National Security and Investment Bill

Baroness Fookes Excerpts

Committee stage
Tuesday 16th March 2021 Lords Chamber

Schedule 2 agreed.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, that concludes proceedings on the Bill.

House resumed.

Vauxhall at Ellesmere Port and Battery Manufacturing Strategy

Baroness Fookes Excerpts

Tuesday 2nd March 2021 Lords Chamber

[Lord Callanan (Con)]

A bid from Coventry, bids from the north-west, a bid from the Wirral as well—we totally understand that. The noble Lord will understand that these are commercial decisions. We are willing to stand behind companies and help them develop their proposals, but there are a number of exciting proposals in different parts of the country. I have outlined the financial support that is available. With regard to the future of Vauxhall, or Stellantis as it now is, we are in discussions with it; my right honourable friend the Secretary of State has had a number of meetings with it, and senior officials are meeting it. Those discussions remain confidential at the moment but we are doing all that we can to assist.

[The Deputy Speaker (Baroness Fookes) (Con)]

All supplementary questions have been asked.

United Kingdom Internal Market Bill

Baroness Fookes Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

Lastly, I will address the question put by the noble Lord, Lord Purvis, on the Isle of Man. Goods coming from the Isle of Man are not treated as imports for customs purposes. Therefore, the Government make clear, in Part 1, that goods coming from the Isle of Man count as “imported into” for the purposes of market access principles. We do not believe that this is necessary for services. In summary, for all the reasons that I have set out in great detail, we cannot accept any of the amendments tabled. I therefore hope that noble Lords will withdraw or not move them.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have had a request to speak after the Minister from the noble Lord, Lord Purvis of Tweed.

[Lord Purvis of Tweed (LD)]

The Minister did not explain why services from the Isle of Man to the rest of the United Kingdom will be considered within the United Kingdom internal market, but goods coming from the Isle of Man are outside the single market. There are many service providers from the Isle of Man. In fact, financial services are probably a bigger part of the Isle of Man economy than goods for export. I would be grateful if the Minister could explain this. The Minister did not respond to my point about whether these regulations apply to the services that citizens receive for higher education. This is very important within Scotland.

My point to the Minister, I believe, justifies my argument on the good working relationship across the four nations on fertilisers and pesticides. The Minister referenced the justification for the government amendment about the need to work in emergencies. Paragraph 1 of Schedule 1 already has exclusions from market access principles for threats to human, animal and plant health. Emergencies were already covered. The amendment that the Government brought forward was not on emergencies; I looked at the regulations that it covers, which are in paragraph 9 of Schedule 1 on fertilisers and pesticides. The Bill will allow the Scottish Government, and a Welsh Government or UK Government acting for England, to make a different judgment on the advice they get from the single regulator about the safety of a pesticide for, as the Minister Paul Scully said, “movement and use”.

So, if English farmers, under the authority of the regulations in the Bill, decide to use fertilisers on crops—barley—that are unsafe in the view of the Scottish Government, the Bill will allow the Scottish Government to prevent that barley from being used in Scottish distilleries. The Minister said that the whole purpose of the Bill was to prevent that from arising. So he has managed to undermine the entire intent of his argument at Second Reading, which was that the purpose of this legislation was to prevent a barrier from a different decision being made on safety grounds. If this amendment, which the Government brought forward, allows for different decisions to be made on the safety of pesticides used in different parts of the UK, I hope the Minister will reflect on what he said about the justification for the Bill.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have had a further request to speak after the Minister from the noble Baroness, Lady McIntosh of Pickering.

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

My Lords, I am struggling to understand the Minister’s reply on Amendments 26 and 45. I am particularly concerned about Amendment 26, which is a probing amendment and simply asks for greater clarity, which I do not think we have had. Is he saying that the statutory requirement has no effect? Does he mean that it is valid or not? Is it enforceable? I am trying to avoid a situation where there is any doubt whatever, and court action might be taken. I do not quite understand his answer that the possibility of court action is excluded if, in the view of others, a statutory requirement has effect and could, therefore, be actionable.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to the group beginning with Amendment 9. I again remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make this clear in debate.

Clause 3: Relevant requirements for the purposes of section 2

Amendment 9

Moved by

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[Lord Callanan (Con)]

My Lords, I apologise to noble Lords for hesitating in my answer earlier. There is a danger of this “tin of biscuits” example assuming the same significance that the maiden aunts of the noble Lord, Lord Lisvane, did, during the EU withdrawal Bills. I see smiles from noble Lords who were involved in those debates. However, I am not sure that we should pursue the “pig semen” argument of the noble Lord, Lord Stevenson.

To answer my noble friend Lady McIntosh, these are technical changes relating to drafting errors that became apparent in further studying the text following amendments tabled by noble Lords. Following further examination by government lawyers, the Bill was drafted fairly speedily over the summer. Our intention was to avoid government amendments, but we wanted to hear the replies to the consultation and the White Paper. They are technical and legal clarifications that change none of the policy intent.

I assure the noble Lord, Lord Purvis, that the minimum unit alcohol pricing policy is unaffected, because it is an existing measure that is excluded, and because it is specifically excluded in addition to that, via various clauses. I will write to reassure him of that. Regarding his points about gin and vodka, I am not an expert on the Scottish measure, but I think it affects the retail price of the sale and not wholesale prices, and therefore the product would need to be sold at a different price, as specified in the Scottish measure. However, I consulted officials when we first debated this legislation and was assured that the Scottish measure would be unaffected by this legislation. I am happy to write reassuring the noble Lord on that point.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received a request from the noble Baroness, Lady McIntosh of Pickering, to speak after the Minister. My apologies; I gather that is not the case.

Amendment 9 agreed.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to the group beginning with Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press anything in this group to a Division should make that clear in the debate.

Amendment 12

Moved by

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

My Lords, it is a pleasure to follow the noble Baroness, Lady Andrews. I am not a member of the Delegated Powers Committee and never have been, so I think I can, without any embarrassment, praise the work which that committee does so often on behalf of the House and, in particular, the reports it has made in respect of the Bill we are considering today. The issue which it raises, of course, is a very serious one, and it has been very well explained in its own report and spoken to by both the noble Lord, Lord Fox, and the noble Baroness, Lady Andrews. I do not want to say very much more about it. The important point is revealed when you look at the subsection which introduces the power to make regulations in the case we are looking at, first of all in Clause 3(8). There is absolutely no qualification whatever to indicate the purpose for which that power may be exercised. It is a totally unqualified power, which may be used without any control from anybody as to the way in which the power is being exercised.

Twenty years ago, this House was looking at, among other things, the Scotland Bill. It is very interesting for the historian to compare the way in which delegated powers are conferred by that Bill with the way in which they are being conferred by this Bill. Both of them were major pieces of legislation, designed to lay the structure for the future governance of this country. On the part of the Scotland Bill, of course, it was very obvious because it was the first step toward devolution; it had to be carefully crafted, and yet it was moving into an uncertain world. The many powers to make legislation by delegated legislation are all carefully described, so that one knows exactly the purpose for which that power could be used. As the Bill went through both Houses, the reason for the power and the scope that was given to Ministers to use it was carefully scrutinised by both Houses.

We do not have that benefit in this case, in a Bill which is designed to settle the internal market—a Bill of equal importance and, perhaps I might say, equal difficulty. Nevertheless, they have in common that they are major pieces of legislation, and yet, in this case, the power we have to legislate and to scrutinise legislation is really being opened up to Ministers to deal with, without any control whatever. That is the basic flaw which runs through all of the clauses to which these amendments draw attention.

There is, of course, the point that the noble Baroness mentioned, that all that has been required with the devolved Administrations—or the Ministers in the devolved Administrations—is that they be consulted, not consent. That is not in keeping with the Sewel convention, although that is qualified by the word “normally”. I would have thought that in this case, because of the scope of the powers, consent would be appropriate here, because there is no other way of controlling what the power may be used for. That is the reason why the absence of a provision for consent is so important in these cases.

Without saying any more, I must say that I fully support the points that have already been made on these very important amendments.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Noakes, has withdrawn, so I now call the noble Lord, Lord Thomas of Gresford.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the House of Lords is coming to a watershed. When we threw out the statutory instrument in relation to tax credits in 2015, the reaction of the Government was to wheel in the noble Lord, Lord Strathclyde, to set up a review. His report advised that the House of Commons should be given the power to overrule this House should it ever have the temerity to do the same thing again. Since then, the Labour Party has followed an unwavering policy of abstaining on fatal amendments to statutory instruments.

Trade Bill

Baroness Fookes Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

Amendments 47 and 48 not moved.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I am not able to call Amendment 48A by reason of pre-emption.

Amendments 48A to 53 not moved.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to the group beginning with Amendment 54. I remind noble Lords again that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment or the other amendment in this group to a Division should make that clear in the debate.

Amendment 54

Moved by

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Amendment 65 not moved.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to Amendment 66—Lord Stevenson of Balmacara. I understand that neither the noble Lord nor anyone else listed to speak wishes to move this amendment.

Amendment 66 not moved.

Amendment 67 not moved.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to the group beginning with Amendment 68. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in debate.

Amendment 68

Moved by

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

My Lords, I apologise for not being here at the start of this Committee. I had to chair the Economic Affairs Committee of the House of Lords to which the Governor of the Bank of England was giving evidence.

I support these amendments and congratulate the noble Lord, Lord Alton, on his tireless commitment to championing the cause of so many people suffering persecution and genocide around the world. Who on the Front Bench could have heard that speech and not felt an absolute obligation to accept these amendments or some variation on them? This House can be proud not only of the noble Lord, Lord Alton, but also of the noble Baroness, Lady Cox, for the indefatigable way in which they bring the appalling atrocities happening around the world to the attention of this House and of the country.

I want to focus on China, a country with detention without trial for bloggers, journalists, academics and dissidents; of televised forced concessions; of torture, genocide, enforced organ harvesting, compulsory sterilisation, forced labour and the destruction of crosses and their churches. I have referred to this in the House before, and to the evidenced-based report by the Conservative Party’s Human Rights Commission entitled The Darkest Moment: The Crackdown on Human Rights in China, 2013-2016. It makes for very disturbing reading. It details how a pastor’s wife was buried alive while protesting at the demolition of a church in Henan province and how Falun Gong prisoners were forced to donate organs to high-ranking Chinese officials.

Giving evidence to the commission on organ harvesting, the Chinese-born actress, Anastasia Lin, said that such acts force us

“to confront the question of how humans—doctors trained to heal, no less—could possibly do such great evil”.

Her answer was:

“The aggressors in China were not born to be monsters who take out organs from people … It’s the system that made them do that. It’s the system that made them so cold-bloodedly able to cut people open and take out their organs and watch them die.”


As a consequence of her criticism of the regime, Ms Lin’s family was threatened by state security agents and her Canadian sponsors were asked by the Chinese consulate to withdraw their support.

Last century, China signed the International Covenant on Civil and Political Rights, but somehow it has not got around to ratifying it. The assaults on Tibetan identity and the oppression of the Uighurs in Xinjiang are mirrored in Mongolia. My right honourable friend Sir Iain Duncan Smith wrote about this in last week’s Daily Telegraph. He reported that there are 3 million Uighurs in detention camps and he rightly pointed out:

“As China carries out these human rights abuses while systematically breaking World Trade Organisation rules, too many businesses act as apologists for China”.


We must now take a lead in challenging this behaviour. We saw how Huawei found friends in high places, with the noble Lord, Lord Browne of Madingley, no less, chairing its UK board and Sir Mike Rake, a former president of the CBI, joining the board, together with a former head of UK Trade & Investment, Sir Andrew Cahn and the Lord-Lieutenant of Greater London, Sir Ken Olisa. I do not know what the UK board of Huawei does but, since public exposure, many of these people have scuttled off it. Speaking out against China’s egregious breaches of human rights has not been one of their functions.

This amendment is a start to holding China and others to account. In a Written Answer to the noble Lord, Lord Alton—I call him my noble friend—the noble Lord, Lord Ahmad of Wimbledon said:

“We have a policy of engagement with China and our approach will remain consistent even if difficulties emerge.”


We are talking about atrocities and genocide. This is why this amendment and its supporting amendment —which takes account of the Minister’s comments—need to be taken on board in the Bill. I hope the Minister will support it.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

As the noble Lord, Lord Adonis, has withdrawn, I call the noble Baroness, Lady Falkner of Margravine.

[Baroness Falkner of Margravine (CB)]

My Lords, it is always a pleasure to follow the noble Lords, Lord Alton and Lord Forsyth. The noble Lord, Lord Alton, set out the case so comprehensively that I will not detain the House in repeating some of these egregious abuses.

I want to come at this from another angle that speaks directly to the UK’s trade policy and our values and obligations on the international stage. States carry moral weight, so the amendment is entirely pertinent to this Bill.

Thinking about this amendment made me reach for my copy of Philippe Sands QC’s excellent book East West Street: On the Origins of Genocide and Crimes against Humanity. Anticipating resistance to our amendment, I hope to explain why Amendments 68 and 76A are relevant. They will only apply in the most extreme and egregious cases as affects international law and UK trade policy. My arguments go directly to the distinction between the crime of genocide and the broader illegality of crimes against humanity.

At the Nuremberg trials of 1945 and 1946, two outstanding prosecutors, Hersch Lauterpacht and Raphael Lemkin, part of the British and US teams, determined that international laws were needed relating to a pattern of state behaviour that could no longer be allowed to stand and that they were categories of human rights violations that needed to be given a name and recognised—“genocide” and “crimes against humanity”. For Lauterpacht, who was an academic at Cambridge, the killing of individuals, if part of a systematic plan, would be a crime against humanity. For Lemkin, the focus was genocide: the killing of the many with the intention of destroying the group of which they were a part.

As Philippe Sands explains, for a prosecutor today the difference between the two is to do with establishing intent. To prove genocide, you need to show the act of killing was motivated by an intent to destroy the whole group, whereas for crimes against humanity no such intent has to be shown. He explains that proving intent of genocide is extremely difficult, as those involved tend not to leave a paper trail—he should know, being the foremost prosecutor of such attempts.

Lemkin went on to win the argument at the United Nations, as in December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. It was the first human rights treaty of the modern era. Lauterpacht’s contribution inspired the Universal Declaration of Human Rights, of 1948, ironically adopted by the General Assembly only one day after the genocide convention that same December. The law of crimes against humanity has primarily developed through the evolution of customary international law and is not yet an international convention.

But turning to when and where this particular provision from this amendment may be used, it is fair to say the world is more respectful of both individual and group rights, but not universally—hence the suffering of the Rohingya people in Burma and the Uighurs in China. The noble Lord, Lord Alton, and others have spoken about the crimes against them, and this House is well versed in this situation over several years.

I want to close by quoting Raphael Lemkin from a letter he wrote in 1946, which is quoted by Sands. He wrote the letter two years before the genocide convention was agreed. He wrote the letter when he despaired that it would become international law, and he said:

“we cannot keep telling the world in endless sentences: Don’t murder members of national, racial and religious groups; don’t sterilise them; don’t impose abortions on them; don’t steal children from them; don’t compel their women to bear children for your country; and so on. But we must tell the world now, at this unique occasion, don’t practice Genocide.”

If the United Kingdom’s values are to stand for anything in trade, international relations and its footprint on the international stage, they must stand for that.

[Baroness Deech (CB) [V]]

My Lords, I salute my noble friend Lord Alton for bringing the amendment forward in the style to which we have become accustomed, for he has always been a champion not just of the underdog but of those who are on the verge of death and torture. I rely on his description of genocide and that of my noble friend Lady Falkner. The definition is a complicated one and it is quite correct for the amendment to rely on the High Court to decide whether a country is guilty of genocide.

It is a sad day when we have to debate this, but the amendment is perfectly in keeping with the trade amendments that we have been discussing all day, because we can see the thread: morality and trade go together. The amendment is a very good example of that.

It is sadly no longer the case that genocide is something of the past. We have many modern examples of genocide or steps toward it: the Darfuris in Sudan, the Rohingya in Myanmar, the Christians in Nigeria, the Yazidis. We must now ensure that UK business and consumers do not support or profit from forced labour inflicted on the Uighurs in China. It is shameful that China is in such a position that it controls so many international organisations and enables itself to be free from any attack on its behaviour. That is what makes the amendment so important.

I quote Yehuda Bauer, an Israeli historian who himself escaped from a possible Holocaust and was able to get to Palestine in the days when the United Kingdom prevented most refugees entering Palestine. He said:

“Politics that are not based on moral considerations are, at the end of the day, not practical politics at all. It is out of these considerations that I beg you to permit me to repeat here what I said, exactly eight years ago, in a speech to the German Bundestag: I come from a people that gave the Ten Commandments to the world. Let us agree that we need three more commandments, and they are these: thou shalt not be a perpetrator; thou shalt not be a victim; and thou shalt never, but never, be a bystander.”


He writes in a new book:

“I can no longer bear the speeches void of content and packed with clichés of presidents, prime ministers, rabbis and others … What does it actually mean to say ‘Never again’ when genocides keep recurring? It’s just an empty slogan.”


We are learning that in this country. Holocaust remembrance is a major event every year, but building monuments will not do it. There are countless memorials around the world to genocide and atrocities, but they do not help the victims or teach other countries to change their behaviour. We cannot block China because of the unfortunate structure of the Security Council.

Some people say that we will at least be able to bring the perpetrators to justice, but the number of trials before international tribunals is actually quite small. Yes, there was the Nuremburg tribunal. A Japanese war general was put on trial. Tokyo war crimes were tried. There was a tribunal for the former Yugoslavia, for Rwanda and for Cambodia, and the trials of Saddam Hussein and Charles Taylor. But they are ex post facto: the murders and genocide happened before the trials. It is too late for those who died. There is no indication that the punishment of a trial awaiting them has deterred mass killers.

Moreover, the International Criminal Court does not have universal jurisdiction and its stances are partial. Indeed, President Trump gave an executive order in June threatening consequences against anyone who supported this court. There is now a perception in many quarters that the International Criminal Court has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of those accused are still at large, including Omar al-Bashir, the former President of Sudan. Some €1.5 billion have been spent, and there have been only three convictions for core international crimes. Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators and weak internal management are among the current criticisms of the International Criminal Court.

We are therefore left with nothing else that we can do apart from taking in refugees and supporting this amendment. I wish that there were mechanisms for going into the countries of the accused and rescuing those who are suffering from genocide or coming near to it, but it seems that we cannot do that. Supporting this amendment and perhaps hitting them where it hurts, which is in trade, is the only thing we can do. I cannot see any reason for the Government not to accept it. I support both of these amendments wholeheartedly.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Owing to an error in the listing, the noble Baroness, Lady Northover, will speak later. Meanwhile, I call the noble Baroness, Lady Noakes.

[Baroness Noakes (Con)]

My Lords, like other noble Lords, I pay tribute to the noble Lord, Lord Alton, for his consistent support for oppressed people around the world. That is not in any doubt whatever; nor is the sincerity of the intent behind the amendment. I would, however, like to query whether it will achieve what the noble Lord thinks it might.

I will speak to the revised format of the amendment and concentrate on free trade agreements, not the GPA under subsection (1). The regulations under Section 2(1) apply only to continuity trade agreements. As I understand it, at the moment there is no agreement with either China or Myanmar that would qualify to be implemented by regulations under Clause 2 of this Bill, so I do not think that the amendment will achieve what noble Lords want it to. It would be quite difficult to repurpose the amendment to tackle future trade agreements because what the court could not do is revoke the trade agreement. The only thing that could be got at is some of the implementation legislation. It would be quite difficult to find a formulation that allowed the High Court to revoke, in effect, an international trade agreement. As I have suggested, I do not think that the mechanism of going to the implementation measures will actually work.

In addition, I believe that Parliament has a clear role when new free trade agreements are entered into. If Parliament does not like the counterparties or believes that they might be involved in either genocide or any other form of abuse—my noble friend Lord Forsyth spoke as much about human rights abuses as he did about genocide itself—it can decide not to ratify a free trade agreement and not to implement any legislation that is required to implement such an agreement. However, it is very difficult to go back and undo a free trade agreement once it has been made and ratified. I suggest to my noble friend that even if the courts were able to do that, I do not believe that they are the right place for what is essentially a political decision.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I understand that the noble Baroness, Lady Stroud, has withdrawn so I call the noble Lord, Lord Judd.

[Lord Judd (Lab) [V]]

My Lords, I thank the noble Lord, Lord Alton, for introducing this amendment. I agree absolutely with those who argued that it is inconceivable that the Government will not accept it.

The situation in China is of course appalling, but if we are going to introduce this legislation and further the cause of justice, we must be consistent. That means that we have to try to do everything possible to avoid arbitrariness, in which cases to be brought become, in a sense, historically arbitrary, because there are too many cases of what appears to be genocide in the world.

It is not just a matter of genocide; the definitions of genocide are clear and you can make an absolute stand. The problem is the issues which are marginal; there is also the problem of the immense human suffering, inhumanity and abuse of human rights and so on, which do not formally become genocide but which are appalling.

The one point I want to make in this context is that if the House, as I am sure it will, overwhelmingly approves this amendment—my congratulations to all those who have brought it forward—this must be the point at which we take extremely seriously, in all our trade deals, abuses of human rights, suffering and injustice. I do not hesitate to make the point.

An example of this is Yemen. Why do we prevaricate on Yemen when it is absolutely clear that we are very much implicated, indirectly, in what is happening there? That has great significance for our trade policy towards Saudi Arabia and others. We must be consistent. This is a wonderful opportunity to mark a point of no return, where as a nation we become known for consistency and firmness in our approach to the application and fulfilment of human rights and the protection of people in the name of humanity across the world.

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This is rather a clever amendment, which I strongly support, and I hope that it has cross-party support. It is not about politics but about values, morality and ensuring that we do what we believe in as a country. We have heard so many examples this evening of cases of genocide that I will not rehearse any more. I will say only that if the Minister cannot accept Amendment 76A, perhaps he might consider tabling a government amendment that would put this issue on the face of the Bill.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Altmann, has withdrawn, as has the noble Baroness, Lady Ritchie of Downpatrick, so I call the noble and learned Lord, Lord Hope of Craighead.

Trade Bill

Baroness Fookes Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Grand Committee

[Lord Lansley (Con)]

My Lords, I am rather pleased to follow the noble Baroness, Lady Chakrabarti, since it gives me an immediate right of reply. If she looks carefully at the debates last week, which she was listening to, she will find that at no point did I assert that any of the amendments were out of scope—not least because I have put down further amendments myself that are intended to have an impact on the processes for making regulations for trade future trade agreements, and indeed which impact on schemes outwith the text of the Bill. I will come on precisely to that in Amendment 91 in this group.

I say gently to the noble Baroness, Lady Chakrabarti, that the making of law is not solely the province of lawyers. There is a very valued tradition in this House that we bring expertise from a range of different disciplines. As it happens, my discipline—my original training—is that of a civil servant. Some 39 years ago I wrote the instructions to counsel for a major piece of legislation, and just under 10 years ago, as Leader of the House of Commons, I was responsible for Parliamentary Counsel and the scrutiny of legislation brought before the two Houses, and for the structure of the legislative programme. For 40 years I have engaged in the process of legislation. The fact that I am not qualified lawyer in no sense excludes me from making the points that I made.

As it happens, I did not say that anything was out of scope. The point I gently made last week was that quite a number of the amendments we were looking at were intended to influence—

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I am sorry to stop the noble Lord, but I understand that there are still some problems with hearing. Is that true of other Members of the Committee? No? Perhaps we can resume and see how we get on.

[Lord Lansley (Con)]

I was making the point that in amendments last week, I was trying to help the Committee. The objective of quite a number of the amendments was to influence the content of future trade agreements, but the effect of the amendments would have applied only to the continuity agreements. We will need to understand that in particular on Report, and to seek in some cases to amend the Bill, and to do so with the effect that people are looking for.

To come back to this group, I spoke on Thursday, I think, about Philip Morris. I will not repeat any of that but will simply say that it gives rise to considerable sympathy on my part about the actions of some companies. However, the absence of investor-state dispute settlement—

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I am sorry to interrupt the noble Lord again, but there has been a request that he starts his speech again, because quite a lot of it was lost. May I trouble him to start again?

[Lord Lansley (Con)]

Since I have no text, it will not be the same speech, so if you will forgive me, I will not do that. It will appear in Hansard, and I encourage Members to read it there. In any case, I am now talking about the amendments in this group, as opposed to responding to the noble Baroness, Lady Chakrabarti, which noble Lords can read in Hansard.

On these amendments, I have great sympathy with what the noble Lord, Lord Hendy, was saying. When Philip Morris was frustrated on an investor-state dispute settlement, it effectively used Honduras and the Dominican Republic to use WTO procedures. So the absence of ISDS is not enough in itself—we have to ensure that we are proof against that. In fact, where Australia was concerned, as it happens, the public health exemptions in the WTO were sufficient in the last decision of the appellate body that the noble Baroness, Lady Kramer, regrets the absence of: the last decision it made in June was to uphold Australia’s position. We have to be very mindful of that.

Before I get to my own amendment, I will speak to the others. There is a very legitimate question. Are the Government planning simply to roll over existing EU agreements as they are, including where there are ISDS provisions and including with CETA in due course, where there is an investment court system? I am very interested to know what the Government’s intentions are. Certainly, my expectation is that it will be very difficult to have a continuity agreement while departing substantially from continuity.

As regards Japan, I do not have the text of the UK-Japan Comprehensive Economic Partnership Agreement, but while the EU-Japan agreement encourages mutual investment, Article 8.9.4 of it makes clear that, while market access, national treatment without discrimination and most-favoured-nation status are offered, it says that for “greater certainty”, most-favoured-nation treatment

“does not include investor-to-state dispute settlement procedures provided for in other international agreements.”

I will be very interested to know in due course whether the UK-Japan agreement says the same thing. I know that my friends in Japan take the view that we will not be able to accede to the CPTPP without accepting an investor-state dispute settlement. So this is a very interesting moment in understanding whether we are joining with the European Union in moving away from investor-state dispute settlement, or whether we subscribe to the Japanese view that it remains a legitimate vehicle in international trade agreements.

Amendment 43 proposes a multilateral investment tribunal. I wish that we could use such a process. The Doha round did not accept a multilateral investment provision—the proposal failed. We have bilateral agreements, but while they might be desirable they are not sufficiently widespread to allow us to get to a multilateral tribunal. Putting in legislation a requirement for such a tribunal when people have not yet signed up to one seems heroic.

Amendment 91 is not about investor-state dispute settlement; it is about disputes between states. The best example to have in mind is the dispute between the European Union and the United States. As a result of US action, the dispute reached the point where it was lawful under WTO rules for the EU to apply specific import duties against US exports into the European Union.

The Taxation (Cross-border Trade) Act 2018 relates to this, but why I am talking about a different piece of legislation? The original Trade Bill and the Taxation (Cross-border Trade) Bill were introduced at the same time, at the end of 2017. They were intended to be considered side by side and they cross-refer considerably. In this instance, it is entirely right for us to look at the Taxation (Cross-border Trade) Act and ask whether the parliamentary scrutiny arrangements relating to it are correct. Section 15 of the Act gives the Secretary of State the power to impose through regulations additional import duties as a result of an international dispute—for example, regulations to impose import duties on US exports. That power is exercisable through the negative resolution procedure, but in my view it should be an affirmative resolution procedure—this should be added to the list of affirmative resolution procedures in Section 32 of the Taxation (Cross-border Trade) Act.

The argument in the Government’s Explanatory Notes for using the negative procedure in the great majority of cases where customs duties are imposed is that there are so many such regulations that they have to be made in that way, otherwise they become impractical. That is patently not the case here. In this instance, I encourage my noble friend the Minister to agree that there will be relatively few international disputes that give rise to the imposition of such duties and that, when that happens, it will by its nature be of considerable significance and therefore should be in the form of regulations subject to the affirmative procedure.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Judd. I will speak in particular to Amendments 52 and 94 in the name of the noble Lord, Lord Stevenson of Balmacara, to which I have appended my signature. I would like to use this opportunity to probe my noble friend on the precise state of the dispute resolution mechanism generally, as well as in relation to ISDS, but I have a lot of sympathy with other amendments in this group.

I will leave the details of the amendments to the noble Lord, Lord Stevenson of Balmacara, but, using them as a vehicle, I refer to the Library Note, which states on page 8 that

“the Government states it may need to implement the results of an arbitration/alternative dispute resolution decision under a continuity agreement.”

On page 9 of the Explanatory Notes, the Government state:

“This could include, for example, implementing decisions made by a joint committee of the parties set up under a trade agreement or implementing the results of an arbitration/alternative dispute resolution decision.”


I will refer to some examples, although not as many as we had from the noble Lord, Lord Hendy, in his excellent opening speech on this group of amendments. There does not seem to be any parity given, in the EU application for the review of subsidies before the World Trade Organization, to Boeing. The dispute that the EU—and through it, the UK—has brought with regard to America giving subsidies in large measure to Boeing does not seem to have got very far very quickly, whereas the decision taken by the US Administration against the EU for the claim that was brought for subsidies and action for Airbus brought a very swift response from the US that has in particular harmed Scotch whisky.

In answer to the noble Baroness, Lady Chakrabarti, I entirely endorse what my noble friend Lord Lansley said: one of the reasons we are here is as legislators, whatever background we are from. I declare for the record that I am a non-practising Scottish advocate.

Scotch whisky is our largest export of food and drink—probably one of our largest exports of any product—and it suffered a 27% decline in exports in the fourth quarter of 2019. This has brought enormous tension within the UK. The Scottish Trade Minister has said on numerous occasions—most recently as reported in the Times this weekend, or perhaps today; I am not sure—that the Scottish Government would like to see a much more rigorous approach by the UK Government and the EU as a whole to see these subsidies lifted. It raises a more general question. I understand that the Trump Administration have made a general threat to walk away from the World Trade Organization mechanism.

So I will use this little debate to ask my noble friend: what is the status within the continuity agreements, particularly those that have already been signed, of the dispute resolution mechanism? Has it been squared off with the devolved Assemblies? Are they all in agreement as to what the mechanism will be? Does my noble friend share my general concern that it takes a woefully long time for a dispute resolution to be reached under the World Trade Organization—something that is now compounded by the threat on the table by one of the biggest players to walk away? In addition, can my noble friend tell us what the status is with the devolved Governments, and what the dispute resolution mechanism is that has currently been agreed under those rollover agreements?

I place on record my concern at the impact on one particular product, which happens to be our major food and drink export, beyond doubt—Scotch whisky—and ask when my noble friend the Minister might expect a resolution.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, the noble Baroness, Lady Bennett of Manor Castle, has withdrawn, so I now call the noble Earl, Lord Caithness.

[The Earl of Caithness (Con)]

My Lords, first, I thank my noble friend the Minister for the correspondence that we have had since our last discussion. I found his letter, which I got yesterday, very helpful. I also thank him for his continued efforts to assuage my concerns with regard to ISDS. He is getting there but he has not won yet. In his letter, he mentioned the Vattenfall case, because I brought that up with him and he kindly agreed to fill in some more detail for me. But surely the Vattenfall case merely confirmed that an ISDS was not necessary. It was actually the German Constitutional Court that sorted out the problem there. The courts, in an open and transparent way, must surely be the right way for trade disputes to be settled, rather than in the murky waters of an ISDS.

My noble friend also said that the UK had never faced an ISDS claim that had reached arbitration. That is absolutely right, and I think that the public reaction would have been a lot noisier and more visible to us all if a claim had reached arbitration. Surely the reason for the current situation is that our ISDS agreements tend to be with developing countries in which we are investing. Looking ahead, the situation will be very different if and when we sign a trade deal with the US, which has very big investments in this country.

It is interesting to note—and I would be interested in what the Minister thinks on this—that Canada, having had rather bad experiences with ISDS when it was part of NAFTA, withdrew from the ISDS in the new USMCA trade deal in order to get away from that difficulty. Unless we follow a somewhat similar pattern, I fear that the UK will get severely punished in the future.

I will pick up a theme started by the noble Lord, Lord Hendy, when he introduced this amendment and to which other noble Lords referred: the chilling effect of ISDS. In particular, my concern is the chilling effect on environmental regulations and environmental law in the future. ISDS has been used to challenge important regulations, such as those on fracking in Canada and, as I mentioned on Thursday, plain packaging for cigarettes in Australia. This has cost Governments in the countries involved a considerable amount of money. Governments have been reluctant to regulate in these areas because of the mere threat of an ISDS. If we are to fulfil the aim of the Prime Minister, which he stated to the party conference this morning, to have a green revolution to bring us back to economic prosperity, the one thing that we cannot afford is to have ISDS threats on environmental regulation hanging over us in the future.

What has not been raised so far in our debates is the report, Costs and Benefits of an EU-USA Investment Protection Treaty, which the former BIS department commissioned from the London School of Economics. Can my noble friend comment on it? It warned of going beyond

“the traditional core of favourable standards of treatment backed up by access to ISDS”,

containing

“provisions concerning the host state’s right to implement treaty-consistent measures to protect the environment”.

The report found that the UK would necessarily incur costs in defending itself against investor lawsuits, even if the UK wins, and that is something that has not happened to date. It goes on to say that it is

“virtually certain that such costs under an EU-US investment chapter will be higher than under the status quo”.

To quote from the report again,

“we suggest that an EU-US investment treaty would impose costs on the UK to the extent that it prevents the UK government from regulating in the public interest.”

That is exactly the point I have just been making: it is the chilling effect of ISDS. The report concludes that a treaty without ISDS would be a less costly option for the UK. As a minimum outcome, therefore, we should surely ditch ISDS as a matter of urgency, and I find it quite interesting that at least two of the countries with which we have rolled over continuity agreements, Morocco and South Africa, are ditching ISDS in other trade deals that they are doing.

--- Later in debate ---

That brings me to the conclusion of my remarks. I hope that what I have said has reassured noble Lords and I ask the noble Lord, Lord Hendy, to withdraw his amendment.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received a request from the noble Lord, Lord Purvis, to speak after the Minister.

[Lord Purvis of Tweed (LD)]

My Lords, I thank the Minister for his comprehensive response to the debate on this group of amendments. I am grateful for that; it shows the seriousness of this issue. I and other noble Lords will reflect on his remarks.

I have two questions. The first relates to the amendment in the name of the noble Lord, Lord Lansley, which I support. As I understood it, if we were to bring retaliatory measures or sanctions, they would have to have been authorised by the dispute settlement body at the WTO, so by the time they came to Parliament, either under the negative procedure or the affirmative procedure, they would be public anyway. Therefore, Parliament’s ability to use the affirmative procedure would be based on what was already in the public domain.

Secondly, I am still not sure why the Government have not indicated that they will continue with their support for moving towards an investment court system in our continuity agreements with Singapore, Vietnam and Mexico, which are yet be signed, given that the European Union has stated categorically that moving towards such a system is the approach for those countries and is now, to quote the Commission in October 2019, “on the table” in all ongoing investment negotiations. I simply do not understand why the Government, who supported moving to a multilateral system, now say that they are fully engaged and cannot say what their position is yet. Why can the Government not simply say that they support this in principle and are working with others to bring it about?

--- Later in debate ---

Motion agreed.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, that concludes the work of the Committee this evening. The Committee stands adjourned. I remind Members to sanitise their desks and chairs before leaving the Room.

Committee adjourned at 7.31 pm.

Corporate Insolvency and Governance Bill

Baroness Fookes Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Tuesday 23rd June 2020 Lords Chamber

I hope it is clear from the number of amendments tabled by the Government that we have listened carefully to noble Lords’ views and that we have responded substantively and appropriately. I beg to move.

[Baroness Fookes (Con) [V]]

My Lords, before I speak to Amendment 48 in my name, I thank the Minister for taking on board so many of the issues raised by the Delegated Powers Committee and the Constitution Committee about the extensive use of delegated powers. I believe in giving credit where it is due and do so now.

However, I was seeking a little more in Amendment 48. This amends Clause 21, which requires the Secretary of State to keep the regulations made under Clause 18 under “constant review” and, if satisfied that they are no longer needed or proportionate to their purpose, to make new ones amending or revoking. That sounds fine at first, but what does “constant review” really mean? Who is going to do the constant reviewing—a very busy Minister with other things on his mind, or his very busy civil servants? My amendment seeks to keep them on the straight and narrow, so to speak, by suggesting that the Secretary of State should review these amendments every three months and report to Parliament. I hope that my noble friend might take this on board, but I am not holding my breath.

[Baroness Taylor of Bolton (Lab) [V]]

My Lords, I echo what the noble Baroness, Lady Fookes, said. She and I serve on the Constitution Committee, which raised quite a few concerns about this Bill. I want to say a few words about Clause 22. As the Minister outlined, the Government are now adding a limitation to it so that the expiry date cannot be extended beyond two years after Royal Assent. That amendment is very similar to the one that I moved in Committee. I am very pleased that the Government have acknowledged what the Constitution Committee said about the extent of the power that was being given, and I am glad that this change is being incorporated in the Bill.

Having said that, and having welcomed the changes that the Government have introduced in other areas, there are some very significant general concerns, that I and many others have, that have been highlighted by this Bill and by the extent of the government amendments that have had to come forward following Committee. Committee raised a series of genuine problems, some of which the Government have addressed, but this illustrates some of the dangers of fast-tracking legislation, even when, as the noble Lord, Lord Callanan, said, there have been previous consultations. It certainly illustrates the dangers of using emergency legislation. We all accept that emergency legislation in this area is needed because of Covid-19, but it illustrates the difficulty of using emergency legislation to make permanent changes at the same time in this very rushed way.

I ask the Minister to bear in mind that we will have other legislation coming forward. I hope that Ministers will learn the lessons of this legislation. This is a complex Bill—the previous debate showed that—and this is not really an adequate way of scrutinising such complex issues. Therefore, I hope that when we have other legislation because of Covid-19 or Brexit, the Government are mindful and give time for proper consideration of all aspects of such Bills.

Having said that, I welcome the specific change to Clause 22, and I am very pleased that the noble Lord, Lord Callanan, having said last week that he would look at this again, has produced this government amendment.

Corporate Insolvency and Governance Bill

Baroness Fookes Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 16th June 2020 Lords Chamber

Our main concerns are using the fast-tracking procedure not just for the emergency sections of the Bill but the permanent stages, and the need to keep Parliament informed about use of the new powers, so that the Government do not get away with taking such vast Henry VIII powers, with little recourse to reporting to Parliament, in the future. We are also concerned about other matters, such as the retrospective nature of some of the provisions in this legislation. They will be discussed later, and I hope that the Minister responds to those as well. I hope the Minister will acknowledge that Parliament and the House of Lords are facilitating the passage of the Bill in unusual circumstances. There needs to be greater assurance that Parliament can be kept informed and have a role, in the future, to determine the direction of this legislation permanently.

[Baroness Fookes (Con) [V]]

My Lords, I am delighted to support the noble Baroness, Lady Taylor, in the two amendments she has tabled, to which I have added my name. I speak not only as a member of the Constitution Committee but as a former member and chairman of the Delegated Powers and Regulatory Reform Committee. I was delighted to hear my successor speak so robustly and correctly. Over the years, I have become increasingly concerned by the way the Government take on to themselves more and more delegated powers. It is important, even when we have a serious problem with coronavirus, that we make our case firmly.

The noble Baroness, Lady Taylor, discussed the two amendments in detail, so I will not go into them, other than to say that Clause 18, which we are trying to soften, is an immensely powerful one. It gives the Government unrivalled powers to take whatever powers they think they need in this emergency, without much restraint.

I regard Clause 18 as King Henry VIII at his most obese, and it is time he was slimmed down; the two amendments standing in our names try to do just that. I thought we had got there with Clause 23, which was the expiry one, but, when you look at it closely, you find that it is not a sunset clause at all because it is possible to renew the power to make these amendments. So I regard it as a pseudo-sunset clause, and it is high time that we all make sure that the Government do not get away, whenever they want, with whatever they want. We must bear in mind too, that it will not always be the present Government; some of the powers would remain for other Administrations, who might not be as enlightened as I am sure the present Government think they are.

[Lord Wallace of Tankerness (LD) [V]]

My Lords, I am very pleased to follow the noble Baronesses, Lady Fookes and Lady Taylor of Bolton, who are both my colleagues on the Constitution Committee. I have added my name to the amendments that have been spoken to in the previous two contributions, and that carry on the theme of both my noble friend Lady Northover and the noble Lord, Lord Blencathra, about the wide powers in the Bill. As indicated by the noble Baroness, Lady Taylor, the Constitution Committee accepts that there is a need for temporary emergency arrangements to protect business and the economy in the current pandemic crisis. But the committee also stresses, in its seventh report, published last Friday, that:

“During times of crisis and emergency it is all the more important to be vigilant about constitutional principles, such as the rule of law and parliamentary accountability. The need for an urgent response to COVID-19 does not justify Parliament neglecting its duty to consider the constitutional implications of the legislation presented to it.”


As speakers have already mentioned, there are very wide Henry VIII powers in the Bill, not least in Clause 18, which Amendments 66 and 70 seek to address. The Constitution Committee in a report in the 2017-19 Session specifically looked at the use of delegated powers, and said that Henry VIII powers are

“a departure from constitutional principle. Departure from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.

One looks in vain here for some full and clear explanation. Rather, we are told, in the delegated powers memorandum:

“There are no specific plans to use the power to make temporary changes at present, but it is likely that its use will be considered where representations have been made by industry or where discussions with key stakeholders have identified areas where urgent legislation could help save otherwise viable businesses or mitigate the impact of the pandemic otherwise.”


That is not exactly what one would call an intimation of specific intent.

Notwithstanding these misgivings, Amendments 66 and 70 are relatively modest, so I hope that they will commend themselves to the Government. The noble Baronesses, Lady Taylor and Lady Fookes, have already explained how they will work. In Amendment 66, we seek that a review should take place and report to Parliament. We have reviews of the current emergency regulations, and we find that they are more often shared with the Downing Street press briefing than with Parliament, but this modest amendment would require a report to Parliament. Amendment 70 would see a sunset clause in effect no later than 30 April 2022. The amendment probably to be spoken to later in this group by the noble Baroness, Lady Neville-Rolfe, would have an earlier sunset clause, and I must say I find that somewhat attractive. In the Government trying to take powers like this, they should adhere to constitutional principle. When such widespread powers are sought, they should be well and truly limited in their effect.

Self-employment Income Support Scheme

Baroness Fookes Excerpts

Tuesday 5th May 2020 Lords Chamber

[Lord Callanan]

I understand the point that my noble friend is making, but a key principle is that universal credit should go only to people who do not have assets available to meet their basic needs. It is important to protect the incentive to save. However, any assets used wholly or mainly for the purpose of a claimant’s trade or profession are disregarded indefinitely while the business is still operating. Any money that may be in their account to be used for business purposes will also not be counted towards the capital allowance.

[Baroness Fookes (Con)]

Can my noble friend the Minister reassure those who may be concerned about whether universal credit payments made will have to be repaid once the new scheme is up and running?

[Lord Callanan]

DWP officials are in discussion with those in other government departments about the detail of these varied schemes and grants. However, we expect to treat these SEISS payments as employed earnings, and to take them into account when they are received; therefore we do not expect to adjust previous awards.

Smart Meters Bill

Baroness Fookes Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th April 2018 Grand Committee

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I must make the usual announcement. If there is a Division in the Chamber, we must adjourn and resume after 10 minutes.

Clause 1: Smart meters: extension of time for exercise of powers

Amendment 1

Moved by

Queen’s Speech

Baroness Fookes Excerpts

Monday 26th June 2017 Lords Chamber

[Baroness Fookes (Con)]

My Lords, a number of noble Lords have been powerful advocates in this debate for various aspects of our national life. I will concentrate on another that so far has not received a single mention. I will give a few clues in the hope that at least a few Members of this House may recognise what I am about to speak about. This industry employs 300,000 people. It is worth about £10 billion to the economy annually, it has a very important role in bringing in tourists, including from within the UK, and it has a very important role to play in the health and well-being of people generally. I refer to horticulture. It comes under the aegis of Defra, but I fear that in the past it has always been a poor relation. I was therefore disappointed, but not in the least surprised, that it did not get so much as a mention in the gracious Speech. Nor has it been referred to so far in this debate, save when my noble friend Lady Neville-Rolfe mentioned homes and gardens and my spirits rose slightly, but that was all.

I want to insist that this is a very important aspect of our national life. Leaders in the horticultural industry have got together, and they have a number of organisations, one of which, a horticultural round table, has regular meetings with Ministers, and I hope these are still going on. I am making this point right now because it is very important that that continues to take place. They are not just whining and moaning; they are seeking to work with the Government on sensible policies that will be of benefit to both government and the industry. Sadly, it has not packed the punch of the big battalions because it is very disparate and that is one of its problems. There is gardening proper, nursery production, garden designers and landscape architects. On the scientific side there are botanists, those who look at pests and diseases and R&D. In many cases, the organisations are small: family firms, partnerships and so forth. It does not have that big punch, but I sincerely hope that the Government will take this on board now and in the future.

In the very short time that I have, I will touch on one or two of the myriad topics that I could mention if I had half an hour. First, there is a skills shortage. There are many organisations, including the National Trust, and many big contractors who have to turn down possible work because they do not have sufficient skilled people. We need to give far more attention to apprenticeships and right the way up to degree and post graduate work. I hope the Government will take that on board. My other beef is that very often the careers service and schools pay little attention to horticulture as a multifaceted career. To use rather vulgar parlance, the general attitude seems to be, “You only do gardening if you are so thick you cannot do anything else”. This absolutely enrages me, because it is so unfair.

My second point is the issue of import substitution. We import numbers of trees and other plants, and cut flowers, when we could be doing far more to produce our own in this country. But, of course, when it comes to trees, you have to get them going, and that might take up to five years. In those circumstances, the people who will buy the trees have to give the tree producers sufficient warning. I refer particularly to HS2, where an immense number of plants will need to be planted to help the environment around the railway line. I hope that will be considered very important. We also need to import less because of the fear of pests and diseases. However, that is an issue for another day, since I see that my time is up.