China first. The media concluded:

“May will definitely not make any comment contrary to the goals of her China trip…. For the Prime Minister the losses outweigh the gains if she appeases the UK media at the cost of the visit’s friendly atmosphere.”

19:00

The Government’s pragmatism on human rights has been particularly clear when it comes to the promotion of trade. We have seen the red-carpet treatment given to notorious human rights abusers such as Crown Prince bin Salman of Saudi Arabia, justified by his willingness to invest Saudi’s wealth in the UK and increase Saudi imports from the UK.

However, as with the previous group, there are 15 countries with which the Government say they are still in ongoing negotiations about rolling over beyond 31 December the preferential trading arrangements the UK currently has with them as a member of the EU. These include countries with very poor records on human rights, including Cameroon, Egypt, Singapore, Uganda, Turkey and South Sudan. All those countries have been the subject of very detailed debate in this House and condemnation by Ministers in this Chamber. Can the Minister say whether the draft deals under discussion will replicate or improve on the EU clauses on the protection of human rights?

The end of last week saw the announcement that a rollover trade agreement has been signed between the UK and Egypt. This is welcome news for UK firms trading with Egypt, but that cannot be the sole consideration when reaching an agreement with a regime such as President Sisi’s—a regime which has jailed, executed and disappeared hundreds of political opponents and human rights activists, brutally persecuted the country’s LGBT community and seen Egypt become one of the world’s top worst countries for workers’ rights. As President-elect Biden has said, there should be no more blank cheques handed to a dictator such as Sisi.

In negotiating this rollover agreement the Government had an opportunity and a responsibility to replace the toothless platitudes on human rights in the 2001 EU-Egypt agreement, and its total silence on workers’ rights, with meaningful, binding commitments on those issues and serious, enforceable penalties. My honourable friend Emily Thornberry, the shadow Secretary of State for International Trade, wrote to Liz Truss this morning, asking her to divulge the terms of this agreement, so that when we debated the issue this evening we would be aware of what the Government had achieved. Sadly, there was no response and there has been no agreement, so we cannot debate it. That is why we desperately need this human rights amendment, which seeks to make that process more transparent and accountable to Parliament.

This amendment proposes a triple barrier against trade agreements with countries that abuse human rights. First, Ministers would be obliged to provide an assessment of the human rights record of any overseas state before starting trade negotiations with them, so that this could be examined by the relevant scrutiny committees. Secondly, before seeking to ratify any subsequent trade deal, Ministers would have to publish a determination of whether the state has committed serious violations of human rights, so that this could be considered by MPs and Peers as part of the CRaG process for the scrutiny of new trade agreements. Thirdly, Ministers would be required to produce an annual report on the ongoing compliance of their new trading partner with international human rights laws and determine whether the UK’s trade agreement should continue if serious violations have occurred. Crucially, the determinations made by Ministers at stages two and three would be subject not only to scrutiny by Parliament but could potentially be challenged in the courts by human rights campaign groups, if there was clear and verifiable evidence that the Government were ignoring serious human rights abuses and violations of international law.

The definition of serious human rights violations in the amendment includes references to genocide, torture, servitude and compulsory labour. These are all charges that have been laid against the Communist Party of China’s Government in their treatment of the country’s Uighur population. The purpose of this amendment is to cover the widest possible spectrum of abuses, mirroring the language used by the Government to determine the liability of foreign nationals to the Magnitsky sanctions under the Sanctions and Anti-Money Laundering Act 2018, and to decide whether weapons can be sold to overseas Governments under the arms export licensing criteria.

We will be discussing a further amendment in the next group, and I want to make it clear that this side of the House will support it too. We do so because we support the principle. There may be issues around the legal process that we need to address, but we will certainly support it. We are working together across the House to ensure that human rights abuses are properly addressed.

This amendment targets a range of serious human rights abuses wider than the ultimate crime of genocide; that is its purpose and I am sure that is why the noble Lord, Lord Alton, signed it. These include indiscriminate massacres of civilians, the use of torture and arbitrary mass detention, serious violence against peaceful protesters, et cetera. It also demands that the Government make a determination of responsibility for human rights abuses, the basis of which can be challenged by Parliament and by the courts.

Finally, I want to repeat the argument that sympathetic words on the need for human rights and that human rights are taken into account, as I have heard used by the Minister, are not enough. They need to be translated into a clear and accountable process—a process that is accountable to this Parliament. For me, the best outcome today would have been if the Government had committed to come up with their own transparent process, thereby alleviating the need to divide the House. I think that, across all sides of the House, we are totally committed to human rights. There is no disagreement among us. What this amendment is clearly seeking to do is ensure that Parliament takes its responsibilities properly and that the processes used by the Government on human rights are properly scrutinised. That is what we want.

I fear that, prior to Report, the Minister has not given us the assurances that we so desperately wanted. Therefore, I must give notice that, potentially, I will seek to test the opinion of the House. However, it is not too late. I know that the Minister is listening. I sincerely hope that he is able to give us the assurances that we so desperately seek.

7.10 pm

Sitting suspended.

19:41

[Lord Alton of Liverpool (CB)]

My Lords, the Government may be concerned to see noble Lords return from that intermission invigorated and fortified for the remainder of the evening that lies ahead. I start by congratulating the noble Lord, Lord Collins, on the way in which he introduced his important amendment, to which I am a signatory, and the thoughtful way he expressed the reasons that lie behind it. I will not say it is a pleasure, because the issues we are discussing are hardly that, but I am always glad to be able to stand with the noble Lord, specifically when we deal with atrocity crimes and human rights, and tonight is no exception. I support Amendments 8 and 11 and the consequential new Schedule, which is linked to Amendment 11. I am a signatory to those amendments, proposed by the noble Lords, Lord Collins, and Lord Blencathra, from whom the House will hear in due course.

In his well-judged opening speech, the noble Lord, Lord Collins, explained that the amendments focus on our duty to examine the human rights records of trading partners. Later, as the noble Lord said, the House will debate Amendment 9, an all-party amendment in my name, which is more narrowly drawn, specifically targeting trade agreements with states accused of committing genocide, and putting in place a judicial mechanism to break the vicious circle that leads to inaction as genocides emerge.

Like Amendment 9, Amendment 11 in the name of the noble Lord, Lord Blencathra, also provides a judicial mechanism to enable a wholly independent judge to assess human rights violations wider than genocide. Amendment 8, in the name of the noble Lord, Lord Collins, provides the opportunity, through risk assessment, parliamentary scrutiny and an annual report to Parliament, to look at serious violations of human rights, including torture and servitude. I should declare that I am a trustee of a charity, the Arise Foundation, which combats modern-day slavery, and a patron of the Coalition for Genocide Response.

These amendments are not dependent on one another, or mutually exclusive. Taken together, they could provide a combination of oversight and pressure from within and outside Parliament, providing belt and braces. If enacted, they will enable us to redefine our willingness to trade with those responsible for egregious crimes against humanity—an opportunity which I flagged at Second Reading. Subsequently, on 29 September, during day 1 of our Committee proceedings, I moved Amendment 33, an all-party amendment which I described as an attempt to open a debate around three things: first, doing business with regimes which commit serious breaches of human rights; secondly, the overreliance on non-democratic countries in the provision of our national infrastructure; and thirdly, the role that Parliament and the judicial authorities might have in informing those questions. On 13 October, the fifth day of Committee, I moved Amendments 68 and 76A on the narrower point of trading with countries judged by the High Court of England and Wales to be complicit in genocide.

19:45

For the sake of completeness, I shall also refer to my Amendment 5, which I moved on 29 June on Report of the telecommunications infrastructure Bill, in which a number of noble Lords present tonight, in the House and online, participated. Despite a range of powerful speeches from all sides during that debate, the movers agreed to the Government’s request not to press the amendment to a vote following an undertaking by the Minister, the noble Baroness, Lady Barran, that the Government would engage with them and return at Third Reading with an amendment of their own. Several cross-departmental meetings were subsequently held but the Government were unable to table a Third Reading amendment, and indeed that Bill has disappeared into the long grass.

I am deeply disappointed that the Government have not used the Trade Bill to resolve this issue. I echo what the noble Lord, Lord Collins, said about that missed opportunity for the Government to bring forward an amendment that they themselves had crafted. The House needs to understand that, despite the willingness of noble Lords to engage with Ministers, the principle that serious human rights violations and even the crime of genocide should determine our trading relationships has not been accepted by the Government. Sadly, like Banquo’s ghost, a government amendment is this evening absent from the Room—probably having suffered the same fate as Banquo—which is why these amendments are on the Order Paper.

It should be clearly stated that Amendments 8, 11 and 9 make no mention of any particular country that might fall foul of these provisions. The movers are clear that these are not catch-all amendments but are carefully constructed to assess both the seriousness of such violations and the direction of travel of the country concerned. I could of course provide the House with a Baedeker’s guide to countries where human rights violations occur, but that is not the point of these amendments.

However, in imagining the circumstances in which such amendments might come into play, I will give the House just one hypothetical example of a country whose human rights record should be scrutinised and would be likely to be affected by these amendments. In that context, I refer to my role as vice-chair of the All-Party Parliamentary Group on Uighurs and the All-Party Parliamentary Group on Hong Kong. However, I add that the example is merely illustrative.

Forty years ago, as a young Member of another place, I had the opportunity in the early 1980s to travel in China. It was in the aftermath of the death of Mao Tse-Tung, whose 27-year reign of terror, which led to the horrors of the Cultural Revolution and the Great Leap Forward, took the lives of tens of millions of people. Estimates of the number of people who died under his regime range from 40 million to as many as 80 million, through starvation, persecution, prison labour and mass executions.

Notwithstanding the massacres in Tiananmen Square, China in the late 1980s and early 1990s—I know the noble Lord, Lord Grimstone, sometimes alludes to this himself and knows it to be true—appeared to be moving towards economic and political reform, perhaps exemplified most of all in the important “one country, two systems” pledge of the 1984 Sino-British declaration on Hong Kong. However—as we have seen with the dismantling of the Hong Kong model, the brazen arrests of pro-democracy campaigners, distinguished lawyers and opposition Members of the Legislative Council, and the emasculation of the rule of law—one-party, one-system hegemony is the order of the day. On the mainland, plurality and diversity are outlawed, made manifest by the arrest and imprisonment of dissidents, lawyers, artists, writers and religious adherents.

I have reduced what I was going to say today in the interests of time but I shall specifically mention Xinjiang, where an estimated 1 million Muslims are incarcerated in re-education and forced labour camps, subjected to brainwashing and surveillance, turned into slaves, separated from their families, sterilised and aborted and told to disown their culture and their religion—even forced to watch the destruction of their cemeteries, the desecration of their mosques and the obliteration of their identity. Professor Adrian Zenz, a German scholar, has described this as

“the largest detention of an ethnoreligious minority since World War Two”,

while a Newcastle academic describes it as

“a slow, painful, creeping genocide.”

Notwithstanding a great love of Chinese people and respect for Chinese culture, I carefully distinguish between my love of China its people and my enmity to an ideology and a system that would treat its own people in this barbaric way, brutally silencing any dissent. In considering our business and trade relations with the Chinese Communist Party, we can do little better than to consider the wise words of the noble Lord, Lord Patten of Barnes. He says that the CCP is

“a regime which regards business, as well as the state-owned enterprises, as part of the political project.”

There is an umbilical link between the CCP and the country’s companies—that is not in dispute. The Australian Strategic Policy Institute meticulously details the global expansion of 23 key Chinese technology companies and their links to the state. We know that Uighurs are used as forced labour in factories within the supply chains of at least 82 well-known global brands in the technology, clothing and automotive sectors, including Huawei, Apple, BMW, Gap, Nike, Samsung, Sony and Volkswagen. According to one report, the UK is strategically dependent on China for our supplies in 229 separate categories of goods, 57 of which service elements of our critical national infrastructure.

The deepening ideological hostility of Xi Jinping—who, as President for life, has returned to a personal dictatorship not seen since the days of Mao—his hostility to democracy, international institutions, the rule of law, and fundamental human rights, show how wrong western Governments were to believe that more and more trade with the CCP was going to insure us against an ideology which despises liberal democracy and the freedoms which we associate with it. I could cite other examples of how these amendments might have application, but do not intend to weary the House with that now.

As we consider future trading partners, we have the chance to link the trade we do with the values for which we stand. The United Kingdom was one of the nations that gave the world the 1948 Universal Declaration of Human Rights and the convention on the crime of genocide. Later, through the Helsinki accords, the United Kingdom and its allies knew the central importance of upholding of human rights with a patient determination that ultimately saw the collapse of the Berlin Wall. We did not achieve that by selling our souls to dictators.

We believe in a rules-based international order and we espouse liberal democracy, the upholding of diversity, the protection of minorities and the eternal quest for freedom. Those principles enunciated in these amendments would send a signal of hope to beleaguered people in dire circumstances, but I end with what I think it will say to the Chinese Communist Party and other violators of human rights. Liu Xiaobo, the Chinese writer and dissident, and Nobel laureate, who died in 2017, after serving four prison sentences, said:

“There is no force that can put an end to the human quest for freedom.”

We owe it people such as him, the incarcerated Uighurs, the suffering Tibetans, the Falun Gong and other religious believers persecuted for their faith, to stand four-square with them in that quest. By voting for these amendments, we will demonstrate—to arrested lawyers such as Hong Kong’s Martin Lee; young jailed pro-democracy campaigners such as Andy Li, Joshua Wong and Agnes Chow; to imprisoned newspaper owner Jimmy Lai; and defiant women like the brave Grandma Wong—that we will uphold the human rights of place such as Hong Kong and Xinjiang. We will put our belief in the quest for human freedom before menacing intimidation, brutal suppression of human rights and trade based on slave labour. It is for those reasons that these amendments are so important, and I will have no hesitation in voting for them tonight.

[Lord Blencathra (Con)]

My Lords, I rise to speak in support of Amendment 8 and my own Amendments 10 and 45—that is 10 and 45, not 11 and 45. I have been monitoring proceedings—watching them upstairs in my office—and I have popped down to the Chamber for this debate. I shall attempt to be brief because much has been said, in such wonderful ways and in such a powerful speech by the noble Lord, Lord Alton, whom I regard as my noble friend, and by the noble Lord, Lord Collins of Highbury—I think it is the first speech I have ever agreed with him on, although he may not find that helpful.

My Amendment 10 is designed to emulate the excellent Amendment 9 of the noble Lord, Lord Alton, because I seem to recall that, when he moved his amendments in Committee, the noble and learned Lord, Lord Hope of Craighead, commended the approach of involving the courts, and I thought, “That amendment has got some traction”. As such, my amendment on human rights—not genocide—follows the structure of the amendment of the noble Lord, Lord Alton. For the human right abuses, I have selected, in the main, the principal ones from the European Convention on Human Rights. I do not intend to push my amendments to a vote because I hope Amendment 8 will succeed, and I will vote for it.

The only little quibble I have with Amendment 8 concerns subsection (5)(d) of the proposed new clause. Subsection (5) talks about “serious violations” and lists “genocide”, “torture”, “inhuman or degrading treatment”, “slavery” and so on—but paragraph (d) then talks about

“other major violations of human rights”

and lists:

“the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.”

My worry here is that one is getting down to less important human rights, some of which I regard almost as motherhood and apple pie. My concern is: would the Government use this as an excuse not to go down this route?

Yes, of course, they might accept genocide, slavery and torture, but I question reporting to Parliament every time that one of the more minor human rights is contravened. We may consider this terribly important in our western liberal democracy, but I suspect that, if you look at the huge range of UN human rights, the protocols and the additions to them, almost every single country in the world could be accused of breaching one of them. That is my concern, and it is why, in my Amendment 45, to which Amendment 10 refers, I listed the main ones from the European Convention on Human Rights:

“The right to life


Freedom from torture


Freedom from slavery


The right to liberty


The right to a fair trial …


Freedom of expression


Freedom of assembly


The right to marry and start a family”


and so on—because it is important to concentrate on the main ones.

The noble Lord, Lord Alton, has set out in detail the incredible abuses of the Uighur people in China. I put it this way: would we dream of doing a trade deal with the regime in Burma, considering what it has done? Would we do a trade deal with the late and highly unlamented Mugabe of Zimbabwe, after his extermination of 20,000 of the Matabele people? No—of course not. Yet in China—again, I distinguish between the people of China and the communist regime—the regime is equally as bad as Burma or Mugabe, and, as the noble Lord described, it is doing genocide in slow motion, whereas Mugabe exterminated 20,000 Matabele in a few months.

Of course we would not do a trade deal with those countries or other regimes, but we are trading with China because it has got a grip on us: we are overreliant on trade with it and overdependent on it. This is not the time to get into and debate this with my noble friend the Minister, but I wish all success with Project Defend, which is aimed at trying to make sure that we reshore some of the things that we are dependent on China for or that we source them from other countries. Even something as bog-standard as paracetamol, which costs about a penny a tablet, should not be 99% sourced from chemicals in China and then produced in India; we must source more of these vital products and services from other countries. That is why I support Amendment 8.

To save time, because we are running rather late tonight, I intend to withdraw from speaking on Amendment 9, but I completely support it. I will vote for it, and I hope it passes because it is probably the most important amendment we have dealt with today or tomorrow—or whenever we will address this Bill again; it is the most important amendment, and I think the Government can easily, and should, accept it. If the wording is slightly wrong, they have time to clean it up in the other place for us to get it back here during ping-pong. With those remarks, I will conclude and let others speak.

I would be grateful if the noble and learned Lord, Lord Hope of Craighead, would make a comment, if he can bear it, on my point about some of the more trivial human rights abuses in case that weakens the argument. I may be totally wrong, but if he has a chance to comment on it, I would greatly welcome that.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Northover, who will be followed by the noble Lord, Lord Curry.

20:00

[Baroness Northover (LD) [V]]

I thank noble Lords for putting down these amendments, which I wish to support. Noble Lords who have spoken have laid out clearly why the amendments are needed and how vital it is that we do not slip backwards with regard to human rights. As noble Lords have explained, Amendment 8 sets out three ways in which to ensure that in agreeing to potential trade deals we do not condone the abuse of human rights. Ministers must assess human rights in the country or countries in question before starting trade negotiations, present their conclusions for scrutiny by the relevant parliamentary committees, and reassess when the negotiations are complete. They must also present an annual report on the matter. The courts could play a role in those first two stages, ensuring that these are not empty gestures, for example to a Parliament with an overwhelming majority for the Government of the day.

The amendment’s definition of serious human rights violations includes genocide, torture, slavery and forced labour, complementing the amendment that we will consider in the next group. As noble Lords have said, the amendment reflects the language used by the Government in relation to the Magnitsky sanctions and arms export licensing. Of course, the FCDO produces an annual report on countries of concern with regard to their human rights.

The noble Lords, Lord Collins and Lord Alton, have laid out many instances of human rights abuses around the world, including genocide. Until now, we have made trade agreements as part of the EU, and as the noble Lord, Lord Collins, has explained, human rights conditions are now applied to all EU trade deals. Surely we do not intend to drop below those standards. However, I noted during scrutiny of a recent SI on conflict minerals that we have fully signed up so far only to what the EU is implementing for Northern Ireland—because of the Northern Ireland protocol. That does not reflect centrality for human rights. I realise that the FCDO has a huge amount on its plate, but EU agreements, with their human rights provisions, are scrutinised in the European Parliament. We have just passed an amendment that will, we hope, ensure that scrutiny by Parliament is part of our democratic future, just as it was when we were in the EU.

The Government have made it clear that high human rights standards and values will drive global Britain. Yet we hear that countries seek to exploit the fact that we are in a weaker position, as a nation of 67 million people, than the powerful economic bloc that is the EU. We can already see how the EU is, for example, seeking to drive up environmental standards using its muscle.

The Government indicated that we could simply roll over agreements with other countries—a somewhat peculiar thought, since it implied that there would be no advantages from leaving the EU. We have since discovered that other countries do not regard our market as being as significant as the EU’s, and, moreover, they want to see how useful we might be as a route into the EU. All this means that in future it is likely to be more difficult to make sure we build in human rights when seeking trade deals with other countries. It has been a feature of the whole Brexit process that things have been promised that turn out not to be easy to achieve after all.

Amendment 8 is totally in keeping with what the Government say they wish to do, so they should surely support it. If they do not, it becomes even clearer that we need this amendment.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Falkner of Margravine, has withdrawn, so I now call the noble Lord, Lord Curry of Kirkharle.

[Lord Curry of Kirkharle (CB) [V]]

My Lords, I fully endorse the wise comments of the noble Lords, Lord Collins, Lord Alton and Lord Blencathra, and the remarks made just now by the noble Baroness, Lady Northover. I fully support these amendments and will reserve my comments for the debate on Amendment 9 in the next group.

[Lord Hope of Craighead (CB) [V]]

My Lords, I will speak in support of Amendment 8; I also support Amendment 10 in the name of the noble Lord, Lord Blencathra. In response to his kind invitation, I say to him that I do not think that the reference in his proposed new schedule to other human rights weakens the argument in any way. I hope that he rests assured that that is the position, and that his amendment stands as a good amendment that should be carefully considered.

I do not believe that this country has been at all at fault in its support for the international treaties and obligations with reference to human rights to which the amendment refers. Indeed, we have led the way from the very start in the international campaign for the protection of human rights that began more than seven decades ago. Legislation has been brought forward with the minimum of delay on each occasion to incorporate each of the protections and rights into our domestic law. Nevertheless, there are gaps in the mechanisms for giving effect to our international obligations. With the exception of the UN Convention against Torture, which enables the contracting parties to bring proceedings against any persons within their jurisdiction for acts of torture, wherever they were committed, and some extensions of the reach of the European Convention on Human Rights that have resulted from decisions of the European Court in Strasbourg, the contracting parties can deal only with offending acts that are committed within their own territories. They can deal only with persons who have infringed their provisions; they cannot deal with acts, however egregious, committed by states. The fact is, however, that some of the most horrific infringements have been committed by state actors, to which the noble Lord, Lord Alton, referred, with the encouragement and support of the states themselves. The prospect of those states bringing the perpetrators to justice is remote. The result is that there are places across the world where those who are crying out for the benefit of internationally recognised human rights are without any effective protection whatever.

Quite how to meet this problem has puzzled many minds: it is not easy to find a workable solution, but we cannot stand idly by. We have to do the best we can. The amendment that follows, Amendment 9 in the name of the noble Lord, Lord Alton of Liverpool, offers one way in the case of the international crime of genocide. This amendment, which reaches out more widely across a whole range of violations affecting our international human rights and obligations and, happily, has the support of the noble Lord, Lord Alton, too, offers another. It fits in neatly with the aims and purposes of this Bill. Furthermore, the way it seeks to give effect to our international obligations should serve as an example to other state parties that have joined with us in the endeavour to extend the protection of fundamental human rights throughout the world. The amendment would show leadership in an area of human affairs where this is much needed. I hope very much, therefore, that the Minister will feel able to accept it.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Blackstone, has withdrawn, so I call the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I congratulate the noble Lord, Lord Collins, on so eloquently moving his amendment. He has done the House a great service and expressed himself much more clearly than I was able to do on subsection (9)(e) of the new clause proposed by my Amendment 7, where I briefly spoke about human rights. I ally myself with comments made by the noble Lords, Lord Collins and Lord Alton, my noble friend Lord Blencathra and, in particular, the noble and learned Lord, Lord Hope, whom I am delighted to follow. I was a little disappointed by the less-than-enthusiastic response by my noble friend the Minister to my raising of human rights in the context of Amendment 7, and I hope that he will do full justice to this group of amendments, which I intend to support if they are pressed to a vote.

[Baroness Noakes (Con)]

My Lords, my first point on these amendments is that I am fundamentally in favour of trade. It is a huge part of our history as a nation and is certainly part of our ambitions for our future outside the EU. Being in favour of trade does not mean that I am against human rights, but I believe that a mature trading nation has to be able to balance competing interests; for example, the desire for all nations to uphold the highest standards of behaviour towards their citizens against the economic well-being of our own nation.

Human rights abuses are not a black and white issue. At one extreme, there is appalling abuse, such as the treatment of the Uighurs in China—though we must not forget that China contests the facts. At the other extreme, there might be a nation state that has never committed a human rights abuse, but I am not sure one exists. The UK, for example, has been founding wanting by the European Court of Human Rights on several occasions, and our own courts have found the same. Importantly, there is a spectrum of grey where the difficult task of responsible government arises.

Both Amendments 8 and 10 envisage using the courts to decide whether a human rights abuse is one that could, in effect, override or cancel the free trade agreement. In the case of Amendment 10 in the name of my noble friend Lord Blencathra, this is explicit, but in the case of Amendment 8, the noble Lord, Lord Collins of Highbury—I think that I am quoting him correctly—said that the Government’s determinations under his new clause could be challenged by the courts. The courts in the UK may be good at determining whether human rights abuses have been committed in this country, but I do not believe that they are well placed to make any such determination in relation to overseas territories.

Furthermore, both amendments open our courts to vexatious claims by human rights activists of all kinds. I have a vision of our hard-pressed judicial system being swamped by the kind of litigation that is bound to follow if these amendments become law. It is not wise to invite our courts into the territory that is properly the domain of the Government’s foreign and trade policy; that would be a very poor outcome.

Amendment 8, unlike Amendment 10, does try to restrict itself to “serious violations”, but it defines them widely in subsection (5)(d) as

“other major violations of human rights and fundamental freedoms.”

I do not know what that means and I do not want our courts getting sucked into these sorts of issues, which are, inevitably, political judgments at the end of the day.

I have one fundamental objection to these amendments: they attack free trade agreements only. They do nothing about trade that carries on on WTO terms. We do not have a free trade agreement with China but we certainly trade with it. If noble Lords think that passing either of these amendments, or Amendment 9 in the next group, will do anything for the Uighurs in China, they are not being honest with themselves. We should be wary of using our power to legislate to do no more than virtue-signal.

[The Earl of Sandwich (CB) [V]]

My Lords, I support Amendment 8. We have been privileged to belong to the European Union and follow the Copenhagen principles, as they were once called. We followed these rules as EU members; they will now be translated into our own legislation. Even in the EU, there are countries where the rule of law falls short, yet we still trade with them. Beyond that, how can we influence and do business with the more serious human rights offenders? Should we bring them aid and trade on the grounds that, in time, that might lead to a culture that could introduce new ideas and alleviate human rights offences? It is an outdated, even arrogant, position—I am not sure that it worked with Macaulay and Curzon in India—but we still argue it. Sometimes, we have to go further and resort to sanctions.

On the International Agreements Committee, I have argued for a stronger reference to human rights in the Explanatory Memorandum. In the past, you would see the phrase “no significant human rights considerations”, but I know from the Minister’s reassurance that the FCDO has been working hard on this and things such as trafficking. The rollover agreements reiterate the EU clauses, including protection for minorities. Can the Minister confirm that there has been further progress there as far as the new free trade agreements are concerned?

20:15

Normally I stand next to my noble friend Lord Alton in human rights Divisions—I see him now in front of where I would be. However, on genocide, I part company with him, I am afraid. I am not an expert like our noble and learned friend Lord Hope or several others here, but I know that some of the famous cases of genocide or ethnic cleansing have foundered in the courts because of definition or determination. Indeed, some flagrant ones will never be proved on that basis unless they fall under the simpler tests—the noble Lord, Lord Blencathra, talked about these—of human rights violations that contravene the many international conventions mentioned in these amendments. The noble Lord, Lord Collins, himself admitted that there were legal issues.

The Uighur case is different, simply because China will not discuss it and we have no leverage, even through international law, so in that sense it would be a waste of time as a free-standing amendment in this Bill. However, I fully acknowledge the benefits of trade sanctions and any adverse publicity, which are bound to disfigure China’s international profile— and rightly so. We have not given up on Tibetans and we will not abandon the Uighurs or the people of Hong Kong.

[Baroness Smith of Newnham (LD)]

My Lords, I support Amendment 8. Unlike the noble Earl, Lord Sandwich, I also support Amendment 9.

In opening the debate on this amendment, the noble Lord, Lord Collins, asked whether we have a consistent approach on human rights. The Prime Minister spent a lot of time when he was Foreign Secretary, and since then as Prime Minister, talking about going global. That is not just about trade, which concerns the noble Baroness, Lady Noakes, but about a wider set of interests and principles. We can trade widely but is that all that we should be doing? I do not believe that it is mere virtue-signalling to suggest that, if we want free trade agreements, we should also think about wider issues associated with the countries with which we are trading.

The noble Earl, Lord Sandwich, is right that there are difficulties in adjudicating on genocide. Whenever genocide is raised with the Ministers at the FCDO, they say, “We cannot possibly talk about it unless it has been brought as a legal case and confirmed by the courts.” That is why Amendment 8 is important as a wider amendment that talks about human rights more generally, but the two go together.

As my noble friend Lady Northover pointed out, it is important that the Government support this amendment. Free trade should not be the only thing that matters. If, as an independent country now separate from the European Union, we seek to play a major role in the world, surely that should be based on our fundamental values and principles—not just on the value of trading contracts but on the value of relationships more generally. Trade in goods that comes from forced labour, modern slavery and concentration camps is surely not something that anybody in this country or Her Majesty’s Government can condone. As my noble friend Lady Northover said, surely the Government can support this amendment. If they cannot, it is even more important to have it in the Bill. I support Amendment 8.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I declare my position as co-chair of the All-Party Parliamentary Group on Hong Kong, which may have some relevance to this. I join with many other noble Lords in thanking those noble Lords who have tabled and supported these amendments. I should warn the House that, in about the next minute of my contribution, I am going to be very concrete and graphic—this needs a trigger warning for anyone who has been a victim of torture or abuse.

This is an account provided by Ömir Bekali, a Uighur Muslim from Xinjiang in the far south-west of China, the former owner of a small tourism business, who spoke to the “Varsity” magazine in Cambridge in October. The noble Lord, Lord Alton of Liverpool, talked about the big picture of what is happening in Xinjiang, but this is one man’s story. Ömir said:

“They shackled my hands and put black fabric [over] my eyes … I feel my body tremble whenever I remember that moment … My feet and my hands were tied up with iron shackles and they beat my hands, they beat my feet … they beat my back and my stomach … They put needles in between my nails and my fingers”.


After I have spoken, I will tweet a link to the report, which contains much more and worse than what I have just put on the record.

The world has, sadly, been hearing reports of human rights abuses for decades, centuries and millennia. I have to respectfully disagree with the noble Baroness, Lady Noakes, who suggested that these amendments would not help the Uighurs. What we are doing is making sure that we do not go backwards from the inadequate but still existing controls that we have with regard to human rights and trade under our former EU membership. I agree with the noble Earl, Lord Sandwich, who said that the calling out of human rights abuse and putting it on to the international agenda is crucially important in terms of influencing the behaviour of peoples and nations.

In the UK, we have often had the cover of saying, “Perhaps little can be done in far-away places with few connections with over here, and there is little that we can do to help.” It was often the excuse—a very thin and inadequate excuse—that that was only the word of one individual; it was not hard evidence of what was happening. But that is not the case anymore, because we now have satellite pictures of massive so-called re-education camps, concentration camps or straight-out prisons in Xinjiang. We have even, due to the globalisation of the economy, the occasional desperate note pleading for rescue from abusive forced labour falling from a holiday present into the living-room of a shocked British household. That is a practical demonstration of the fact that we know well: our trade, companies and society, and our prosperity, are inextricably linked in a crucial way to the economic structures that are fed by these abuses. Our economic structures and political arrangements all too regularly, either tacitly or even explicitly, condone or accept such behaviour.

I note that Amendment 8, in the name of the noble Lord, Lord Collins of Highbury, has been criticised as being too weak, but it is a start and a step in the right direction of acknowledging the link between trade and human rights. Amendment 10, in the name of the noble Lord, Lord Blencathra, steps up to and links with Amendment 9 that we will consider in the next group. The Green group will support them all. The amendment provides a strong and clear focus on genocide, even if it is limited in scope.

Let us start here and see how far we can get. I would say to Members of your Lordships’ House that if you will not be joining the many Lords who have said that they will back at least some of these steps, my question is this: what will you say to Ömir, who has spoken out bravely in the hope of action to protect people still in Xinjiang and people around the world who are suffering human rights abuses? Choosing not to do something is not a neutral act, but an active choice, a choice of morality, a choice about the kind of world we all live in, now and in the future.

I am sure that many noble Lords will be familiar with the short story by the late and brilliant Ursula K Le Guin, “The Ones Who Walk Away From Omelas”. For those who are not, it is about a wonderful, prosperous and flourishing city that relies for its prosperity entirely on the permanent misery and the deliberate abuse of the human rights of a single child. Those who walk away are those who reject this bargain. We have today a trade system built on the misery not of one but of millions. Will noble Lords reject that bargain?

[Lord Lansley (Con)]

My Lords, I am glad to have an opportunity to contribute to this important debate. I thank the noble Lords, Lord Collins of Highbury and Lord Alton of Liverpool, my noble friend Lord Blencathra and other noble Lords for bringing forward amendments. They give us an opportunity to consider some important issues. I will talk about Amendments 8, 10 and 45, and refer to Amendment 9. Having done so, I will not speak on the next group.

With Amendment 8, the noble Lord, Lord Collins, has set out an encompassing process for an examination of the human rights situation in countries with which we might enter into international agreements. The list of agreements to be included at the end of his amendment is very wide ranging indeed. Many of these agreements would extend far beyond trade, but it is not criticised on that account; it is intended to be encompassing. This is a very wide-ranging process on the route into trade agreements, on the point at which they are laid before and, if necessary, reported to this House and subsequently in annual reports.

The question that immediately comes to mind is what happens as a consequence. What happens is that one of the two Houses of Parliament has to do something about it. From listening to the debate, noble Lords have specific and sometimes compelling examples of the human rights abuses, violations and even—as Amendment 9 refers to—genocide that may be the responsibility of states with which we enter into agreements. The first point to make is that we should be responsible for thinking in precise terms about whether to enter into those kinds of agreement with those states and under those circumstances. We should not set up a wide-ranging, encompassing, endless process of bureaucratic scrutiny but take responsibility for determining with whom we have relationships, the character of the relationships we enter into and whether to sustain them.

That brings me to my second point, where I agree with my noble friend Lady Noakes: how can we abdicate that responsibility to the High Court? We have spent a lot of our time debating whether Parliament should intervene in the Executive’s prerogative power to initiate, conduct and enter into trade agreements and treaties. Here we are discussing an amendment in which people seem to think that Parliament should not do that but hand responsibility to the High Court to determine whether we remain in an agreement or should revoke an agreement that we have entered into. I cannot, for the life of me, see that it is right for Parliament to abdicate its responsibility to the High Court.

In practice, I come back to how we have to take that responsibility ourselves. Everybody has talked about China, but the noble Lord, Lord Collins, made an interesting speech illustrating this by reference to Egypt. I am not going to take a view on that today, because I do not have the knowledge to argue that it is right or wrong to roll over the agreement with Egypt in the way in which we intend, but the noble Lord asks the right question, in my view, at the right time. We have all the powers available to us to decide whether to enter into such an agreement. We do not need to change the Bill to change that fact; it is a matter only of looking at the circumstances of an individual agreement with an individual counterparty, and asking whether we should do it or not.

Another thing to mention is the timing of this. There is always, “If not now, when?” This is difficult because, yesterday, the Government initiated a review of our own human rights legislation. Our Human Rights Act requires that, if a court were to determine that we are acting in a way that is incompatible with the European Convention on Human Rights, it can make a declaration of incompatibility. Then Ministers can make an order—they do not have to—to remediate that incompatibility.

20:30

However, this amendment and, likewise, Amendment 9 seek to go much further. The High Court would not make a declaration of incompatibility between our international obligations or human rights commitments and the agreement that we have entered into—no, it can directly revoke it. It overrides not only the Executive but the legislature, and that cannot be right. It is my view that the terms of reference of the independent review encompass thinking about how we enter into international agreements, and treaties, and how those relate to our human rights obligations entered into internationally. I would welcome my noble friend the Minister saying something on that.

The extraterritoriality of our human rights legislation is part of the terms of reference of that independent review of our Human Rights Act. In the months ahead, this should be the subject of that independent review and we will come back to it. Inevitably, I suspect, we will have legislation on human rights, and that is the time when we should consider precisely how this Parliament should take that responsibility forward.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Lord. I remember very clearly the debate that he led in Committee. I think it was just the two of us and the Minister in the Chamber, shortly before midnight, when we debated a framework for human rights and trade. That is the point that he was trying to make, and I agree with him very strongly. That is why I commend the noble Lord, Lord Collins, for tabling this amendment to try to persuade the Government that there will be support if they bring forward a trade and human rights policy that we can engage in and work on with them. That is an appeal. I commend the noble Lord for bringing the amendment forward and I am delighted to have added my name to it.

With regard to a list of countries, we are yet to roll over an agreement with Algeria, which Freedom House has classified as “not free” or similarly with Cameroon, Egypt or Eswatini, which are also classified “not free”. We would not engage in this with Syria—although if we were rolling over all agreements, that could include an agreement that did exist but is not in place because the country is under sanction. We have arrangements with the Palestinian Authority, which Freedom House indicates is “not free”; Zimbabwe again is “not free”.

We have separate debates over Turkey and Vietnam. When it comes to Serbia and Bosnia-Herzegovina, we know that those two countries have had year-long disputes over the definition of genocide within the international tribunals. I agree to an extent that, as the noble Baroness, Lady Noakes, indicated, this is a grey area. That is not, however, a reason not to progress into a framework to continue to seek improvements.

I hope the Minister does not mind if I remind him that he has twice been referred to in this way as a private citizen and business leader. As chair of a British financial company he commended the authoritarianism of President Xi over protests in Hong Kong, stating that this ensured economic continuity in Hong Kong and was in the UK’s interest. He has now migrated from business leader to political leader. In many respects, that is illustrative of the challenges that we all face about choices that we make in the business community as well as the political community—it is illustrative of this wider debate.

I serve on the International Relations Committee, as does the noble Lord, Lord Alton. We said in our report on the Middle East that the British Government were on the wrong side of international human rights law in continuing to sell arms to Saudi Arabia as the Yemen tragedy ensued. We have high standards in this country and I believe we are a force for good around the world, but we should not delude ourselves about how others see us: inventor of concentration camps, holder of weapons of mass destruction and declarer of illegal wars. I love my country, but I am not totally rose-tinted about our history.

Still, we have had a proud record post war as the noble and learned Lord, Lord Hope, said. We have helped to shape international norms on human rights, in which we can take particular pride. One of the theatres where we have done so was in the European context when we were a member of the European Union. The noble Lord, Lord Collins, quite rightly said that a common approach on the use of political clauses was agreed in the European Union in 2009, to ensure that there would be systematic references of human rights clauses in all agreements going forward. I will come back to that.

I want to make it very clear what I am calling for, so that the Minister understands that there is no equivocation: a human rights and trade policy which has proper indicative measures and triggering mechanisms, so that we can replace what we had within the European context and have a distinct United Kingdom approach for all trade. The noble Lord, Lord Lansley, referred to proposed new subsection (6). I am pleased that the amendment outlined the breadth of the type of agreements that we have. I hope that the noble Lord, Lord Alton, does not mind me saying that Amendment 9 would have been strengthened if it had been more specific about the areas which we will be covering.

The noble Baroness, Lady Noakes, asked about what proposed new subsection (5)(d) means by some of those

“other … violations of human rights … including … the International Covenant on Civil and Political Rights.”

One example is that we hold strongly to the view that countries should not have the death sentence for people who have a mental illness, or for children. That is within the ICCPR and there should be no disagreement that it is a serious human rights violation. If such a violation is being practised, the question is what impact that should have on our trading relationships.

This is all about the trade relationships that we have through agreements, whether it is a full free trade policy or one of the other agreements outlined in proposed new subsection (6). Those all invariably involve preferential access for that third country to our economy: preferential either because there is less tax or because they have access to our markets or partnerships which we would deny to others except, in general, the WTO. As my noble friend Lady Smith asked: what value do we put on that preferential access? One part is economic; the second part is the value that we have for our wider rights.

I return to the common approach in the European Union and the use of political clauses. The agreements with third countries included human rights and they were all under what was termed “essential elements clauses”. Free trade agreements would be linked to the political framework agreements with that country, encapsulating all the agreements that we have. If they did not exist in the framework, this would be included specifically in a free trade agreement. I would be interested to know whether the Government believe that this is of merit too. Should we include our human rights element in our trading agreements, linked with the other partnership agreements that we have with that country? Labour rights have been included in specific trade and sustainable development chapters. I tried my hardest in Committee to get the Government to state their position on the inclusion and sustainable chapters in future agreements. They did not do so; I hope that the Minister can be clear about it today.

The fact that there has been a standard approach since 2009 meant that, during negotiations on agreements with countries, the EU was able to proactively assess the overall positive and negative impacts on trade agreements, including human rights, and the totality of the human rights record and domestic legal frameworks of that country. That informed the negotiations with those countries. It is not necessarily a case of seeking to impose a legislative framework on that country, but we assess what it is. At the very least, we determine how many international obligations, from labour rights to a whole set of legislative requirements on human rights, they have domesticated into their law. In the European context, it is interesting how many countries revised their domestic legislation during the process of negotiations with the EU, and domesticated international obligations—something they had not done up until then.

Up until that point, most of the agreements had the ability to either pause or suspend. It is only in the recent EU-Canada agreement that, for the first time, there is a specific mechanism where, if there is a gross violation of human rights, or non-proliferation, that could serve as grounds for termination of the entire agreement. We will get into this in the next group, but given that this is the first time, I would like to know from the Minister whether that element has been replicated in the UK-Canada agreement? If it has, it would be the first time that the UK has done this. If the Government have not replicated it, that is, in my mind, a very clear signal that they are departing from the approach that we had led up until now.

I hope that the Government will listen carefully to calls from across the Chambers. We need a UK Government impact assessment tool for the UK that is cross-departmental, including the Department of International Trade, the FCDO and BEIS, so that we can take a considered approach to human rights clauses in our trade agreements, sanctions regimes on human rights from our Foreign Office, and, potentially, remedial acts from the Department for Business. Without a proper impact assessment tool, it is very hard for us to consider this. We need mechanisms and we need frameworks. I hope noble Lords do not mind me saying so, but I believe that this is more important at this stage in this Bill than simply referring to individual examples of human rights abuses around the world that we know, to our shame, have existed.

I hope that the Government will respond positively to Amendment 8 and, before Third Reading, set out clear draft human rights clauses for future trade agreements, draft trade and sustainability chapters, and the mechanisms for escalating concerns around the implications of human rights, and the mechanisms that will then be triggered for us to judge not only whether we believe that the relationship should be questioned but what mechanisms can be put in place. At the end of the day, all of this is about the people and the victims. Unless we have a clear framework and a clear position from the Government, we are letting those people down in the countries with which we trade.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Collins of Highbury, for his Amendment 8. It touches on an important issue that, as noble Lords know, this Government take very seriously and to which I would like to assure the House I am personally committed.

Before I address the amendment specifically, I want to emphasise that the Government share the concerns underpinning the amendments before us today. The UK has long supported the promotion of our values globally and remains committed to our international obligations. We are clear that more trade does not have to come at the expense of human rights. I can confirm to the noble Lord, Lord Collins, that in rolling over continuity agreements we are seeking to deliver continuity of effect for agreements with all our partners. I can confirm that we are not seeking a continuity agreement with South Sudan.

In answer to the noble Earl, Lord Sandwich, I am sure he appreciates that I cannot comment on agreements presently still under negotiation. I have noted the point of my noble friend Lord Lansley on the ongoing human rights review, and I will make sure it is considered. I can assure the noble Lord, Lord Purvis, that we seek to ensure that human rights are recognised and protected in all our free trade agreements. This includes clauses in our trade agreements with many developing and emerging markets, suspensive powers in our trade preferences regime, and recourse to trade levers through our sanction policy.

Turning to the amendment in hand, tabled by the noble Lord, Lord Collins, I am sure the noble Lord will be pleased to hear that the Government are already delivering on some of the commitments that his amendment seeks. For instance, the amendment seeks publication of an annual report. My department has already committed to publish an annual report on our programme of trade activity, and we can certainly explore whether that report could be used for the purposes envisaged here.

However, there are a number of concerns and legal risks raised by the amendment from the noble Lord, Lord Collins, which means that we are unable to support it. It would constrain the royal prerogative powers to negotiate, ratify and withdraw from treaties. Of course, curtailing the royal prerogative is not something that the Government would do lightly.

20:45

The inclusion of alleged violations, as well as actual violations, would make it very difficult to compile the reports envisaged in the amendment. What criteria would there be for determining whether an allegation needs to be included? How is evidence meant to be gathered with respect to such allegations, particularly when such evidence likely resides mainly in the territory of the trading partner? I apologise for dealing in practicalities, but it is my responsibility to put these practicalities before you. These are fundamental questions to which there are clearly no easy answers, and they should be considered before your Lordships seek to place this amendment into legislation.

The amendment also foresees potential termination of a trade agreement in the event that reports produced by the Government indicated that serious human rights violations have occurred in a trading partner country. Termination of any trade agreement would be an extraordinary action and would entail significant economic disruption, as well as legal, diplomatic and political risks.

This brings me to Amendments 10 and 45, which are also directed at termination of trading arrangements. These amendments seek to give the High Court of England and Wales powers to revoke trade agreements where the court holds that another signatory to the relevant agreement has committed serious human rights abuses, in the case of Amendment 10. We have many problems with this approach, but I will detail the two most serious.

First—and I know this has been recognised by some noble Lords—the approach strikes at the heart of the separation of powers. It would give the High Court the power to frustrate unilaterally trade agreements entered into and implemented by the Government and ratified by Parliament. Parliament would remain sovereign, but it would require primary legislation to reverse the court’s decision effectively and, in the meantime, that could result in significant damage to relationships with trade partners.

Secondly, with respect to my noble friend Lord Blencathra’s amendment specifically, this would enable courts to revoke plurilateral or multilateral trade agreements altogether, even if only one of the signatories to the agreement had committed an abuse of human rights. This could give the High Court the power to terminate the UK’s membership of the WTO if any single WTO member were found to have committed abuses. An extreme example, perhaps, but it is important to be clear that it would not be possible to revoke agreements in a way that targeted only the country held to have committed genocide or human rights abuses. The entire agreement would be affected. This is a very serious legal defect, and so noble Lords will understand why the Government must strongly oppose it.

Given the ongoing wide range of activities the Government continue to undertake on human rights, I hope that the noble Lord will be reassured of the seriousness that the Government accord to this issue and that he, and other noble Lords, will continue to work with us on this agenda. In the light of the legal difficulties, the unintended consequences and other risks outline above, I therefore ask the noble Lords not to press their amendments.

[Lord Collins of Highbury (Lab)]

I thank the Minister for his response. I also thank all noble Lords who contributed to this debate. I say straightaway to the noble Lord, Lord Blencathra, that I am pleased that on this fundamental issue of principle we are agreed, and I think that that applies across the House. It has been a very positive debate, even where we have disagreed.

The noble Baroness, Lady Noakes, is absolutely right that I am committed to trade, but we are not talking about stopping trade; as the noble Lord, Lord Purvis, said, we are talking about preferential arrangements and agreements, going out there and seeking special agreements to enhance trade and to do more. As I said at the beginning of the debate, we are following a principle that has already been adopted, and we want to make sure that we have a proper process. The fundamental issue here is how Parliament scrutinises the actions of government, particularly on this important point of principle.

I will not take up the House’s time too much; I just want to come back to what the Minister said. He said that on the one hand, “We are already doing what you seek”; on the other hand, he said, “There are fundamental problems with what you’re trying to argue for.” The noble Lord, Lord Lansley, said that now is not the time and that there are issues here that we need to address elsewhere. I disagree. I think that this is absolutely the time. When the United Kingdom is about to leave the European Union, it is very important that we commit ourselves to clear processes that allow for proper parliamentary scrutiny.

I tend to agree with some of the concerns about the intervention of the courts, but at the end of the day there is a clear separation of power here. If Parliament decrees and the Government fail to act within the requirements of Parliament, our courts have a right to intervene. That is our constitutional position, although I would hope that no Government would ever breach the commitments they have given to Parliament. That is why I think that my amendment, signed by the noble Lords, Lord Alton and Lord Purvis, and the right reverend Prelate, is so important. We need that clear process.

I am afraid that the Minister has failed to give us the assurances that we want, so I want to test the opinion of the House.

20:52

Division 3

Ayes: 297

---

Labour: 134
Liberal Democrat: 77
Crossbench: 53
Independent: 19
Conservative: 6
Bishops: 3
Green Party: 2
Plaid Cymru: 1

Noes: 221

---

Conservative: 188
Crossbench: 20
Independent: 7
Democratic Unionist Party: 4
Ulster Unionist Party: 1

21:05

[The Deputy Speaker (Lord Bates) (Con)]

My Lords, we now come to the group beginning with Amendment 9. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.

Amendment 9

Moved by

[Lord Alton of Liverpool]

9: After Clause 2, insert the following new Clause—
“Agreements with states accused of committing genocide
(1) International bilateral trade agreements are revoked if the High Court of England and Wales makes a preliminary determination that they should be revoked on the ground that another signatory to the relevant agreement represents a state which has committed genocide under Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, following an application to revoke an international bilateral trade agreement on this ground from a person or group of persons belonging to a national, ethnic, racial or religious group, or an organisation representing such a group, which has been the subject of that genocide. (2) This section applies to genocides which occur after this section comes into force, and to those considered by the High Court to have been ongoing at the time of its coming into force.”

[Lord Alton of Liverpool (CB)]

My Lords, the House has already heard some of the arguments explored in the preceding group of amendments. The House will be relieved to know that I will not rehearse them all again.

Amendment 9 straightforwardly asks the House to give the High Court of England and Wales the opportunity to make a predetermination of genocide if it believes that the evidence substantiates the high threshold set out in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, to which the United Kingdom is a signatory. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, my noble friend Lady Falkner of Margravine and the noble Lord, Lord Forsyth—the other sponsors of this all-party amendment—to Peers from all parts of the House and to the Coalition for Genocide Response, notably its co-founders, Luke de Pulford and Ewelina Ochab.

During the preceding debate we heard three things about Amendment 9 which I would like to deal with immediately. The first was from the Minister, the noble Lord, Lord Grimstone. He has now retreated to the Back Benches after the exhaustion of the last few hours and we welcome the noble Viscount to his place to answer this debate. The noble Lord, Lord Grimstone, talked about the separation of powers. I remind the House that in the case of genocide, whenever the Government speak on this issue in this House, we always say that it is a matter for the courts. This is the same Government. They say that there is a separation of power and indeed, recently said that the recognition of genocide

“is a matter for judicial decision, rather than for Governments or non-judicial bodies.”—[Official Report, 13/10/20; col. 1042.]

I gently say to the Minister, and the noble Lord, Lord Lansley, that the Government’s position is that the courts make the determination about genocide. That is not to say that Parliament should not have a view about these things—I agree with what the noble Lord, Lord Collins, said earlier about the role of the courts. I would also say to the noble Baroness, Lady Noakes, who has left the Back Benches but may be viewing from elsewhere, that this is not about virtue signalling. This is about virtuous behaviour. If we cannot stand up on the crime of genocide and say that once evidence has been placed before the courts, it is shown to be credible and they make a predetermination, we will not then, in those circumstances, stop trading with that country, in what circumstances would we do so? There is a clear issue here on this narrow point of genocide. That is why this amendment is different from those that have preceded it. It is about one question: the crime above all crimes. I realise that some noble Lords who would not have been able to vote on the earlier amendment support this amendment because it is so carefully constructed and defined.

Three speeches were made in Committee that explain the thinking behind this amendment very well. The noble Lord, Lord Stevenson of Balmacara, rightly said that enabling the UK High Court to make legal determinations on genocide is preferable to other legal avenues. Pursuing such claims through international courts has proven ineffective. The amendment provides a respected means to assessing genocide, allowing the UK to live up to its legal commitments on genocide. He is right. The noble Baroness, Lady Northover, added that future trade deals may not be subject to parliamentary scrutiny, so it is imperative that the Government decide now to rule out deals with perpetrators of genocide. Not for the first time, the noble Baroness is right.

My noble and learned friend Lord Hope of Craighead, who has a lifetime of experience in the highest reaches of the law, said in a hugely important speech in Committee that there is inadequacy in the judicial architecture currently in place. In comparing the genocide convention with the convention on torture, he said:

“The UN Convention on the Prevention and Punishment of the Crime of Genocide now seems, with hindsight, to be a deplorably weak instrument for dealing with the challenges we face today … we can now see, in today’s world, how ineffective and perhaps naive this relatively simple convention is.”


The noble and learned Lord said that the amendment would

“allow for due process in a hearing in full accordance with the rule of law.”

It would “achieve its object” and result

“in a fully reasoned judgment by one of our judges. That is its strength, as a finding by a judge in proceedings of this kind in the applicant’s favour will carry real weight, quite apart from the effect it will have on the relevant agreement.”—[Official Report, 13/10/20; cols. 1037-38.]

He said that the route we have chosen in this amendment has his “full support” and would be “a big step forward”.

Just three weeks ago, we marked 75 years since the Nuremberg trials. Sir Hartley Shawcross, later a Member of your Lordships’ House, was the Labour Member of Parliament for St Helens and the lead British prosecutor at the Nuremberg war crimes tribunal. In his closing speech at Nuremburg, Shawcross remarked that when

“some individual is killed, the murder becomes a sensation, our compassion is aroused, nor do we rest until the criminal is punished and the rule of law is vindicated. Shall we do less when not one but … 12 million men, women, and children, are done to death? Not in battle, not in passion, but in the cold, calculated, deliberate attempt to destroy nations and races”.

Shawcross reminded his generation that such tyranny and brutality, such genocides, could only be resisted in the future not by

“military alliances, but … firmly … in the rule of law.”

Yet we all know how regularly such horrors have recurred while the law we put in place in 1948 has been honoured only in its breach.

I will unpack the vicious circle that the amendment seeks to break. Over the past 20 years, I have raised the issue of genocide on 300 occasions in speeches or Parliamentary Questions in your Lordships’ House. As recently as 5 November, I asked the Government whether they intended to follow the example of Canadian parliamentarians in designating actions by the Government of China against their Uighur population to be a genocide, and what plans they had, if any, to enable an appropriate judicial authority to consider the same evidence and to reach a determination on this matter.

In reply, I was given the usual circular argument that the Government’s policy is not to make such determinations themselves but—and I say this gently to the noble Lord, Lord Lansley—to leave it to the courts, knowing that the International Criminal Court would require a referral from the Security Council and that, in this case, China would veto any attempt to hold it to account by the International Criminal Court.

I say gently to my good and noble friend Lord Sandwich, responding to his remarks in the earlier group of amendments, that this amendment does not seek to carry out criminal prosecutions in the High Court of England and Wales. If it did, it would have to overcome all sorts of obstacles to bring about a prosecution. This amendment seeks to establish whether there is sufficient evidence available. We heard some of it from the noble Baroness, Lady Bennett of Manor Castle, in her intervention on the last group. Is there sufficient evidence for a predetermination to be made? That is the point: this is not about a criminal prosecution; it is about whether there is evidence that can be established in the High Court of England and Wales.

21:15

Before lockdown, I went to northern Iraq. I met Yazidi and Christian leaders who told me, “What happened to us was way beyond imagination”. It is not beyond our imagination—quite the reverse. In March 2016, my noble friend Lady Cox, the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Forsyth, and I specifically moved an amendment calling for the evidence we presented during that debate—of horrific genocidal acts being carried out against Yazidis, Christians and other minorities—to be laid before the High Court and for a judge to determine whether those atrocities were part of a genocide, which would, of course, have required an appropriate response from the Government. The Government opposed the amendment and I hardly need remind the House of what occurred.

During my visit to northern Iraq, I met some of the families whose girls had been abducted, raped and enslaved. Some of them are still refugees, having seen neighbours slaughtered and homes confiscated. In every case that I have ever raised, going right back for 20 years—20 years ago, I raised what was happening at the hands of the Burmese military in the Karen State, which I had gone into illegally, and was told that it was not a matter we could deal with here—I have always received the same reply. I remind the House of what the noble Lord, Lord Ahmad, said: that the recognition of genocide

“is a matter for judicial decision … rather than for governments or non-judicial bodies.”

Yet, as my noble and learned friend told us in Committee, the international judicial system is not functioning as intended.

This is not about ceding power from Parliament to the courts, as the noble Lord, Lord Lansley, was right to remind us. This is not about the widespread ceding of powers; this is about a very narrow area. This is about genocide and a policy that is already the position of the Government. It is depoliticising a decision that Governments of all persuasions have hesitated to make. Limiting the clause to genocide is also proportionate. There can be no clearer statement that the United Kingdom places its values above trade than making it clear that we are not content to strike deals with genocidal states.

Let me finish my remarks by recalling again the challenge laid down 75 years ago at Nuremberg by Sir Hartley Shawcross. For 70 years, we have failed to recognise our wholly inadequate response to those challenges. Tonight, we have a chance to put that right. I intend to ask the House to vote on this amendment, unless the Government are prepared to say that they will come forward with an amendment at Third Reading to deal specifically with the issue of genocide or will do so in another place.

No doubt we will be told, as we so often are, that this is the wrong amendment, that it is technically defective, that it is the wrong Bill, or that it is the wrong time. We are always told those things. It is always the wrong time; it is always the wrong Bill. The amendments are never perfect, but the whole point is that, week in, week out, I have been urging the Government to sit down with us and with some of the most celebrated lawyers in this country, who are esteemed in their knowledge of human rights law and who, through the Coalition for Genocide Response, circulated as recently as this morning a long brief setting out why this is a viable amendment and why any refinements that are needed can easily be rectified if there is good will on the part of the Government.

By sending this amendment to the House of Commons, where I know that it has support on both sides of the Chamber—notably from the former leader of the Conservative Party, Sir Iain Duncan Smith—I know that we will ensure that something good will come out of our debate tonight and out of the effort that so many noble Lords have put into this issue. It will give the other House a chance to engage and remedy any deficiencies in drafting. Tonight, we should not hesitate in affirming the principle that we will not trade with countries judged by our High Court to be mired in genocide. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, it is with great pride that I support this amendment. As the noble Lord, Lord Alton, has just said, he and I have been involved in discussions around this crime for some time, and we have engaged with some of our most senior lawyers and judges on how it can be addressed.

Genocide is the most serious crime in global law; for that reason, it stands apart and is distinct and singular. The term was first coined by Raphael Lemkin in 1944; he was a Polish Jewish lawyer who was undoubtedly absolutely bereft as he watched the horrors of the Holocaust and its atrocities unfold. He also drew on the history of previous instances in which entire nations or ethnic or religious peoples had been destroyed. His urgency was a new legal suggestion, and, although it was mentioned at the Nuremberg trials, it was mentioned in descriptive terms rather than as a legal term. It was immediately after the Second World War that genocide was coded as an independent crime under international law, in the 1948 Genocide Convention. That came into force on 12 January 1951; 12 January 2021 will be its 70th anniversary. Think how fine it would be for us to be a nation that had just put some teeth into the law against this most egregious of crimes.

The legal definition of genocide is precise and includes an element that is very hard to prove: intent to commit genocide. This is a very high bar and an evidential hurdle that is great; this is something of which those of us who practice law in this field are all too conscious. It involves efforts to exterminate and dehumanise a people—a whole set of people. You have already heard the horrors experienced by the Uighurs described in this House. I declare immediately that I co-chair the Inter-Parliamentary Alliance on China—IPAC—and, like the noble Lord, Lord Alton, I have travelled to the refugee camps where the Yazidis give accounts of the most horrifying events that have taken place to that people. Witnessing and knowing about the detail of genocide can only convince decent, good people that we have to try to find ways of making this a crime that has no place in this world.

The noble Lord, Lord Alton, explained the purposes of this amendment: the genocide amendment. Its purpose is to ensure that there is a preliminary determination by the High Court, not any lower court, as to whether there is genocide. It is pre-emptive: the whole purpose of the Genocide Convention was to prevent genocide by placing a duty on nations to act to prevent it. I will say immediately what this genocide amendment is not: it is not, to use the language of the noble Baroness, Lady Noakes, an effort to swamp the courts. The bar is so high that such a case could not possibly be brought before the High Court of this country and have any serious reception if it were not presented with a whole body of evidence that was highly persuasive and involved eminent lawyers who could testify to the bar having been passed on the definition of genocide.

What else is it not? It is certainly not a breach of the separation of powers—a constitutional issue—because, of course, no court will be determining that a trade agreement has to be revoked. It would be for the court to determine whether the bar had been met—that is, whether events documented a genocide that needed to be prevented. That preliminary determination of the courts would then, of course, have great import for any Government committed to human rights and their treaty obligations on genocide. One would expect any such Government then to revoke a trade agreement. All our trade agreements going forward would contain a clause indicating that, if there were a determination by the High Court, this would be the basis on which an agreement could be revoked.

The final thing that this is not is that it is not about determining the liability of individuals for criminal offences. That is not what the High Court would be doing in this case at all. Individual determinations of criminality would not be before the court and would not be determined by the court.

What does this amendment do? It creates new law; we are not pretending that this is not novel. It is, clearly and distinctly, something new. We have no doubt, given the interest shown in it by international lawyers from other nations, that it would be a great moment in the development of law—a role that Britain has often played. If passed into law, in time many other nations would follow suit. It is a way of giving teeth to international law. One of the questions we have always asked has been, how do you make international law have an impact? How do you get things before a court when we have a Security Council bound up with nations that will never agree to matters getting before certain courts? What we are seeking to do here is really to make a new development in law, which will undoubtedly be copied by other nations and signals the importance we attach to this crime above all crimes. We are going to see it on our statute books as a way of giving it pre-eminence in the world. I have no doubt that other states will replicate it.

I cannot bear the expression, “virtue signalling”. Yes, we will be signalling something about our values. We will be signalling that we will not stand by and do business and trade with countries that are destroying whole peoples. That is something we should be proud to be taking a stance on. Let us please extinguish that ghastly expression “virtue signalling” from the language, because we should be taking stances that show we can express our values and our virtues, without any snide grandstanding by onlookers who are not prepared to act.

I urge this House to vote for this amendment if the Government do not agree to it. I really want them to agree to it, because, as I say, genocide is a crime above all others and we should not demur in our commitment to seeing it end.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, it is a very great pleasure to support this amendment, following the excellent speech of the noble Lord, Lord Alton. He reminded us that this is not the first time we have discussed this matter. I took part in a debate with him on such an amendment back in March 2016, almost five years ago. The noble Lord has raised this issue on more than 300 occasions, ably supported, as he was back in March, by the noble Baroness, Lady Cox, for whom I have the most enormous admiration. At a time last week when, thanks to the First Minister, it was difficult for me to get beyond my garden gate, the noble Baroness was visiting yet another war zone. The whole House should be extremely proud of both the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, who is speaking later in this debate, and the indefatigable energy which they have shown in pursuing this cause. I therefore join with the noble Baroness, Lady Kennedy of the Shaws, and other noble Lords from across the House in supporting this amendment, in order to send a clear message once and for all that we as a nation will not be complicit in genocide.

This amendment introduces a mechanism to equip a competent court to make an interim determination of genocide. It provides for what is a novel, I accept, but crucial approach in effectively responding to genocide, especially as Governments of all shades have lamentably failed in their duty to respond as horrific genocides have unfolded. When we had the debate in March 2016, I spoke about the horrors facing Yazidis and Christian minorities—people who use the language of our saviour, of Christ himself—and we were unable to reach out and help them. I asked how much longer we were prepared to stand by and not acknowledge what was going on, which was a systematic attempt to destroy Christianity throughout the Middle East.

21:30

More recently, I have spoken, along with many other Members of this House, about the atrocities faced by the Uighurs in China. In neither case have the Government used the word “genocide” because of their long-standing position that such a determination should be made by a competent court and not politicians. While, as the noble Lord, Lord Alton, has pointed out, that proposition is debatable and poses questions, the amendment we are discussing today responds to the Government’s position by mandating a competent court—the High Court of England and Wales—to make such an interim determination.

I usually agree very much with my noble friend Lady Noakes, but to accuse me and others of virtue signalling borders on offensive. I hope that, on reflection, she will recognise that this is not virtue signalling but trying to do something about the extermination of people across the globe because of their beliefs.

I want briefly to comment on the Government’s position of leaving the question of genocide determination to international judicial bodies—an argument which I have no doubt will be deployed yet again. When we talk about genocide determination, we do not mean a final determination in a criminal trial against an individual, whether by domestic or international criminal courts, as this does indeed have to be done by competent courts, following procedure with the relevant criminal thresholds. When referring to genocide determination, as the noble Baroness, Lady Kennedy, who has far more expertise on these matters than I have, has made clear, we mean an interim determination made by relevant bodies that would inform the Government’s response to such atrocities, including whether to trigger any of the duties under the UN Convention on the Prevention and Punishment of the Crime of Genocide.

As the International Court of Justice, in its judgment in Bosnia and Herzegovina v Serbia and Montenegro clarifies, the “obligation to prevent” arises

“at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”

I understand the Government believe they already have all the relevant mechanisms in place, but that is not the case. Indeed, in failing to assess the risk of genocide in situations of concern, the United Kingdom could itself be accused of being in breach of its obligations under the genocide convention.

The amendment responds to the finding of the ICJ judgment, in that the interim genocide determination will enable the Government to learn of the serious risk of genocide being committed and respond by revoking the trade agreement with the state. This might, at the very minimum, have some deterrent effect on perpetrators, who will start to understand that genocide cannot mean business as usual. Business matters when it comes to addressing mass atrocities.

I draw the attention of the House to the work being done in the United States concerning the linkage of business and mass atrocities. In September this year, US Customs and Border Protection issued several withhold release orders for goods produced in China, including products produced in Xinjiang. These orders prevent goods being imported into the United States when made with forced labour. In mid-October 2020, the US Government announced that they were launching a co-ordinated response, including the closing off of opportunities to do business in the United States for companies that do not respect human rights.

All those measures and the ones we are proposing today send a much stronger message to the CCP’s officials than any diplomatic engagements, which do not even begin to scratch the surface. The amendment before us today would put in place a mechanism that made it clear that we are no longer content to mouth superficial platitudes and repeat tired old slogans such as “Never again”. As the noble and learned Lord and former Supreme Court judge, Lord Hope of Craighead, has told us, from a legal and practical point of view the amendment will work. Reviews and committees may also have their place but are weak tea by comparison.

As a nation, we cannot do business with states engaged in genocide. Waiting for determination by international judicial bodies—ships that never come in—and in the meantime doing business as usual simply cannot be accepted any more, not in the 21st century. I support the amendment, for it will give the House of Commons—the elected House—an opportunity to decide on this matter, and I invite others to do the same.

[The Deputy Speaker (Lord Bates) (Con)]

I call the next speaker, the noble Baroness, Lady Falkner, and I will then call the noble Baroness, Lady Northover.

[Baroness Falkner of Margravine (CB)]

My Lords, it is a real pleasure, as the fourth person to have put my name to the amendment, to speak after the wonderful speeches that we have just heard—most notably, that of the noble Lord, Lord Alton, who has been steadfast on this issue for many years.

Every now and then, two or three times a century, nations are measured in international affairs for what they did or did not do. In the writing of the history of the United Kingdom in our era, Brexit is expected to take centre stage, but we do not know at this stage whether in the long run it will prove to have been a canny move, giving us flexibility to adapt to a new world, or an ill-thought-through wail of frustration at globalisation. Some of the tally of the UK’s actions at this time will stand out; others, mercifully, will be forgotten.

In this amendment, if passed by this place and agreed to by the other place, we can see a stand-out moment—standing out and standing by a relatively small religious group that is subject to a crime against humanity: genocide. At a time when we know that it is happening—when we have the technology, the resources and the testimony of survivors that tell us of such egregious practices—for us to profess ignorance would be nothing less than condoning China’s behaviour against its Uighurs Muslims in Xinjiang.

I and the noble Lord, Lord Alton, have spoken over several years in this Chamber about the atrocities committed against the Uighurs. I almost feel that I am repeating myself every time I stand up to make this kind of speech, but I am not, as every time I look at the subject and the detail of what we know today, as opposed to what we knew last month or last year, I can see that things are getting worse.

China is running a gulag worthy of the description of the Soviet gulags by Aleksandr Solzhenitsyn, except that from what we now know in real time, not in retrospect, it is much worse. From 2015, we learned of detention camps from seeing satellite images. There were Chinese denials. Then, in 2018, the Chinese Government stopped denying their existence when the evidence was irrefutable and declared that they were “vocational education and training camps”. In these camps in Xinjiang, inmates are asked to renounce the Koran and their belief in God and to profess belief in—you could not make this up—"Xi Jinping thought”.

According to the Economist, guards ask prisoners if there is a God and beat those who say that there is. I think that I am the only Muslim speaking in this debate. I can tell noble Lords that it is impossible for a Muslim to renounce God, since the acknowledgment of God’s existence is the foundational principle of being a Muslim. While getting a daily beating may not sound egregious, Muslims will not go there—they will not sign up to “Xi Jinping” thought if it involves giving up God. It is something for which they will be prepared to die—and they are dying.

Then there is the sterilisation of Uighur women. In parts of Xinjiang, the Uighur birth rate fell by 60% between 2015 and 2018. There is, furthermore, the forced transfer of people to undertake forced labour—in detention, with watchtowers to prevent them escaping their factory dormitories. This persecution of the Uighurs is a crime against humanity systematically imposed by a state—a Government—that brooks no internal opposition. It is the most extensive violation in the world today of the principle that individuals have a right to liberty and dignity simply because of their humanity—because they are people.

This amendment abrogates trade deals—revokes them, as it says—if the other signatory, according to a High Court ruling, is a state that has committed genocide. It is needed in this Bill because no party to the genocide convention should be doing business with China while it continues to perpetrate this crime. If we pass this, we in the United Kingdom will be refusing to stand idly by and to elevate commerce above conscience. Not to pass it would be a shame. If we decide to pass it, it will represent us as a beacon of liberty in one of our first acts as a sovereign nation.

The noble Baroness, Lady Kennedy, spoke of the 70th anniversary of the genocide convention. Other noble Lords have referred to international institutions, as, no doubt, will the Minister, in his closing speech. I remind the House that we cannot leave this to other bodies when there is the disgrace—I go so far as to say the obscenity—of China being elected to the United Nations Human Rights Council. The time has come: we have to act.

[Baroness Northover (LD) [V]]

I thank the noble Lords who have brought forward this amendment. The House has heard the passion, as ever, of the noble Lord, Lord Alton, on this terrible issue, and they have heard the arguments of the noble Baroness, Lady Kennedy, who has made the legal case with great authority.

I feel that the noble Viscount has drawn the short straw in being expected to respond. Having been a Member of this House for a number of years and a Minister for most of the last decade, he will surely know to cross out of his speech all those statements that are put in as standard: that it is not necessary to have this on the face of the Bill, and that there are problems with the drafting of the amendment. He will know that what is critical is the essence of an amendment, and there cannot be anything more important than this. As the noble Lord, Lord Forsyth, has said, it is not enough to say “Never again”, as was said after the Nazi genocide: the 20th century saw other genocides and we still do, as the noble Baroness, Lady Falkner, has said. I am sure that none of us would ever wish to have a trade agreement with a country that is practising genocide, but can we be sure?

21:45

Moreover, as others have pointed out, declaring something a genocide requires the agreement of those who may well have an interest in not agreeing that it is the case. For decades, as has been said, the policy of the United Kingdom Government has been that only international judicial bodies should determine whether genocide has occurred. Currently, the United Kingdom does not have any formal mechanism for genocide determination, yet it has proactive responsibilities under the genocide convention.

I will not go into the challenges of ensuring that, when genocide is occurring, it is identified as such without delay, given the lateness of the hour and the fact that people are familiar with the problems. This amendment could help the United Kingdom fulfil its duties under the genocide convention. I am sure the Minister will reject it, but I hope to see, when and if this amendment is passed, the Government engage on how the essence of this is finally to be taken forward.

[Lord Cormack (Con)]

My Lords, I echo the final words of the noble Baroness, Lady Northover, and implore my noble friend on the Front Bench to heed what she said.

I will begin on a personal note: 75 years ago, at the time of the VE celebrations, my parents took me, a six year-old boy, to see newsreels. Among them was Belsen. My mother’s instinctive reaction was to put her arm in front of my eyes; my father’s reaction was to sit me on his knee and say, “The boy must see what evil people can do.” It is one of my earliest and most vivid memories.

As a newly elected Member of the other place, 25 years later, at the invitation of the late Greville Janner, whose memory I honour, I became the first chairman of the all-party group—there were very few in those days—for the release of Soviet Jewry. I spoke on the telephone to those who had been to the gulags. I was refused a visa to Soviet Russia, but we smuggled out a volume of the Jewish scriptures for a young boy’s bar mitzvah gift. His father had been in the gulag. About 25 years after that, as chairman of the All-Party Group for Bosnia, I saw what happened in Srebrenica, which was almost the same time as those ghastly massacres in Rwanda.

Those who have brought this amendment before your Lordships’ House tonight have done us all a great service. The precision of the amendment is its most commending feature, because it concentrates on what the noble Baroness, Lady Kennedy, rightly referred to as the ultimate and most heinous of crimes: genocide.

A week ago, we debated that peculiarly named Covert Human Intelligence Sources (Criminal Conduct) Bill. We had an amendment, on which a number of us spoke, which would forbid the authorising of young people under the age of 18 from committing crimes. I will certainly continue to support my amendment or others on that subject.

Why, my Lords? Because it is wrong. If anything is wrong on a gargantuan scale, it is of course genocide. We cannot and must not be fobbed off with an answer from the Front Bench that says that it is too difficult, that the wording of the amendment is wrong or that it does not fit in. Some of those excuses have already been rehearsed by those such as the noble Lord, Lord Alton, who has been pressing for the amendment, which I am also doing.

The Prime Minister talks very proudly of “global Britain”. Global Britain must have a moral compass. Global Britain must not sacrifice its national integrity. The country that was responsible for the abolition of the slave trade and the abolition of slavery throughout the British dominions, in 1807 and 1833 respectively, must draw upon that proud heritage. What is happening in China to the Uighurs, as we have just been reminded in a very moving speech, is despicable and appalling. I believe that we should ensure that those who can pronounce on these things are able to pronounce on this. Is it genocide? I do not believe that there is any doubt that it is right that it should be a legal judgment and pronouncement; if such a pronouncement is made, it is absolutely right that we should not seek to trade on preferential terms with the People’s Republic of China—a great country with a great and civilised people who are having things perpetrated in their name that are the very negation of civilisation.

I say to my noble friend Lady Noakes and others that business does matter, but lives matter more: black lives, white lives, Chinese lives, Muslim lives and Christian lives—all lives matter. We should not in any way be complicit, even tangentially, in turning a blind eye to some of the most evil deeds that have been perpetrated in the past 50 years. I support this amendment.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Cormack, and his very moving speech. I wish to support this amendment. It presents your Lordships with an alternative way of dealing with the international crime of genocide from that which was considered under Amendment 8. I have noted the concerns expressed by the noble Lord, Lord Lansley, about handing the matter over to the courts. However, as the noble Lord, Lord Cormack, has just pointed out, there is a legal issue here that needs to be determined. There are complicated issues of fact as well that need to be carefully assessed, so any idea that this is not a matter for the courts really is misplaced. We need to consider this alternative.

As I said when noble Lords considered this amendment in Committee, the campaign to root out genocide and bring its perpetrators to justice is a hard struggle. The problem is that the weakness of the enforcement mechanisms in the UN Convention on the Prevention and Punishment of the Crime of Genocide means that the convention is simply not up to the job. Of course, we must be grateful for the declaration in Article 1 that genocide is a crime under international law and for the width of the definition of this crime in Article 2. We can also be sure that the United Kingdom, as one of the contracting parties, will play its full part in bringing to justice any individual who can be brought within the jurisdiction of our courts so that they can be punished for their part in this crime. But there are gaps which the UN convention leaves open. Its object remains largely unfulfilled and we have to face the fact that the international institutions are falling short too.

Of course, the vast majority of countries around the world do not practise genocide. They needed no persuasion when the convention was open for signature that they must refrain from it. The problem is with the minority, those states which have no conscience in this matter and which still engage in this horrific crime with impunity. The noble Lord, Lord Alton, who is such a steadfast advocate in this field, has reminded us once again that the struggle to fill those gaps cannot be allowed to fail.

The procedure that the noble Lord has chosen had my full support in Committee and it has my full support here, too. I remind your Lordships that it seems to have two very important advantages, which deserve to be emphasised once again. The first is that it meets the requirement that there must be a person, or a group of persons, with a relevant interest to bring the matter before the court. The persons described in the amendment will almost certainly satisfy that requirement. The second is that the procedure it seeks to introduce must allow for due process, with a hearing in open court, in full accordance with the rule of law.

I believe that this object will be achieved. It means that notice of the proceedings will be served on the Secretary of State and on a representative of the other signatory of the bilateral agreement, both of whom must have the right of reply. That will ensure that they can present their cases to the court, thus enabling the court to scrutinise and test all the competing arguments. If the argument of the interested persons is upheld, the “preliminary determination” that the amendment refers to will amount to a direction to the Secretary of State that the United Kingdom must withdraw from the agreement; in the case of a bilateral agreement that will mean, in effect, that the agreement will be revoked.

Withdrawing from an international agreement in circumstances which the agreement itself does not provide for is a sensitive and difficult matter. That is especially so where it is not being suggested that any provisions of the agreement itself have been breached, but I believe that the noble Lord and his cosignatories are right not to have been deflected by these and other similar problems from persevering with this amendment. The strength of their position lies in the—if your Lordships will forgive me for using Latin—jus cogens erga omnes nature of the obligation under international law to prevent and punish acts of genocide.

That expression was used by Lord Bingham of Cornhill in the Appellate Committee of this House in A v Secretary of State (No 2) in 2005, when he was examining the obligation relating to torture under international law. What this means in our context is that the obligation to prevent and punish genocide is a peremptory obligation under international law. Not only that—as Lord Bingham said, it requires us to do more. It requires states to do all they can within lawful means to bring genocide to an end. As it binds all states, it is an obligation which lies at the heart of the relationships that states undertake with each other. It is the kind of obligation that goes without saying. The fact that an agreement does not refer to it does not mean that it does not exist or that it can be forgotten about.

The conclusion that has been drawn from the propositions that I have just summarised involves difficult and overlapping areas of law. The question of whether they provide an answer to an objection that the course which the amendment seeks to follow has no place in a trade agreement is an open question and it needs to be addressed. I believe that it is not capable of sound resolution simply by a debate in this House. It is best resolved by a court after hearing full and carefully reasoned argument from all sides. If that happens, the judgment—the determination—that is issued will carry with it great authority which will resonate throughout the world in a way that we need to be sure is done in order to further the cause of eliminating genocide. That is what this amendment provides for and it is why it has my full support.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Lord, Lord Blencathra, and the noble Baroness, Lady Blackstone, have both withdrawn from speaking to this amendment, so I call the noble Lord, Lord Curry of Kirkharle.

22:00

[Lord Curry of Kirkharle (CB) [V]]

My Lords, I am very pleased to endorse this amendment in the name of the noble Lord, Lord Alton of Liverpool. I congratulate him on his impassioned and persuasive introduction, as has been mentioned by other noble Lords. I fully support the comments of the noble Lord, Lord Forsyth, in his recognition of the determination of the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, to uncover atrocities around the world and be fearless in their attempts to unravel them and draw them to our attention.

The number of Members of your Lordships’ House who are listed to speak on this amendment is an indication of the seriousness of the issue that it seeks to address. I shall be brief, but I emphasise that I fully support the view that in this new era of our history it is an opportunity to reset the dial and have the courage of our convictions by taking the global lead. We absolutely cannot condone genocide and must, through the channels available to us, uncover and condemn it. To condemn genocide on one hand as a nation state, then be willing to negotiate trade deals and perpetuate trading arrangements is inconsistent in the extreme. It would be hypocritical, and the Government would be guilty of turning a blind eye to atrocities that have been proven to be taking place. Walking past on the other side, to use a biblical phrase, is not a stance that a responsible global state should adopt, and it would undermine our moral influence.

I quote Robbie Burns, the famous Scottish poet, and complete the phrase “Man’s inhumanity to man”:

“Man’s inhumanity to man

Makes countless thousands mourn!”

I hope that the Minister takes the matter very seriously and accepts the amendment.

[Baroness Deech (CB) [V]]

My Lords, I am sorry that I was not able to vote for the previous amendment, although I am very much in support of this one, because I felt that there were ambiguities—not least because there are offenders against human rights very close to us, such as in Poland, Hungary and Greece.

This amendment is quite different. It is one of the most profound and important amendments to be discussed in your Lordships’ House for a long time. We have an obligation under the genocide convention to prevent and punish genocide and its perpetrators, but if we rely on the Security Council or the International Criminal Court, we are dodging our obligations. We know full well that China’s seat on the Security Council means that it would veto any such move against itself. What a terrible indictment of the international order today, especially the UN and its constituent bodies. Instead of living up to their original ideals of maintaining international peace and security, better living standards, friendly relations and social progress, action—or, more likely, inaction—by the UN has come to represent quite often the very opposite of those ideals: self-seeking and looking for a scapegoat, a cover for some of the most reprehensible Governments in the world.

This amendment possesses the advantage of bringing the UK into compliance with its obligations under the genocide convention. Several states have argued, like the UK, that it is for the international and judicial systems to make the determination of genocide. This argument is profoundly flawed, as it neglects the basic fact that it is the state that is the duty bearer under the genocide convention—hence the states that are parties to the genocide convention must act to ensure that the determination is made by a competent body and that decisive steps follow to fulfil the states’ obligations under the convention to prevent and punish. Moreover, to have the issue of genocide, or not, examined in our courts would be a good thing.

It will likely be argued that the amendment may jeopardise relationships with states accused of genocide in the UK. It should be emphasised that positive genocide judgments are exceptionally rare, owing to the extremely high evidentiary standard. A formal legal examination and determination of genocide in court, to which the trade signatories might make representations, should not be any more diplomatically upsetting than, for example, the UK making complaints at the United Nations against nations such as China for their alleged human rights abuses. The amendment—if passed, as I hope it will be—will in time become a matter of diplomatic pride, sending a strong signal about the values of the UK as a leader in global human rights.

Owing to the rarity of genocide judgments, very few countries would fall within the purview of these provisions. It is difficult to envisage, therefore, that the Government’s ability to trade will be significantly affected. Generally speaking, Governments tend to seek to strike trade deals with nations with which they share common values. The UK does not currently have a trade deal with a country credibly accused of genocide, I believe, and one is not in prospect.

As it happens, we are unlikely to achieve or even want a trade agreement with China. The experience of Canada shows why. Prime Minister Justin Trudeau had been expected to come away with an agreement to formally start trade talks, but he insisted that any talks include gender and labour rights and environmental standards. He also raised human rights and China’s use of the death penalty. Basically, he was shown the door and was told no—that there would be no negotiation of a free trade agreement.

Likewise Australia, which, along with many other countries, has been a vocal critic of China’s treatment of the Uighurs in Xinjiang, its suppression of democracy in Hong Kong, and its military activities in the South China Sea. The anti-climax came in April when the Australian Prime Minister took the lead in calling for a thorough investigation into the source of the coronavirus. That incensed China. Since then, the deterioration of the China/Australia relationship has been swift. China is barring Australian goods and putting punitive tariffs on them.

As for the attempted EU-China comprehensive agreement on investment, it is only to be expected that the EU will put finance ahead of human rights, and even the mildest rebuke from the EU about human rights in China elicits a response from China that it should not be meddling in China’s internal affairs—that the Chinese people will not accept an instructor on human rights and oppose double standards. It will all likely end in tears.

This amendment embodies the only thing that we can do. International courts are ineffective; international arrest depends on the perpetrator coming here. It is insulting to the victims of genocide to imagine that putting up monuments, especially after the catastrophe, will make any difference. Nor will lighting candles or pulling down statues—all empty gestures.

If captains of industry and politicians had adopted the practice outlined in this amendment in the 1930s, history might have been very different. For example, IBM had immoral commerce with the Third Reich, supplying it with tabulating machines and punch cards, so useful in rounding up victims.

Can there be any doubt now about the genocidal moves of China? Modern communications ensure that no one can hide from their senses the genocidal policies that it is pursuing against the Uighurs. Foreign companies have wittingly or unwittingly helped China with facial recognition technology and artificial intelligence to enable social control. Trade with any part of China should be under the microscope, and let us not forget Tibet and the danger that now faces Hong Kong. Governments have the power to influence this. If China’s trade and investment are cut down, it may not be able to finance its barbaric projects. Not only should this amendment be passed with acclaim, but other Governments should follow suit.

We must remember the genocide against the Tutsis in Rwanda. The world failed to react to the events while they were unfolding. What did the Security Council do? It removed its peacekeeping mission and allowed bureaucratic foot-dragging to obfuscate the need for prompt—indeed, advance—action. That has weighed heavily on the international community, which now realises that it must do more. Advance action is needed to prevent genocide. Once it is happening it is too late. That is why this amendment is so well crafted and so deserving of support from your Lordships.

[Baroness O'Loan (CB) [V]]

My Lords, I would like to congratulate the noble Lords, Lord Alton and Lord Forsyth, and the noble Baronesses, Lady Falkner and Lady Kennedy, on this important amendment. I would also like to congratulate them and the noble Baroness, Lady Cox, on their work on the issue of genocide more broadly.

I need to declare an interest: I have been appointed as a member of the panel for the independent review of the Human Rights Act, which was announced today. The Convention on the Prevention and Punishment of the Crime of Genocide was unanimously adopted by the UN in 1948. It is important, perhaps, to remind ourselves of the definition of genocide, because it is not just killing or causing serious bodily harm or mental harm to members of a group because of their national, ethnic, racial or religious affiliations. It is also deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. These are all things we are currently seeing in Xinjiang.

Amendment 9 provides a mechanism for limited prevention and sanction of genocide, and it hence recognises the ongoing obligation of all states with which we trade not to engage in genocide.

There has been reference already to Xinjiang, and the noble Lord, Lord Alton, spoke eloquently of the extent of trading contracts in China which involve operations in Xinjiang. Your Lordships will recall that the UN Committee on the Elimination of Racial Discrimination described the region as

“a massive internment camp shrouded in secrecy, a … no-rights zone.”

The China Tribunal, chaired by Sir Geoffrey Nice, says that the “organised butchery” of living people to sell body parts of those from religious minorities and ethnic groups could be compared

“to the worst atrocities committed in conflicts of the 20th Century”,

such as the Nazi gassing of Jews and the Khmer Rouge massacres in Cambodia. The tribunal went on to say,

“But nothing, or nothing much, will be done by the Government because the damage caused by even trying to extinguish such abuses comes at what seems to be perceived as an unacceptable cost to trade, and ultimately to our other legitimate interests.”


Through Amendment 9 we can show that something will be done, that genocide is unacceptable, that we will not engage with trade deals where genocide occurs, and that such deals will be revoked where the High Court makes a preliminary determination that they should be revoked on the grounds of genocide, should that be the final decision.

Genocide may not be a popular topic, and it happens far from home, but genocide affects us all in various ways and to a varying extent. One of the most direct ways in which genocide affects us is that by trading with genocidaires we become complicit in the genocide itself because we are not taking action to sanction or prevent it. It is not enough to respond by saying that if we do not enter into such a trade agreement, others will. We have moral and legal obligations on the international stage, and our standing will be diminished if we do not recognise the need to protect the peoples of the world against genocide by refusing to contract with those who use people in their jurisdiction as slave labourers, or so regulate their lives that they can be forced to act as slave labourers.

During the struggle against the slave trade, which engaged Parliament for 40 years, ordinary people in their millions boycotted sugar from slave-owning plantations and refused to add to the bottom-line profits of that sordid trade. Recent activity on the public stage tells us that the British people today would not wish to be complicit in slave labour and genocide, even if there is a price to pay.

Amendment 9 is tightly drawn; it will not prevent trade, except in these very exceptional circumstances. It puts down a marker that UK trade is based on an adherence to our obligations in international law to prevent the crime of genocide.

One Minister recently suggested that possible trading partners might be put off by the possibility that the trade arrangements would be ended if they were found to be in breach of this amendment. We should not be entering into trading agreements with any country that is engaged in or planning genocide in its various forms. If countries subsequently move towards genocidal actions we should provide this remedy through our courts, for we are committed to our obligations under the convention against genocide. The Minister said that to withdraw from a trade agreement because of human rights abuses would be extraordinary. Genocide is extraordinary and the measures required to combat it may well be extraordinary, but we need to do this.

22:15

This provision would also complement the powerful new Magnitsky-style sanctions regime established by the Government in July this year, which targets individuals and organisations that have been involved in some of the gravest human rights violations and abuses around the world. Currently, individuals and organisations in Russia, Saudi Arabia, Myanmar and North Korea are subject to sanctions.

Amendment 9 simply provides a mechanism for judicial determination, which would enable the UK to decide whether such a revocation clause in a trade agreement should be triggered. Amendment 9 would enable us to be in a stronger trading position, so that we are not forced to continue trading unethically with those involved in genocide, and so to be complicit in their genocide.

Amendment 9 also adds content to our commitment under the UN Convention on the Prevention and Punishment of the Crime of Genocide. It is a small but significant step in the right direction. As my noble friend Lord Alton often says, genocide response and genocide prevention are not matters of chance. They require a judicial mechanism that works to put structure into the way we deal with this crime. The noble and learned Lord, Lord Hope, has told us that this mechanism will do just that. I hope noble Lords will support Amendment 9, as I shall.

[Baroness D'Souza (CB) [V]]

My Lords, in this long dialogue with the Government, notably led in this House by the noble Lord, Lord Alton, the facts have been reiterated time and again. There is an international agreement on the definition as set out in the UN Convention on the Prevention and Punishment of the Crime of Genocide, and this carries in bold the duty to prevent such genocide

“at the instant the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”

We need only need look at the clear early warning signs of impending murderous attacks on the Rohingya Muslims—which await final legal determination of genocide by an independent tribunal—to acknowledge that prevention of genocide is still a distant goal, fraught as it is with legal and political obstacles. Meanwhile, whole ethnic groups are being slaughtered, and we turn away for want of a mechanism that would go some way to both recognise the crime of genocide and demonstrate with actions our duty to prevent and punish such crimes.

As we have heard time and again, this amendment provides a mechanism, namely to acknowledge the genocidal intent of a state together with a prevention measure, by limiting trade with that state. This is a big ask. After all, trade is also a lifesaver for nations and for millions of people. However, in the absence of a mechanism, it is difficult to see how a state signatory to the Geneva conventions can fulfil its obligations. The record of UK action in fulfilling this obligation is by no means exemplary. The early warning signs in the case of the Rohingyas—which were pretty unmistakeable in that they included mass murder, torture, abuse, rape, violence, sexual violence and more, perpetrated by the military against a defined ethnic group—were first brought to the International Court of Justice not by the UK but by the Gambia.

Her Majesty’s Government place immense confidence in the international judicial bodies to respond to genocide, despite being given all the reasons not to. We would all like these bodies to pass muster, and one day, perhaps, they will. However, hope should not blind us to reality. Totalitarian states that hold the keys to the gates of the international judicial system will not deliver justice—certainly not when they themselves are the offenders. That is why this amendment is so important. It enables actions to be taken immediately to establish whether there is a case to answer, while the Government wait for the international bodies to make the determination.

Understandably, Amendment 9 cannot resolve all these issues, but it can address one. It can ensure that Her Majesty’s Government do not trade with states judged by our own High Court to be probable perpetrators of genocide and do not, therefore, become complicit in these acts. The amendment introduces a domestic mechanism for genocide determination in a very limited number of cases. The UK at least will be able to say that it did not wait to see any unspeakable horrors occur while doing nothing: it saw, and it acted.

[Baroness Primarolo (Lab) [V]]

My Lords, at this very late hour I will be as brief as I can, so that other Members waiting to speak can contribute as well and the House can perhaps get to vote on this crucial amendment at not too unreasonable an hour. I congratulate the noble Lord, Lord Alton, and my noble friend Lady Kennedy on their excellent introductions to Amendment 9. Much has already been said on this vital amendment. I will, therefore, make just a couple of very brief points.

First, as has been said, the amendment provides a means for the UK to live up to its commitments to protect against, prevent and punish the crime of genocide, as declared in our signing of the genocide convention. Unless this mechanism is established, we are in real danger of defaulting on these commitments by relying on means which, as noble Lords have eloquently illustrated this evening, can be unreliable in holding alleged perpetrators of genocide to account. Moreover, the amendment has the potential to have wide impact. It will ensure that victims of suspected genocide globally have a viable means to pursue a legal judgment on their case when all other avenues are blocked. As the noble Lord, Lord Cormack, said, if we are to be—in the words of the Prime Minister—global Britain, we need a moral compass that guides us.

By passing this amendment, the UK would send a clear signal to other states that it places its values at the centre of any trade deals, and that the international community must stand by its commitments to do all within its power to ensure that the evils of genocide are consigned to the history books. This amendment offers a route to achieving that. Today, we have a very rare opportunity to act on a matter of global and historic significance. I sincerely hope that noble Lords will support this amendment and start us on the long and difficult journey, identified by the noble and learned Lord, Lord Hope of Craighead, of putting meaning into its intentions. I will certainly be supporting it.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Noakes, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Cormack, referred to the genocide in Rwanda. When that happened, I was a graduate student writing on the European Parliament. I happened to be visiting a friend in Italy, and she had a visiting Catholic priest from Rwanda who said to me, “Please help”. I was in my 20s and I was involved in a political party, but I was not able to speak in a Parliament. I certainly could not go and stand in the European Parliament and try to effect change. But I always felt that there was something wrong and that there ought to be a way to deal with something that is called genocide without waiting for the UN Security Council to come to a decision, where it is always possible for one state alone to veto the idea of genocide.

Since arriving in your Lordships’ House, I, like other noble Lords, have heard the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, again and again raise the issue of genocide. From the Government Front Bench we always hear the same refrain: “We cannot do anything unless there is a legal ruling. There needs to be a judgment. Unless something is called genocide by a court, we cannot act.” As the noble Lord, Lord Forsyth, pointed out, this amendment will begin to effect that change. It is not court interference or damaging the separation of powers; it is enabling this House and the other place to remind the Government that there are times when it is vital to act.

Her Majesty’s Government, particularly the noble Lord, Lord Ahmad of Wimbledon, repeatedly tell us that there needs to be a legal case for us to talk about genocide. This amendment would allow that to happen. Surely it is time for the amendment to be passed, for the other place to be able to think about this and to take a lead. As the noble Baroness, Lady Kennedy of The Shaws, pointed out, this might be a novel act, but that is no reason not to make that act. Surely, if we want to play a role in the world, sometimes it is necessary to act first.

It is not about virtue signalling; as the noble Lord, Lord Alton, pointed out, it is about virtuous behaviour. Unlike the noble Baroness, Lady Noakes, I think there are times when one has to say that, however important trade is, some issues are more important. You cannot simply equate trade and the value of human life. This is about human life, and we must stand to be counted. I urge noble Lords to support this amendment.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow the powerful speech of the noble Baroness, Lady Smith of Newnham. I join many other noble Lords in thanking the noble Lords who tabled this amendment. I will be brief, because I want to ensure that as many Members of your Lordships’ House as possible have the chance to vote tonight. I must humbly associate myself with the highly powerful speech of the noble Baroness, Lady Kennedy of The Shaws, who made the crucial point about the international importance of our deliberations here tonight on this novel and innovative legal move.

This brings me to the first of the three points I would like to make. In discussing a previous group of amendments, the noble and learned Lord, Lord Hope of Craighead, said that the UK has been a leader for many decades in human rights developments. UK civil society, lawyers and campaign groups certainly have been, and Governments of various stripes have often been dragged along by those campaigners. That is what we are seeing here tonight: individuals in your Lordships’ House and campaign groups saying that we cannot tolerate the current situation and we have to act.

The noble Baroness, Lady O’Loan, referred to the Magnitsky sanctions—another new and powerful weapon in the human rights armoury, which has developed from the actions of US civil society and campaigners. I always like to highlight good news, and I think we can see in that pairing a real sign of good news. Although, as many noble Lords have commented, the international community and the United Nations have been inactive or unable to act in hideous case after hideous case of genocide, we are seeing new attempts, new approaches and new ways of ensuring action. That is why this is so important.

22:30

Secondly, I would like to respond to something that the noble Lord, Lord Lansley, said when discussing an earlier group of amendments. He questioned the role of the courts. The noble Lord, Lord Alton of Liverpool, has already delivered an effective rebuttal to that, but I want to make a further point. Human rights, as most people would probably agree, are universal, but that is often not the way that Governments, or even Parliaments, have acted. We have tended to use human rights as a stick to beat the people with whom we have other disputes and conflicts. For various reasons, we have quietly turned the other way when it is people who are our friends, or perhaps even people whom we saw as the enemy of our enemies and, therefore, as our friends. The nature of the courts is that they do not have that kind of bias; they have a universalist approach to judgment, which is exactly what we need with human rights.

Thirdly, we have heard many very strong arguments tonight about the moral case for this amendment and the previous group of amendments. That is enough on its own; it really should not need any more. However, there is a crucial point to be made: defending, speaking up for and creating a world in which there is more respect for human rights—as this amendment, which simply attempts to stop genocide, would do—makes the world safer and more stable and secure for everybody. Making this amendment is not just morally the right thing to do; it is also in our self-interest.

[Lord Lansley (Con)]

Contrary to my intention, I must intervene to correct what I regard as a mischaracterisation of my views. It was not my view, and not the view I expressed, that courts have no role: I entirely accept the proposition at the heart of this that courts will make a determination relating to whether a state has committed genocide. My point was that that being the case does not lead to the executive action that follows from it.

The noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Kennedy of The Shaws, said that the authority of the court would lead to the revocation of an international trade agreement. That is not what the amendment says. I am constantly being told in this debate that the amendment is precise—it is not precise. It does not say that; it says:

“International bilateral trade agreements are revoked”


by the action of the High Court. I object to the fact that a High Court determination leads directly to the revocation of the agreement entered into by the Government and endorsed by Parliament. If that determination takes place and we want to pass legislation, it should say that Ministers should act to revoke that international trade agreement in these circumstances, not that it is revoked automatically by the determination of the High Court itself.

[Baroness Meacher (CB)]

My Lords, I applaud my noble friend Lord Alton for tabling Amendment 9 and for all the work he does to promote justice on this most important of issues. I believe that everything that needs to be said has already been said very powerfully; the case is overwhelming. Personally, I hope that we can get on with the vote as soon as possible, and, therefore, I am abandoning my speech.

[Baroness Cox (CB) [V]]

My Lords, I rise to speak in favour of Amendment 9. In doing so, I return to an issue that I have raised in your Lordships’ House on numerous occasions. Recently, in the context of the Telecommunications Infrastructure (Leasehold Property) Bill, I spoke about the use of Uighur slave labour and the dangers of working with companies like Huawei, which are complicit in using slave labour and producing the Orwellian surveillance technology that locks up 1 million people, attempting to destroy their religious beliefs and culture. This point has been highlighted powerfully by many noble Lords.

In their policies, we can see many of the indicators that constitute genocide in the strict legal definition of that word. We can also see it in the treatment of Rohingya, Shan and Kachin people in Burma and the murder of thousands of Christians and many Muslims in Nigeria by Islamist militants. Last year, Her Majesty’s Government accepted recommendation 7 of the Bishop of Truro’s report, confirming that genocide determination is a matter for courts. Over the last year, Her Majesty’s Government have had opportunities to put this into practice and support the Gambia proceedings against Myanmar before the ICJ, but they chose to remain silent, monitoring. They cannot have it both ways, saying they are for courts but not doing anything to ensure that they are considering such issues.

My noble friend Lord Alton and I recently had a meeting with the International Criminal Court, trying to get international judicial action against those responsible for or complicit in the massacres in Nigeria. However, sadly, that system now lacks effectiveness, which is why we need a judicial route that can examine evidence and, if the evidence substantiates it, make a predetermination of genocide, which is precisely what Amendment 9 will enable us to do.

Just three weeks ago, I went on a harrowing visit to Armenia and Nagorno-Karabakh with HART, my small humanitarian charity. I saw videos of the beheading and torture of Armenians captured by Azerbaijan; some were filmed by the perpetrators on the Armenians’ own phones and sent back to their families to see the horrible things that had been perpetrated towards their loved ones. I also recorded many anguished eye-witness statements. I sent our report to the Foreign Secretary and will make a copy available in the Library of your Lordships’ House.

Last week, Human Rights Watch published a report that provided evidence of the torture and humiliation inflicted by Azerbaijan on Armenian prisoners of war. Genocide Watch has designated Azerbaijan as fulfilling all 10 criteria of genocide. In the genocide unleased against the Armenians more than a 100 years ago by the Ottoman Empire, an estimated 1.5 million Middle Eastern Christians—including Armenians, Greeks, Assyrians, Chaldeans, Syriacs, Arameans and Maronites —perished between 1915 and 1923. This genocide has received recognition by many countries, including Wales—all credit to Wales—but not the United Kingdom. At the time, the world was indifferent, which led Hitler, on 22 August 1939, infamously to say,

“Who, after all, speaks today of the annihilation of the Armenians?”


Hitler considered the Armenian “solution” a precedent for his atrocities against the Jews. We know all too well what that meant.

The Genocide Convention was the response to the horrific atrocities perpetrated by the Nazis against the Jews and was meant to signify the international commitment to “never again” by introducing duties to prevent, supress and punish the crime of genocide—duties that successive Governments have neglected for far too long. It is my passionate hope that the Armenians, who are, as we speak, suffering again from a genocide inflicted by Azerbaijan and Turkey, will receive the genocide recognition that is due, and that the violations of international law perpetrated by Azerbaijan and Turkey will not be allowed to pass with impunity.

In recent months, we have heard a lot about “taking back control”. As we already have control of our own courts, we should give them the first say in recognising this most serious of all crimes: genocide. Amendment 9 would provide such a mechanism to deal with the question of genocide determination. Having just returned from the harrowing experience of witnessing people suffer a genocide while we talk here this evening, I feel passionately that it is high time that we broke the gridlock of genocide determination. Amendment 9 would enable us to do that and I wholeheartedly support it.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, it is an honour to follow so many powerful speeches supporting this ground-breaking amendment, particularly that of my noble friend Lady Cox just now. We are 72 years on from the UN Convention on the Prevention and Punishment of the Crime of Genocide, yet we still fail to prevent, suppress and punish this horrific crime. By ignoring it, we are complicit. Of the 17 genocide alerts around the globe, 14 have reached mass extermination. I want briefly to focus chillingly on an area that affects my own profession, with some forced to participate under extreme threats.

In China, surgeons are accused of forced sterilisations and, most horrifically, forced organ-harvesting on a mass scale. It was Nazi doctors like Mengele who perpetrated atrocities, experimenting on innocent people; the list of their actions is sickening. They hid their horrors behind the excuse of medical and scientific advancement. Now, we see the same things happening.

What can be done? Considering China and many other countries’ powerful positions, as has been said in this debate, engaging the UN will fail. We therefore must strengthen our domestic mechanisms to fill the void left by international bodies. We cannot say that now is not the time: now is never a comfortable time and we must have the courage to do what is right. Amendment 9 is a step toward strengthening our domestic response to genocide. As the noble Baroness, Lady Kennedy of The Shaws, hopes, it could start a global movement towards zero tolerance of these depravities. It is the time for action. This amendment must be supported.

[Lord Polak (Con)]

I pay tribute to the movers of this amendment, in particular my noble friend Lord Alton—for he is my friend—for his tenacity and passion. On 29 October 2018, following the horrific attack at the Tree of Life synagogue in Pittsburgh, when 11 people were gunned down, I spoke in this Chamber and posed the question:

“Have we learned nothing from history?”


I went on to say that

“it is nice to stand shoulder to shoulder and offer sympathy, but it is action that is now required.”—[Official Report, 29/10/18; col. 1122.]

Amendment 9 gives us a chance to take action. Wringing our hands and mouthing nice words will deter no one.

Just three weeks ago, I paid tribute to Lord Sacks in this Chamber and was struck by how many noble Lords, from all parties and none and from all traditions and none, spoke of him with such affection and admiration. In rereading some of his writings, I came across a lecture from 17 February 2004, entitled “Never Again”—But Will We Ever Learn the Lessons of History? The lecture by Rabbi Sacks was at a national service taking place to mark the 10th anniversary of the genocide against the Tutsis in Rwanda, which he described as

“an almost unimaginable orgy of violence”

with people

“hacked to death by machetes … in a country where perpetrators and victims had previously lived together as neighbours”.

Rabbi Sacks continued by explaining that, the next day, 18 February 2004, was Yom HaShoah, the Holocaust memorial day in the Jewish calendar. He explained:

“Apart from attempted genocide, the Holocaust and Rwanda had two things in common. First, they were preceded by deliberate dehumanisation: the Jews were deemed ‘vermin’ or ‘lice’; the Tutsis were Inyenzi, ‘cockroaches’.”


As he put it:

“In this way mass murder could be justified as a kind of sterilisation, a necessary, if painful, operation to restore a nation to its health.”


The second similarity, he argued, was that

“both tragedies were known in advance. The international representatives who gathered at Evian … in 1938 knew that a terrible fate was about to overtake the Jews of Europe.”

Yet they each

“declared that they had no room for refugees… in Rwanda, in 1990 the main Hutu newspaper had issued its own equivalent”

of what he described as “the Nuremberg laws”. By 1992, over half a million machetes had been distributed. He went on:

“In 1993, an international commission gave warning”


that a potential genocide was imminent and the head of the UN peacekeeping force, in 1994,

“passed on a warning … that a mass extermination was being planned.”

As Rabbi Sacks sombrely acknowledged:

“Both times humanity hid its face.”


Amendment 9 is a straightforward, proportionate call to action. As my noble friend Lord Cormack said in his moving speech, it says that we simply cannot turn a blind eye, even in the interest of trade deals, when a state is guilty of genocide.

I know that it is late, but permit me to state very clearly my support for the campaign led by Andrew Mitchell MP. On 21 May 2020, he wrote an article, published in the Times, under the headline “Britain has a duty to bring genocide accused to justice”. He said:

“No fewer than five alleged Rwandan genocide perpetrators live in the UK”,


four of whom receive benefits. While the US, Canada, France, Belgium and Sweden, among others, have extradited those accused to face the Rwandan justice system, which abolished the death penalty more than 10 years ago, shockingly, we have not. Andrew Mitchell ended his words with the following:

“The souls of the slaughtered Tutsis cry out for justice but Britain has turned a deaf ear. We should all be ashamed.”


I call on the Government to deal swiftly with this matter, certainly before the next CHOGM, to be held in Kigali—the Rwandan capital—next summer.

Finally, on 23 September 2020, I said in this House that the treatment by the Chinese of Uighur Muslims was horrific, yet within days, as the noble Baroness, Lady Falkner, said, China was elected to sit on the United Nations Human Rights Council. We all witnessed the footage of Uighur people being herded on to trains and transported to camps. It is footage that is all too familiar. Many of us who have heard first-hand accounts of the depredations of the Nazi camps know how major industrial companies ruthlessly used the slave labour in those camps to produce their goods and to make their fortunes. Will it be a case of business as usual as companies profit from the blood, sweat and tears of today’s slave labour or are we prepared to do something about it?

Towards the end of his presentation, Rabbi Sacks said that people often asked: where was God in the Holocaust? He maintained that that was the wrong question; the real question was: where was man? He suggested that it sometimes appears that we have learned nothing, which is why memorials are necessary. Tonight, in this House we are confronted once again with the same question: where were we when we had the chance to act against those who are responsible for today’s most grievous crimes against humanity? For those who have said and will say that the Trade Bill is not the place for such an amendment, I say that I will not join with the hand-wringing and the mouthing of nice words brigade. I will join with those who vote for action by supporting this amendment and I urge all noble Lords to do likewise.

22:45

[Lord Purvis of Tweed (LD)]

My Lords, this has been a powerful debate and rightly so, given the seriousness of the issue. This Wednesday, 9 December, is the day that the United Nations will mark the adoption of the genocide convention. It is also the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. I wish to declare an interest in that I chair the UK board of Search for Common Ground, an international peacebuilding charity. Just before the lockdown I was in northern Iraq, where I have been more than 20 times, and Sudan, to which I have gone on many occasions. I have met the victims of the egregious crimes that have taken place in those two countries. Just last night, I was on an online video call with people in Baghdad who are still living with the situation from the north of Iraq which the noble Lord, Lord Alton, introduced. I commend his work in this House and the way that he introduced this group of amendments.

My noble friends Lady Northover and Lady Smith have indicated our support from these Benches and I need not repeat any of their arguments. We will work with the noble Lord and others, as indicated by the noble Lord, Lord Collins, in the previous group, to address some of the areas that have been referred to in the debate. For example, if it is a matter of the courts, which courts, and how do they interact with our treaties and agreements, both domestic and international? Would there have to be clauses and agreements, as the noble Baroness, Lady Kennedy, said, or is the noble and learned Lord, Lord Hope, correct in saying that mechanisms are already in place? This can be discussed and identified.

Also, is this to be linked purely with preferential terms, which the noble Lord, Lord Cormack, indicated, or is it for all trade, as has also been indicated? There are consequences for both of those issues, and yes, they have to be agreed—as well as the interaction between our domestic courts and the mechanisms, which has not been raised so much. Genocide is of course one of the crimes under the International Criminal Court, which is different from those which can be triggered by the genocide convention. How do they interact with each other? These are all issues that I agree can and should be resolved through discussions.

Finally, I want to repeat to the Government from these Benches a clear call for a trade and human rights policy statement where a UK framework of atrocity analysis which can be integrated into our trade policy is agreed. It should be something where officials in the DIT, the Foreign and Commonwealth and Development Office and BEIS should be able to see proper links between judicial measures, human rights measures, trade agreements and our trading relationships. In the absence of a proper framework with atrocity analysis, we will not be doing what I believe that all in this House want the UK to be, which is a leader in the world, not for deciding on the hierarchy of suffering but on preventing the worst excesses of human rights abuses. We need the structures and the frameworks in our legal and trading methods to allow us to do that and I hope that the Government will finally respond positively to this debate.

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the House for too long because I made my comments in the previous debate about my support and that of the Opposition for this amendment. I thank the noble Lord, Lord Alton, and particularly my noble friend Lady Kennedy of The Shaws for their interventions.

I will single out two contributions. One is that of the noble and learned Lord, Lord Hope, who has presented us with very clear arguments about why this argument should go to the Commons and why the Commons should consider it. The other is that of the noble Lord, Lord Forsyth, because he is right: we have to respond to the government mantra that we have heard so many times: “It has to go to a competent court”. If that is the response, then, as the noble Lord, Lord Forsyth, said, let the Commons decide. That is what this House can do tonight.

[Viscount Younger of Leckie (Con)]

My Lords, we have had a very long debate, and it is now my job to address the amendment in the name of the noble Lord, Lord Alton.

I have listened very carefully to the speech of the noble Lord, and noted that he has raised the subject of genocide—a heinous crime—more than 300 times, which is remarkable. I applaud his persistence and I wish that I could be the Minister to provide an answer—perhaps the 301st—that gives the necessary satisfaction to him, and to other distinguished noble Lords who have taken part in this very interesting debate. There have been some very moving and passionate speeches and we have had quotes from around the houses, ranging from Robbie Burns to—I should mention this—the very great, late Lord Sacks.

I do not advocate repeating the points made so eloquently by my noble friend Lord Grimstone in a previous group, so my remarks—I hope that the House will forgive me—are necessarily short. I will, however, quickly re-emphasise that the Government share wholeheartedly the concerns underpinning this amendment. My noble friend Lord Cormack referred to global Britain, as did a number of other Peers. The UK has also long supported the promotion of our values globally, and remains committed to its international obligations. We are clear that more trade does not have to come at the expense of human rights. This includes clauses in our trade agreements with many developing and emerging markets: suspensive powers in our trade preferences regime and recourse to trade levers through our sanctions policy.

The UK has played a leading international role in holding China to account for abuses, in particular those reported as taking place against the Uighur Muslims—which, again, was a theme during the debate this evening. We have led joint statements at the UN’s human rights bodies and underlined our concern directly to the Chinese authorities at senior levels. We have also repeatedly urged businesses that are involved in investing in Xinjiang or which have parts of their supply chain in the region, to conduct appropriate due diligence to satisfy themselves that their activities do not support any human rights violations or abuses. We have reinforced this message through engagement with businesses, industry groups and other stakeholders. Under the Modern Slavery Act the UK became the first country in the world to require businesses to report on how they are tackling modern slavery in their operations and supply chains.

This amendment seeks to give the High Court of England and Wales powers to revoke trade agreements where the court holds that another signatory to the relevant agreement has committed genocide. I was grateful to my noble friend Lord Lansley, who not only alluded to this in the last group but—as I know, though I came in slightly late—in this group too. He made some very helpful and interesting points. I listened carefully to all the speeches but, despite the very strong arguments that were presented by the noble Baronesses, Lady Kennedy and Lady Smith, and a few other noble Lords, the Government have serious concerns about this approach, some of which were touched on in the previous groups, as my noble friend Lord Grimstone iterated most strongly in his remarks.

The key point is that this would strike at the heart of the separation of powers in Britain’s constitutional system, allowing the High Court to frustrate trade agreements entered into by the Government and ratified after parliamentary scrutiny. The noble and learned Lord, Lord Hope, raised a point about the separation of powers and the role of the courts. The Government’s position has consistently been that only a competent court should make determinations of genocide, and this does not entail the courts having the power to revoke trade agreements. State genocide is very difficult to prove in the judicial context—the evidential threshold is very high, and proceedings tend to be long and costly but the amendment would make it simple to bring vexatious allegations of genocide to the court as a means of putting political and international pressure on the Government.

Perhaps I may take up a point raised, in part, by my noble friend Lord Cormack. I remind the House, a bit like a long-playing record, that the Bill focuses on continuity agreements, but I would like to say a word about our approach to free trade agreements. We do not see a choice between securing growth and investment for the UK and supporting human rights. Our experience is that political freedom and the rule of law are vital underpinnings for both prosperity and stability, and that by having a strong economic relationship with partners, we are able to have open discussions on a range of very difficult issues, including human rights. Despite our varying approach to agreements with partners, we will always have open discussions on a range of issues, including human rights.

As my noble friend Lord Grimstone said earlier, we have provided extensive information to Parliament on our negotiations, including publishing our objectives and economic scoping assessments prior to negotiations beginning. We continue to engage closely with the relevant scrutiny committees—namely, the International Trade Committee in the House of Commons and the International Agreements Sub-Committee in the House of Lords.

Just before I conclude, I want to say something about China, because many references were made to that country. I say at the outset—as noble Lords would expect me to say—that China is an important economic partner for the UK. UK/China trade is currently worth approximately £76 billion. China is our fourth-largest trading partner, the sixth-largest export market and the third-largest import market. Currently, we have no plans to commence free trade agreement negotiations with China. Having recently concluded an agreement with Japan, our current priorities, as my noble friend Lord Grimstone has said on many occasions, are the US, Australia and New Zealand, as economies more similar to our own. Looking ahead—again, as my noble friend has said—we are committed to seeking accession to the CPTPP.

I do not want to delay the House any longer and the hour is late. In the light of the legal difficulties and unintended consequences, I ask the noble Lord to withdraw his amendment.

[Lord Alton of Liverpool (CB)]

My Lords, I am grateful to the noble Viscount for his response to the debate. He would not expect me, though, to accept the tenor of his arguments, nor would the House expect me to speak at any length at the conclusion of this debate, because I know, as the noble Baroness, Lady Meacher, was right to remind us, that we would like to move to a vote.

Let me make just two points. Anyone who doubts the point of the House of Lords should read the speeches tomorrow in Hansard, because it has been a remarkable debate on all sides. Good, constructive points have been made, and people have quite rightly said no amendment is going to be perfect and any amendment can be refined and improved. That is the purpose of this place—it is the point of our existence. If we send this amendment to the House of Commons, it can continue to be worked on and those issues can easily be addressed.

During the debate, a number of noble Lords, including the noble Baroness, Lady Smith, and the noble Lord, Lord Polak, mentioned Rwanda. I visited the genocide sites in Rwanda; I went to a place called Murambi, where 56,000 people had been killed. I saw the skeletons of pregnant women with their children in what had been a college but had been turned into a memorial for victims of that violence. The noble Lord, Lord Hague of Richmond, as William Hague, our Foreign Secretary, spoke at the 20th anniversary of the Rwandan genocide, and he said:

“It is not enough to remember; we have a responsibility to act.”


It is not enough to remember. We have a responsibility to act.

During the Second World War, Dietrich Bonhoeffer, a renowned theologian, defied Hitler and the Reich. He was sentenced to death and executed. He famously said:

“Not to speak is to speak. Not to act is to act.”


Now is the time to act. I would like to test the opinion of the House.

23:01

Division 4

Ayes: 287

---

Labour: 122
Liberal Democrat: 73
Crossbench: 55
Conservative: 16
Independent: 14
Bishops: 3
Green Party: 1
Plaid Cymru: 1

Noes: 161

---

Conservative: 143
Crossbench: 6
Democratic Unionist Party: 5
Independent: 5
Labour: 1
Ulster Unionist Party: 1

23:13

Amendment 10 not moved.

[The Deputy Speaker (Lord Bates) (Con)]

My Lords, we now come to the group beginning with Amendment 11. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division should make that clear during the course of the debate.

Amendment 11

Moved by

[Baroness Thornton]

11: After Clause 2, insert the following new Clause—
“International trade agreements: health, care or publicly funded data processing services and IT systems in connection with the provision of health and care
(1) Regulations under section 2(1) may make provision for the purpose of implementing an international trade agreement only if the conditions in subsections (2), (3) and (4) are met in relation to the application of that agreement in any part of the United Kingdom.(2) The condition in this subsection is that no provision of that international trade agreement in any way undermines or restricts the ability of an appropriate authority—(a) to provide a comprehensive publicly funded health service free at the point of delivery,(b) to protect the employment rights or terms and conditions of employment for public sector employees and those working in publicly funded health or care sectors,(c) to regulate and maintain the quality and safety of health or care services,(d) to regulate and maintain the quality and safety of medicines and medical devices,(e) to regulate and control the pricing and reimbursement systems for the purchase of medicines or medical devices,(f) to provide health data processing services and IT systems for commissioners, analysts and clinicians in relation to patient data, public health data and publicly provided social care data relating to UK citizens, or(g) to regulate and maintain the level of protection afforded in relation to patient data, public health data and publicly provided social care data relating to UK citizens.(3) The condition in this subsection is that the agreement—(a) explicitly excludes application of any provision within that agreement to publicly funded health or care services,(b) explicitly excludes provision for any Investor-State Dispute Settlement (ISDS) clause that provides, or is related to, the delivery of public services, health care, care or public health,(c) explicitly excludes provision for any ISDS clause regarding data access and processing in relation to patient and public health data for the purposes of research, planning and innovation,(d) explicitly excludes the use of any negative listing, standstill or ratchet clause that provides, or is related to, the delivery of public services, health care, care or public health,(e) contains explicit recognition that an appropriate authority (within the meaning of section 4) has the right to enact policies, legislation and regulation which protect and promote health, public health, social care and public safety in health or care services, and (f) prohibits the sale of patient data, public health data and publicly provided social care data, except where all proceeds are explicitly ring-fenced for reinvestment in the UK’s health and care system.(4) The condition in this subsection is that the agreement explicitly allows, in the case of any traded algorithm or data-driven technology which could be deployed as a medical device, for the methodology for processing sensitive data to be independently audited or scrutinised for potential harm by an appropriate regulatory body in the United Kingdom where it relates to trade in medical algorithms, technology or devices.(5) For the purposes of this section—“negative listing” means a listing only of exceptions, exclusions or limits to commitments made by parties to the agreement;“ratchet” in relation to any provision in an agreement means any provision whereby a party, if (after the agreement has been ratified) it has unilaterally removed a barrier in an area where it had made a commitment before the agreement was ratified, may not reintroduce that barrier; and“standstill” in relation to any provision in an agreement means any provision by which parties list barriers which are in force at the time that they sign the agreement and undertake not to introduce any new barriers.”Member’s explanatory statement
This new Clause would aim to protect the NHS, health, care or publicly funded data processing services and IT systems in connection with the provision of health and care in other parts of the UK from any form of control from outside the UK through trade agreements.

[Baroness Thornton (Lab) [V]]

My Lords, this proposed new clause aims to protect the NHS health, care or publicly funded data processing services and IT systems in connection with the provision of health and care in parts of the UK from any form of control from outside the UK through trade agreements. We know that Parliament does not yet have adequate powers to guide and scrutinise trade negotiations, and the current process provides no legal mechanism to directly influence or permanently block trade agreements—hence the amendments which we have discussed in Committee and earlier today. I thank the noble Lords, Lord Patel and Lord Fox, for adding their names to this amendment, and particularly the noble Lord, Lord Freyberg, for merging his important amendment about NHS data with the one about the NHS and public health. These are national assets which must not be put in jeopardy or squandered in whatever the future holds for UK trade with the world.

I will be very brief, because it is late—it is shocking that we are having to discuss something so important so late. We know that this Bill could mean that the UK enters into trade agreements that have a significant impact on public health and the domestic healthcare sector without Parliament having any meaningful role in their scrutiny. In this time of great uncertainty—do we have a deal or not?—the Trade Bill is currently the only legislative vehicle for Parliament’s oversight of trade negotiations. As a result, additional scrutiny mechanisms are vital to protect the NHS and public health as the UK begins to negotiate independent free trade agreements in earnest. These trade agreements could enhance health, if controls are put in place to ensure economic gain is not given priority over health, but they also have the potential to negatively impact upon health services. While the Government have repeatedly pledged that the NHS is not on the table in trade negotiations, we know that there have been detailed conversations between UK and US negotiators, revealing that health services have been discussed and that the US is probing the UK’s health insurance system and has made clear its desire for the UK to change its drug pricing mechanism.

I invite the Minister to accept this amendment so that the Government can proceed with their trade negotiations confident that Parliament has expressed its clear intention. I will not go through the detailed parts of this clause, because they are rather well drafted and completely clear in what they aim to do. There must be clear provisions on digital trade, where this affects health services. There must be clear exemptions for all health-related technology, as well as more transparency about digital provisions in trade deals. The noble Lords, Lord Freyberg and Lord Clement-Jones, will more than adequately explain those data issues, but we must remind ourselves that the NHS has longitudinal data the like of which exists in no other health system in the world. It is a huge asset from which the NHS and the British taxpayer should benefit. Does the Minister agree? I beg to move.

[Lord Freyberg (CB)]

My Lords, I am delighted to follow the noble Baroness, Lady Thornton, and congratulate her on her excellent and persuasive speech. I am pleased to contribute to consideration on Report of the Trade Bill and to speak to the new Amendment 11.

There is some question as to the status of new and enhanced digital trade provisions in replacement deals, such as the CEPA signed by the UK and Japan in September, and those promised next year in relation to the UK’s CETA with Canada, which are said to expand pre-existing agreements. These provisions have implications for health and care in the UK and warrant further discussion, despite the advice note issued by the Minister’s department on Friday—hence my decision to press the issues which I raised in Committee.

Amendment 11 would safeguard state control of policy-making and the use of publicly funded health and care data. This capability is of vital importance in the context of the pandemic, but it should be guaranteed in perpetuity, since it underpins the efficient and effective operation of publicly funded health and care services in the UK, as well as those data-driven health services managed at present by, for example, Public Health England and the Joint Biosecurity Centre. It also amounts to a significant national asset or resource with the potential to function as a dynamo in relation to research, innovation and continued growth of the UK’s life sciences, health and care tech sectors. The Trade Bill should recognise this and incorporate explicit provisions preventing the outsourcing of digital infrastructure that is critical to the nation’s health and wealth and, by implication, the loss of skilled personnel working in data analytics to support core health and care functions alongside research and development activity.

Agreement to Amendment 11 would also safeguard the state’s ability to regulate and maintain the level of protection afforded to health and care data relating to UK citizens. The Government seek to champion the free flow of data; this is writ large in the CEPA as well as in their recently issued advice notes on the subject. I am also mindful that the CEPA does not in itself change UK data protection laws. However, the Government should consider how the Trade Bill and enhanced provisions in rollover trade agreements could contribute to, or detract from, the public’s perception of their trustworthiness and accountability in relation to health and care data usage by third parties. After all, informed consent is the foundation on which UK GDPR is based.

The Government have stated that the CEPA deal

“removes unjustified barriers to data flows to ensure UK companies can access the Japanese market and provide digital services. It does this by limiting the ability for governments to put in place unjustified rules that prevent data from flowing and create barriers to trade.”

Does the Minister consider restrictions on the free flow of, for example, genomic and biometric data about citizens justifiable or not? Would he not, for example, consider it helpful to commit to data localisation or minimum cybersecurity standards to safeguard certain types of sensitive personal data? Having entered into the CEPA with Japan, are the Government now unable to insist on such rules? In putting my name to this amendment, I am concerned to ensure that the Government have not already tied the hands of policymakers and regulators, including the Information Commissioner.

Agreement to subsection (3)(c) in the proposed new clause inserted by Amendment 11 would prevent the introduction of any ISDS clause regarding data access and processing in relation to health data to a rollover or enhanced trade agreement. The Government continue to invest significant funds in research and development and are committed to leveraging private investment to propel the UK’s R&D effort. I feel sure—in fact, I will wager—that securing foreign direct investment in health and care data will be a feature of their trade negotiation strategy. However, in the interests of guaranteeing value for taxpayers’ money, the Government should not find themselves in a position where they are at risk of legal action from their trading partners or multinationals if, for example, they want to offer discounted access to health and care data assets for UK SMEs to stimulate homegrown economic development or invest to create employment opportunities in deprived communities in relation to the clean-up or curation of health and care data.

The Minister remarked in an earlier reply to me that ISDS provisions do not feature in the rollover trade agreements with which this Bill is primarily concerned. I also think I am right in saying that, rather than opting for ISDS in negotiating the CEPA, the Government agreed with Japan that the agreement would be subject to the World Trade Organization’s Dispute Settlement Body. That is not to say that other rollover agreements still to be finalised will not incorporate reference to ISDS, and nor do I profess a preference for reliance on the WTO’s dispute settlement body vis-à-vis claims that might arise in relation to government decisions on health and care data, since the UK will pose a less significant risk to those claimants who may be backed by big tech once separated from the European Union in earnest. I therefore stand by the amendment, which would prevent such claims arising in the first place.

Agreement to subsection (3)(f) of Amendment 11 reads across to a topic that I have spoken about on many occasions in this place: namely, the value of healthcare data. There is widespread recognition that the NHS uniquely controls nationwide longitudinal healthcare data, which has the potential to generate clinical, social and economic development as well as commercial value. The Government should take steps to protect and harness the value of that data and, in the context of the Trade Bill, ensure that the public can be satisfied that that value will be safeguarded and, where appropriate, ring-fenced and reinvested in the UK’s health and care system. The Government have stated that the UK-Japan deal includes agreement to encourage

“the release of anonymised government datasets where appropriate”

because public access to government datasets creates opportunities for innovative British businesses. Once again, the trade deal cuts both ways; I do not believe that the general public support a “great health data giveaway” of benefit to companies headquartered and paying taxes overseas.

Finally, conscious of time, I encourage the Minister to reflect upon my contribution to the discussion of the Medicines and Medical Devices Bill in Committee, and the helpful response of the noble Baroness, Lady Penn, which confirmed that the Government mean to undertake a review of pertinent regulations over the coming year, including the definition of a medical device and the regulation of algorithms and artificial intelligence in pertinent tools and innovations. I am concerned that the effect of provisions in some trade agreements could be to reduce access to the algorithms that underpin them.

None can doubt the need to prioritise the safety of the public as new treatments and technologies are developed in the face of the Covid-19 pandemic and traded under both existing and new agreements that the Government might enter into with other countries. Yet, according to the Government’s advice note published on 4 November, the CEPA entered into by the UK and Japan will prevent the forced transfer of algorithms. The Trade Bill should contain up-to-date provisions to guarantee patient safety against this backdrop because it is unclear whether Article 8.3 of the CEPA—which provides a general exemption for measures deemed necessary to protect human health—would override provisions concerning the forced transfer of algorithms. Agreement to subsection (4) of Amendment 11 would have that effect.

I am passionate about harnessing the value of health and care data that is generated by, with and about UK citizens. The Government should, however, take note of those protections to which I have put my name in supporting Amendment 11; these are designed to maintain public confidence in our brave, new, data-driven world.

[Baroness Sheehan (LD) [V]]

My Lords, Amendment 43 in my name provides for safeguards to trade agreements to ensure affordable access to medicines for all. I thank my noble friend Lord Purvis of Tweed and the noble Lord, Lord Alton, for adding their names. I express my support for Amendment 11 in the names of the noble Baroness, Lady Thornton, the noble Lords, Lord Freyberg and Lord Patel, and my noble friend Lord Fox. It dovetails nicely with my Amendment 43 in seeking to protect the NHS and connected services from control through free trade agreements; Amendment 43 seeks to affirm fair access to affordable medicines for international agreements to which the UK is already a party.

The monopoly system created by the pharmaceutical business model is entrenched globally through the WTO’s 1995 TRIPS agreement—the Agreement on Trade-Related Aspects of International Property Rights. Included within it are provisions to safeguard public health. However, concerns about affordable medicines in developing countries, particularly access to antiretroviral drugs in the face of the HIV/AIDS epidemic, led to the Doha declaration in 2001. These identified options open for Governments to address public health needs, which are known as flexibilities. The importance of such flexibilities was highlighted by their inclusion in the UN’s sustainable development goals.

However, despite these safeguards, the misuse and abuse of these monopoly rights continue and are taking precedence over human rights in all countries of the world, not just developing ones. The NHS’s spiralling drugs bill led even the Health Secretary, Matt Hancock, to protest that pharmaceutical companies are “ripping off taxpayers”. I have no objection to profit-making by companies, but I object vehemently to people suffering and dying needlessly under the NHS because of quite obscene profit-taking by pharmaceutical companies, as happened with Vertex’s cystic fibrosis drug Orkambi. In South Africa, private health companies are charging $39,000—an obscene amount—for Trastuzumab, a WHO essential drug to treat breast cancer. This is a human rights issue.

23:30

If accepted by the Government, my amendment would be a powerful statement and signal to the world our intent to uphold our principles and values when trading abroad, very much in keeping with modern trade agreements that nudge us towards a more progressive trading environment. This issue becomes even more urgent with the emergence of vaccines for Covid-19. Only one vaccine, from Pfizer-BioNTech, has been granted regulatory approval at the moment. It has to be kept at -70 degrees centigrade and presents huge logistical challenges. We have ordered enough for about 20 million people but it is already clear that we must wait in line. Supplies in the numbers that we need are not forthcoming quickly enough. The Oxford-AstraZeneca vaccine, once regulated, will help us here in the UK enormously but only if we can ramp up its manufacture as planned. However, we are dependent on international supply chains for getting all the necessary materials in the right place at the right time, and this will be no easy task with Brexit, deal or no deal.

I say all this because it is patently in our interests—and the world’s—to support the proposal by South Africa and India to waive unhelpful parts of the TRIPS agreement so that know-how, data and materials can be readily shared and the world can collaborate in getting the right vaccine to the right people as quickly as possible. The science community collaborated to develop vaccines in superhuman time. The billions of pounds of public money helped, of course, but it is now the turn of politicians to do likewise and remove political barriers to rolling out vaccines. The South African and Indian waiver proposal has been welcomed by the WHO. Next year, the UK will host the G7, and health will be top of the agenda. If we do not support the waiver, what will our position be on ramping up the supply of vaccines? Past experience has shown that it will be foolhardy to rely on the goodwill of pharmaceutical companies. Will the Minister make the case for supporting the waiver proposal at the WTO TRIPS council meeting coming up later this week, on Thursday 10 December?

I will not be putting my amendment to a vote. However, its main points will be brought back when this House debates the Medicines and Medical Devices Bill on Report.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Sheehan. I support her Amendment 43 and share her concerns about big pharma, although I would go further and suggest that the profit motive should have no place in healthcare. Chiefly, I will offer three brief paragraphs in support of the cross-party Amendment 11, so ably introduced by the noble Baroness, Lady Thornton.

Looking at the excellent UNISON briefing on this amendment, I was taken back, as was the noble Lord, Lord Freyberg, to the Committee debate on the Medicines and Medical Devices Bill, in which we were discussing the place of artificial intelligence and big data in care and, of course, the dreaded algorithms. Clearly, this will be a fast-growing area of care, needing careful monitoring and democratic oversight, which is what this amendment seeks to achieve. What is decided by Parliament must not be undermined or overturned by free trade agreements. As the medicines Bill debate highlighted, these are big issues and there are huge issues around discrimination and potential misuse—accidental or otherwise—of the data, the algorithms and the whole approach.

I wish briefly to point noble Lords to the case of Henrietta Lacks in the US, including the treatment of her cells, the treatment of her data and the destruction of her privacy. It is an experience that surely should be studied as we face the loss of the protection of GDPR, as there remains uncertainty about the plans for WTO e-commerce rules and as there is grave concern about the way in which the UK-Japan agreement undermines UK domestic digital and AI regulation in healthcare services.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to the health data aspects of Amendment 11, which has been mentioned and was so well introduced by the noble Baroness, Lady Thornton, and the noble Lord, Lord Freyberg. I would add to the point of the noble Baroness, Lady Thornton: I join her in deploring the fact that we are debating this group of amendments, which are so important in this area, impacting on the NHS, at this late hour.

NHS data is a precious commodity, especially given the many transactions between technology, telecoms and pharma companies concerned with NHS data. In a recent report, EY estimated that the value of NHS data could be around £10 billion a year in the benefit delivered. The Department of Health and Social Care is preparing to publish its national health and care data strategy in the new year, in which it is expected to prioritise the

“safe, effective and ethical use of data-driven technologies, such as artificial intelligence, to deliver fairer health outcomes.”

Health professionals have strongly argued that free trade deals risk compromising the safe storage and processing of NHS data.

Through this amendment, the objective is to ensure that the NHS—not US big tech companies and drug giants—reaps the benefit of all this data. This is especially important given what the Ada Lovelace Institute called in its report—The Data Will See You Now—the “datafication” of health, which, it says, has profound consequences for who can access data about health, on how we practically and legally define health data and on our relationship with our own well-being and the healthcare system. Health information can now be inferred from non-health data, and data about health can be used for purposes beyond healthcare. So harnessing the value of healthcare data must be allied with ensuring that adequate protections are put in place in trade agreements if that value is not to be given or traded away.

There is also the need for data adequacy to ensure that personal data transfers to third countries outside the EU are protected in line with the principles of the GDPR. Watering down the UK’s data protection legislation will only reduce the chances of receiving an adequacy decision. There is also a concern that the proposed National Data Strategy will lead to the weakening of data protection legislation, just as it becomes ever more necessary for securing citizens’ rights. There should, however, be no conflict between good data governance, economic growth and better government through the effective use of data.

The section of the final impact assessment of the Comprehensive Economic Partnership Agreement—CEPA—between the UK and Japan on digital trade provisions says that the agreement contains:

“Commitments to uphold world-leading standards of protection for individuals’ personal data, in line with the UK’s Data Protection Act 2018, when data is being transferred across borders. This ensures that both consumer and business data can flow across borders in a safe and secure manner.”


The Department for International Trade, as mentioned by the noble Lord, Lord Freyberg, issued a document headed “UK-JP CEPA—a good deal for data protection”. However, the agreement has Article 8.3, which appears to provide a general exception for data flows, where this is

“necessary to protect public security or public morals or to maintain public order”

or

“to protect human, animal or plant life or health”.

The question has been raised of whether this will override data protections and what its impact will be on access to source codes and algorithms. There is also the question of the combined effect of Article 8.84, on the free flow of data, which provides that:

“A Party shall not prohibit or restrict the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.”


Article 8.80, on personal information protection, says:

“Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes.”


It is all very well making reassuring noises, but what public legal analysis of the language in the relevant articles—and how advocacy will be permitted despite this—are the Government going to provide? Why, for instance, are these articles included, which the EU for its part will not sign up to? Unless the Government do this, there will be zero trust in future trade deals, especially regarding the US.

To date, there have been shortcomings in the sharing of data between various parts of the health service, care sector and Civil Service. The development of the Covid-19 app and the way the Government have procured contracts with the private sector for data management have not improved public trust in their approach to data use. There is also the danger that the UK will fall behind Europe and the rest of the world unless it takes back control of its data and begins to invest in its own cloud capabilities. Specifically, we need to ensure genuine sovereignty of NHS data and that it is monetised in a safe way, focused on benefiting the NHS and our citizens.

With a new national data strategy in the offing, the Government can maximise the opportunities afforded by the collection of data and position the UK as a leader in data capability and protection. As Future Care Capital says in its briefing on the Bill:

“Any proceeds from data collaborations that the Government agrees to, integral to any ‘replacement’ or ‘new’ trade deals, should be ring-fenced for reinvestment in the health and care system, pursuant with FCC’s long-standing call to establish a Sovereign Health Fund.”


This is an extremely attractive concept. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator. That is why, as part of the new trade legislation being put in place, clear safeguards are needed to ensure that in trade deals, our publicly held data is safe from exploitation, except as determined by our own Government’s democratically taken decisions.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I refer to my entry in the register. This is a particularly important group of amendments, on health and the protection of data. I thank the noble Baronesses, Lady Thornton and Lady Sheehan, and the noble Lord, Lord Freyberg, for introducing them.

I will limit my remarks to the specific issue of data, which will be relevant to the recently reached super-agreement with Japan. It was discussed as recently as last week, when my noble friend Lord Grimstone spoke about the importance—I agree with him—of a greater exchange of data flows, particularly from that agreement. However, as the noble Lord, Lord Freyberg, said, it is extremely important, as set out in Amendment 11, to protect this data. I will give one example. The Government have been heavily dependent on vaccine trials for the three vaccines that are coming out. Would people readily submit to such trials and completing confidential surveys if there was any doubt that the data they submit would be treated confidentially?

If my noble friend Lord Younger of Leckie is not minded to support this amendment, will the Government table their own amendment to ensure the greater protection of data processing services?

23:45

[Lord Patel (CB) [V]]

My Lords, I speak strongly in support of Amendment 11, in the name of the noble Baroness, Lady Thornton. The hour is late, and we spent a long time discussing the matter in Committee. The noble Baroness, Lady Thornton, and others have dealt with the subject in detail and eloquently. Hence, I will be brief, as the last speaker before the Front-Bench speakers.

No matter what the Government say about the NHS not being on the table for any trade negotiations with the USA, it is naive to think that that will be so. Members of the US Congress and big pharma have made it clear that they expect the NHS to be part of any negotiation of a United States trade deal. In fact, the chair of the Senate finance committee—a committee that will have a final say in any trade deal that will be made—said that it is clear that all goods and services are part of the negotiation and, furthermore, that the NHS would benefit from competition from US companies. US big pharma has always complained that the UK, with its regulatory and medicines pricing regime, does not pay full price for medicines. It has even suggested that, as a result, US patients end up paying a higher price.

The US data and tech firms see an opportunity in our NHS patients’ records to develop patient management platforms and an opportunity to conduct clinical trials on cohorts of stratified patient and much more. I can quote an example: the company Palantir that has been involved in data mining and in security and intelligence. It was given a contract for the price of £1, at the beginning of the pandemic in March, to develop a platform for Covid-19 data. The contract was to be re-examined three months later. It was extended briefly and now I gather that, without any public debate, it has been granted a contract for five more years. Why would a data mining company be interested in having data related to health and health management? The answer is quite obvious: data is gold. In the absence of any government policy in relation to security and governance of health and patient data, it is an open goal for tech companies.

As I mentioned in Committee, several US firms are already involved in managing services worth billions of pounds. The prize for running services and exploiting patient and service-based data will be worth tens of billions of pounds. In market-driven self-service, the losers will be the patients and taxpayers.

Recently, it was reported that there was a meeting, organised by the Office for Life Sciences, between NHS England and big pharma and big tech with the intention to digitise and use the data of tens of millions of patients. Such an exercise would cost billions of pounds, which might be funded by the tech firms, but there was discussion about who would hold the IP. The risk we run, not only concerning data but also about how the services are managed in the NHS, is that they will be given to overseas companies, particularly American companies, that will benefit and profit from it. The NHS will be the loser, and therefore I strongly support this amendment.

[Lord Fox (LD)]

My Lords, this has been necessarily a short debate, but it has been an incredibly high quality debate. We have heard, from all the speakers, a high level of understanding of the issue and the dangers that Amendment 11 is seeking to address. I speak as one of those who signed Amendment 11. I support Amendment 43 and congratulate my noble friend Lady Sheehan on her eloquent presentation, but I am going to focus on Amendment 11 because it is a really important issue. We heard a lot about data from people who know a lot about data.

Sitting above this is the fact that the Government have no published cross-border data transfer policy. Without that, it seems as though each trade deal will be a series of negotiations without a framework. The noble Lord, Lord Freyberg, and my noble friend Lord Clement-Jones set out the benefits of having constraints and frameworks for this. It is clear from the Japan trade deal that the Government have indicated a level of flexibility around data. Once that has been delivered for one trade deal, it becomes a necessity for the next—and a bit more and a bit more. Even if that is not what will happen, I am sure the Minister understands that this fuels the fires of people’s suspicion and concern about the way in which data is being treated in this country.

From his position of great knowledge, the noble Lord, Lord Patel, set out some specific examples—not of a trade deal but of trade in this country—where data is already being parlayed. One things that has not been said is that, for patients to consent to their data being used, they have to believe that there will be a benefit. They do not want that benefit to flow across these borders through trade; they want it to accrue to the NHS. That is why Amendment 11 is important, and why I hope that it goes to a vote shortly and gets the support of Members from these Benches and beyond.

The noble Baroness, Lady Thornton, spoke very clearly in moving this amendment. Like me, she recognises the benefits of trade, but only when health takes the central place in our trade policy. That is what Amendment 11 seeks to achieve.

[Viscount Younger of Leckie (Con)]

My Lords, I will now address Amendment 11, tabled by the noble Lords, Lord Freyberg, Lord Patel and Lord Fox, alongside the noble Baroness, Lady Thornton. This amendment would place a range of restrictions on the regulations that we can make to implement continuity agreements. I will be relatively brief and will write to all noble Lords who asked questions to be sure that they are answered.

New subsection (2), proposed by this amendment, stipulates that regulations can be made only using Clause 2 of the Trade Bill if the agreement does not undermine the way in which the NHS is delivered, operated or regulated, but we believe that the conditions set out in subsection (2) are unnecessary. We have demonstrated time and again that we are not selling off the NHS, and this will not change.

I listened carefully to the remarks of the noble Lord, Lord Freyberg. In response, the Government are clear that health and care data should only ever be used or shared where it is used lawfully, treated with respect and is held securely, with the right safeguards in place.

The conditions set out in proposed new subsection (3) would defeat the purpose of having a Clause 2 power. It stipulates that no agreement can be implemented through Clause 2 regulations, unless it contains a range of explicit exclusions and inclusions in the text of the agreement. Importantly, this would effectively prohibit the implementation via Clause 2 of any continuity trade agreement that the Government have signed, which does not explicitly meet these requirements, even though this amendment did not exist at the time of their negotiation. Every single continuity agreement that we have negotiated over the past three years would be left null and void, without an implementing power. We would be forced to reopen negotiations with every single continuity partner, which would no doubt be used to extract costly concessions.

Rigorous protections for public services can be achieved in both positive and negative lists in services and investment schedules for FTAs. The sectoral commitments outlined in a schedule are only one part of a tapestry of protections for public services, which can also include scope exclusions and exceptions set out elsewhere in the FTA. The UK is party to agreements that use both positive and negative lists, and neither outcome has interfered with the Government’s right to regulate and ability to protect public services.

This amendment would also place a new requirement for exclusions on the sale of patient data—another condition that was not in place at the time of negotiation. There are already strict legal, privacy and security controls on how companies can use patient data, including principles set out by the National Data Guardian and the common law of confidentiality. We have clearly set out our principles governing data-sharing agreements entered into by NHS organisations, published in July 2019.

Finally, subsection (4) of this amendment stipulates that regulations can be made using Clause 2 of the Trade Bill only if they allow for the scrutiny of

“medical algorithms, technology or devices”

with respect to their

“methodology for processing sensitive data”.

I reassure your Lordships that before any medical device can be placed on the UK market it must be compliant with the Medical Devices Regulations 2002, which cannot be superseded by a trade negotiation without further legislation.

I now turn, quickly, to Amendment 43, proposed by the noble Baroness, Lady Sheehan, and the noble Lords, Lord Purvis of Tweed and Lord Alton of Liverpool. It would mean that the commencement power in Clause 32 could be used only to commence the substantive provisions of the Trade Bill if they do not restrict UK citizens’ access to medicines, if they do not curtail the Government’s power to use the safeguard provisions of the agreement on trade-related aspects of intellectual property rights, if they do not delay the market entry of lower-priced generic health technologies and if they do not lower the bar for patentability. Similar to Amendment 11, it also seeks to exclude health-related matters from the scope of ISDS provisions.

I also note that the voluntary scheme for branded medicines pricing and access—the so-called VPAS—which is the latest voluntary pricing scheme negotiated with industry, will continue to control the prices of branded medicines and their cost to the NHS. The VPAS runs in conjunction with the statutory pricing scheme, NHS England and NHS Improvement commercial arrangements, and the process for NICE appraisals. The 2019 VPAS will run until 2023 and, through a series of measures, supports patient access to innovative new medicines.

Furthermore, the UK remains committed to the Doha declaration on the TRIPS agreement and public health, which recognises the right to public health and the importance of intellectual property protection, while noting that the flexibilities contained in the IP system can be enacted to address public health needs. In addition to our commitment to our international obligations, we will also be bound by IP provisions designed to facilitate public health that are enshrined in domestic law. For example, the Patents Act 1977 provides for compulsory licensing in the unlikely circumstances that this is required. With that, I ask noble Lords not to press their amendments.

[Baroness Thornton (Lab) [V]]

My Lords, I thank noble Lords very much for the support that the amendment has received from across the House. I listened carefully to the Minister but was not at all convinced by what he had to say. It seemed to boil down to two things. The first was that nothing should change because you might have to change other agreements—which is clearly nonsense in this day of technology. Secondly, if the Minister really cared about the NHS and data protection, the Government should write their own amendments to the Bill, instead of having the rest of the House do it for them. On that basis, I wish to test the opinion of the House.

[The Deputy Speaker (Lord Bates) (Con)]

My Lords, I shall now put the Question. We have heard from a Member speaking remotely that they wish to divide the House in support of the amendment and I will take that into account. The Question is that Amendment 11 be agreed to.

23:58

Division 5

Ayes: 232

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Labour: 117
Liberal Democrat: 70
Crossbench: 28
Independent: 9
Democratic Unionist Party: 4
Green Party: 1
Plaid Cymru: 1

Noes: 143

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Conservative: 135
Crossbench: 5
Independent: 2
Ulster Unionist Party: 1

Consideration on Report adjourned.