National Security and Investment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage & Lords Hansard
Tuesday 2nd March 2021 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I shall speak also to Amendments 13 and 83. Perhaps I will take a little more time than usual over this because it is one of the central issues on which we wish to hear the views of the Committee and, indeed, the response of the Government.

Given that national security is clearly the Government’s priority, it is important that to make the Bill work everyone involved in its provisions and their interpretation are clear about how the Government see national security—its range and depth, if I may put it that way. Therefore, Amendment 13 seeks to establish the issues which should be taken into account because clear rules will be vital for businesses seeking funds, researchers, investors and the unit having to take decisions. They need to work on basically the same template.

Let me take a moment to say that the Government have published 112 pages today—the Minister expected someone to say it, so I may as well say it now—but his letter covering the first amendment arrived as he was speaking to it and the Written Ministerial Statement did not even refer to a policy statement that I gather has also been put out, according to my up-to-date information. I think the Committee will understand that we have not had time to digest this and we may therefore have to try to look at some important issues in that.

One of the points relevant to Amendment 13 is that this response states that several respondents indicated that “national security” should be clearly defined. We are therefore interested to know whether the Minister will listen to those concerns which, in a sense, is what Amendment 13 is seeking to do. It is not trying to define exactly what is national security nor, by implication, what is not. It is setting out how people tasked with scrutinising potential investments may approach the first question—“Might this risk our security?”—by listing the sort of factors to be considered. The “have regards”, while not an exclusive list, indicate to officials, the Secretary of State and those handling investments the matters which should be considered in any decision.

We absolutely agree that neither the Government nor Parliament should prescribe or limit what national security covers, as is long-standing practice, and therefore do not seek by this amendment to curtail the Secretary of State’s flexibility to act, but we nevertheless think that the other parties involved who will be impacted by this legislation need to know the range of issues which will be among those considered by the Secretary of State.

Amendment 13 provides a framework which is neither rigid nor exclusive. It simply does what other countries have done, what experts have recommended and what we have heard that people submitting comments to the Government have also said. The Law Society argues that without something like this, there is a risk that a Secretary of State could become exposed to political influence, and the Investment Association says that a better understanding of national security could help calm investors. Therefore, the amendment indicates factors that the Government might consider, such as the impact of a triggering event on defence capabilities or how a hostile actor might be enabled to gain access to critical infrastructure. I hope that the Minister will accept that Amendment 13 provides such a framework and flexibility to help alleviate the concerns that have been raised, particularly in the defence sector.

We are also keen to ascertain whether critical infrastructure is included in the Bill. As we know from the ISC report published last year, Russia has

“undertaken cyber pre-positioning on other countries’ Critical National Infrastructure.”

It would therefore be useful if the Minister could clarify whether that is covered in the Bill.

Later this month—the rumour is a week tomorrow but certainly while the Bill is in this House—we will see published the Integrated Review of Security, Defence, Development and Foreign Policy. Perhaps the Minister could confirm its publication date and that it will indeed be a week tomorrow. He nods—I think I am not going to get a yes that question. Can he also outline how the results of the analysis of that review will feed into the work of the new unit and its decisions on what constitutes a security threat? Will the review focus on the private sector and on the role that the Government see for business, as well as on how the interests of innovation both in academia and in business should be promoted?

Amendment 83, to which the noble Baronesses, Lady Northover and Lady Bennett of Manor Castle, have added their names, highlights the relationship between the review just mentioned and the objectives of the Bill and seeks a government statement on it. Given that the Government have said that the review will include the

“long-term strategic aims for … national security”,

there are questions about how these would align with the Bill’s new regime and how we are able to keep an eye on technological developments in the private sector while keeping pace with security challenges. What we do not want to see is an important new national security regime buried in BEIS which does not link with the UK’s wider and longer-term security concerns and priorities.

The ISC noted

“the extent to which economic policy dictated the opening up of the UK to Russian investment”,

whereas the Bill seeks to put security first and our investment needs second. As I said on the earlier group, it is an important but not always easy judgment to make. It is therefore essential that the Government’s view on security is considered by the BEIS unit and that Parliament is able to see how that is happening by way of the statement suggested in the amendment. That statement should focus both on how the Government will align the provisions in this Bill with the outcome of the integrated review and on how the UK will respond to identified threats, including new technology, biological weapons, cyber and misinformation. The reference to new technology is key since new weapon capabilities could as easily be developed in the private sector as in an MoD lab. The Government will need to procure these assets while preventing certain foreign states also purchasing them.

I return to Amendment 2, which probes whether public order and public safety are included within the Government’s view of national security. The similar German regime captures “public order” as part of its national security, while the Japanese regime applies equally to “public order and public safety” and to national security. Is the UK regime narrower than the approach taken by these other jurisdictions? Perhaps the major issue we want clarified within that is whether an investment which could have an impact on the working of our democracy would be covered.

Last year’s Intelligence and Security Committee report on Russia stated:

“The UK is clearly a target for Russia’s disinformation … Russian influence in the UK is ‘the new normal’ … It is clear that Russia … poses a significant threat to the UK”,


including “interference in democratic processes”.

With regard to elections, the discussion at the time of the publication of the report, which of course was written a whole year before it was published, was more on bots, messages, and so forth, the report noting that

“Russia has carried out malicious cyber activity … including attempting to influence the democratic elections of other countries”.

The Government’s own response concluded that

“it is almost certain that Russian actors sought to interfere in the 2019 general election through the online amplification of illicitly acquired and leaked Government documents.”—[Official Report, Commons, 16/7/20; col. 71WS.]

However, an external force intent on interfering with our elections could instead invest in the electronic gear that stands behind our pencil and paper voting, and perhaps pose a threat that way. Given, as the ISC report notes, the

“fusion of government and business”

in Russia, a business providing advanced IT for elections could have very close ties to that regime, or indeed to any other regime. Indeed, the Government’s response to the ISC noted that the Defending Democracy programme in the Cabinet Office includes consideration of

“direct attacks on electoral infrastructure.”

So the thinking is clearly there. Perhaps the Minister could therefore clarify whether foreign investment in democratic electronic infrastructure would come under the remit of the Bill. It is partly about what we think of as national security.

When the ISC covered this, it noted that

“the issue of defending the UK’s democratic processes … has appeared to be something of a ‘hot potato’, with no one organisation”—

I assume it meant within government—

“recognising itself as having an overall lead.”

Could the Minister outline how such responsibility and oversight will sit within the BEIS unit, such that investment in any democracy-related hardware or software could be included in its remit, and explain how the Government will overcome what the ISC describes as

“nervousness around any suggestion that the intelligence and security Agencies might be involved in democratic processes”,

given the committee’s view that

“Protecting our democratic discourse and processes from hostile foreign interference is a central responsibility of Government, and should be a ministerial priority.”?


The answer to the questions may indeed be no, but to have a discussion on national security and the future of our democracy and our safety without considering this seems to us to miss out a vital ingredient. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble Baroness, Lady Hayter, for bringing forward this group of amendments. I will speak in particular to Amendment 13.

In preparing for this stage of the Bill we have received a number of briefings from outside bodies. Every single one has said, in the words of the noble Lord, Lord Clement-Jones, that the trawl is being done far too widely. The Government would not be drawn on that at Second Reading, and it is absolutely appropriate that we try to pin them down through this form of probing amendment.

In leaving the parameters drawn as wide as they are, it is fair to say that all those who have briefed ahead of today would prefer to see a strict definition of what national security is. Am I right in assuming that national security for the purpose of the Bill covers everything that is not defined or covered elsewhere? Water treatment, the water supply and air traffic are covered by other legislation, so does that mean they are not covered by the purpose of the Bill? Are we wrong to assume that the Bill covers critical infrastructure in the way the noble Baroness, Lady Hayter, set out? It would be helpful to know whether we have to work on a process of elimination rather than on a specific reference point such as a definition, as is set out in Amendment 13, which is quite wide in its own right, given its number of “have regards”.

The Law Society of Scotland states that

“national security itself is not defined within the Bill. We note that the Enterprise Act 2002 definition refers to EU legislation”.

Are we right to assume that that definition still applies, or can we safely assume that, because we have now left the European Union, it is no longer valid? A steer from the Minister would be very helpful in summing up this debate.

The Law Society of Scotland goes on to say that

“: it might be helpful to introduce a stand-alone concept appropriate to the current context. An exhaustive definition is likely to be neither possible nor desirable but a general delineation of the concept together with detailed additional guidance as to how this is likely to be applied would be helpful.”

Does the Minister intend to do that as the result of this amendment to date?

I, too, received the letter from the Minister within the last half hour, when I was on another call. In the normal course of events, I would have studied such a letter quite closely to enable me to prepare for today, so it is a matter of some regret that we have not had a chance to read it. Perhaps the Minister will cover its main points in replying to this little debate on this group of amendments.

I believe that either we should adopt something like Amendment 13 in the course of proceedings or the Minister should bring forward some definition of the Government’s own drafting during the proceedings, before the Bill leaves the House.

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Moved by

[Baroness McIntosh of Pickering]

6: Clause 1, page 1, line 18, at end insert—
“(2A) For the purposes of this Act, the following shall not be taken into account when considering whether a trigger event may give rise to a risk to national security— (a) adverse effects on levels of employment in the United Kingdom, or a part thereof, except that adverse effects on the employment of one or more specific categories of employee may be taken into account,(b) the existence or extent of opportunities for persons resident or established in the United Kingdom to invest in, or make sales in or into, another jurisdiction, or(c) the protection from competition of business activities carried on in the United Kingdom or business activities carried on by persons resident or established in the United Kingdom, except to the extent that such business activities contribute materially to national security, or are likely to do so in the future.”Member’s explanatory statement
This amendment would clarify that certain factors—namely employment effects, reciprocal investment or trading opportunities, and the desire to protect UK business from international competition—cannot be taken into account in assessing whether a trigger event would give rise to a national security risk.

[Baroness McIntosh of Pickering (Con)]

I am delighted to move Amendment 6 and I thank my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Clement-Jones, for lending their support to this amendment. I also thank the Law Society of England for its help in drafting the amendment, and I very much look forward to my noble friend Lord Callanan keeping up his good efforts this afternoon in responding to this debate.

We have not so far succeeded in coming up with a definition of how to limit our understanding of a definition of national security, so I shall approach it by a different route, which is to try to understand, define and limit what constitutes a trigger event. In the view of practitioners, as expressed by the Law Society of England, this amendment is needed as it would ensure that “national security” in the Bill will not be conflated with other issues of political or industrial concern which cannot be seen to relate to security but would still be flexible enough to allow for genuine national security threats to be deemed to be trigger events. I suppose this relates to my noble friend’s earlier comment in summing up a previous debate when he said that trigger events or national security relate to the whole economy, not just parts of it.

The purpose of Amendment 6 is to understand what constitutes a trigger event that would be deemed to lead to or constitute a security risk. It is in terms of being critical to investor confidence in the United Kingdom that the new regime is seen to be focused clearly on national security concerns and free of industrial or electoral influences not relating to national security. Therefore, the Bill would benefit from a clause such as this, explicitly stating the factors that should not be taken into account in assessing whether a trigger event would give rise to a national security risk. I set out here that the factors that would be excluded would cover any,

“adverse effects on levels of employment in the United Kingdom”,

or,

“the existence or extent of opportunities for persons resident or established in the United Kingdom to invest in, or make sales in or into, another jurisdiction”,

and the desire to protect UK businesses from international competition.

I accept that the amendment might not be necessary if we had established a definition for national security but, given that we have not achieved that, I am keen to press this as a probing amendment and include a clause such as this in the Bill, thereby making clear that certain factors such as employment effects, reciprocal investment and trade, and protectionist connections would not be deemed to be trigger events. With that brief explanation, I beg to move.

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

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering, with whom I am often in agreement—although, I am afraid, not in this case.

In my little over a year in your Lordships’ House I have noticed a strong tendency for Members to sign up to speak on amendments that they support and not those that they oppose. However, this has a clear and damaging effect, and slants the debate. Proponents get to put their case and the Government attempt to bat it away, often on merely technical grounds, and only one side of the argument is put. That sets the tone of the debate beyond just that day; it unbalances it. There is also the issue that, on Bills such as this, as a noble Lord said earlier, we often have an accountant followed by a banker followed by a lawyer. That is not a representative sample of society or opinion. It is for that reason that I signed up to speak on the amendment and express my strong opposition. I will be brief but clear.

The earlier groups of amendments on which I spoke, including Amendment 2, sought to define the national security on which the Bill seeks to allow the Government to act. The amendment does the very opposite by seeking to restrict the Government’s hand. The former amendments were “have regard to” amendments. This is a “shall not be taken into account” amendment. It is extremely ideological and seeks to assert the primacy of the market and the interests of business—which, by definition, given the nature of the Bill, is almost certainly big business, giant multinational companies—over what might be regarded as a key concern of the Government regarding employment. That is also, I would strongly argue, a national security issue—certainly a public order issue—with regard to Amendment 2.

The market is a human creation, not some natural process or action such as photosynthesis or the tides. To say that the market should have primacy over the well-being of society is a profoundly ideological argument that would have been very strange for most of the 20th century and reflects a particular neoliberal political position. Again, we are back to talking about investor confidence and the idea that we have to be a competitive nation—the very ideology that led us to the 2007-08 financial crash.

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[Lord Callanan (Con)]

I thank everybody who has spoken in this debate and thank my noble friend Lady McIntosh of Pickering for tabling the amendment. It seeks to clarify that certain factors, namely employment effects, reciprocal investment or trading opportunities and the desire to protect UK businesses from international competition, cannot be taken into account in assessing whether a trigger event would give rise to national security risks. I was surprised to see that the noble Baroness, Lady Bennett, and my noble friend Lady McIntosh are now differing on some things. That is most unusual; it is something to be encouraged for the future.

My noble friend articulates a reasonable concern here: that a regime used to screen investment for national security purposes could be used to screen investments more widely. Indeed, the shadow Secretary of State, in his opening speech at Second Reading in the other place, argued that the Bill should include an industrial strategy test—I was therefore surprised to see the noble Baroness, Lady Hayter, supporting this amendment.

As such, I have some sympathy with the aims of this amendment. I can, however, reassure my noble friend that the Bill is about protecting national security, nothing more and nothing less. The Bill does not set out the circumstances in which national security is, or may be, considered at risk. As I said on previous groups, this reflects long-standing government policy to ensure that national security powers are sufficiently flexible to protect the nation. The Bill also does not include factors which the Secretary of State must or may take into account when assessing national security risks. Instead, factors that the Secretary of State expects to take into account in exercising the call-in power are proposed to be set out in the statement that we have provided a draft of and is provided for by Clause 3.

The draft statement, published upon introduction of the Bill, includes details of what the Secretary of State is likely to be interested in when it comes to national security risks. This includes certain sectors of the economy, and the types of acquisitions that may raise concern. It does not currently state anything which the Secretary of State intends not to take into account with regard to national security. This is a conscious choice. If the Secretary of State were to start listing areas of the economy or types of acquisition that he considered unlikely to present national security concerns, I suspect that this would result in a long and dense document of little use. We judge that it is therefore more helpful for businesses and investors to set out where the Secretary of State is more, rather than less, likely to use the call-in power.

I understand, however, the concern that without a definition extraneous factors may be taken into account. My reassurance for my noble friend comes from the courts. Were the Secretary of State to seek to use the powers in the Bill for a purpose beyond national security, his decisions could be challenged in the courts through judicial review and could not be successfully upheld. It is with this judicial oversight in mind that the Secretary of State is constrained in delivering the purpose of the Bill. I am therefore confident that the Bill as currently drafted contains sufficient safeguards against inappropriate use of the regime, and that the Government are already providing a good amount of information for parties affected by the regime on its likely areas of focus.

I hope that my explanation, taken together with these points, provides sufficient reassurance to my noble friend, and that she therefore feels able to withdraw her amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to all those who have spoken in the debate, particularly my noble friend Lord Hodgson, and the noble Lord, Lord, Clement-Jones, for their eloquent support.

Like the Minister, I am slightly baffled by the sudden lack of support from the noble Baroness, Lady Bennett, with whom I have enjoyed a deeply cordial relationship. I obviously take issue with a number of issues to which she referred, not least setting out the importance to the economy of foreign investment, which is well established and repeated in the national security and investment government response published, I understand, this week. I also take issue with the fact that I am not a great expert on the financial crash, although I seemed to lose an awful lot of the small amount of money I had invested in the stock market. What is the saying about how to make a small fortune in the stock market? I have forgotten, but, anyway, that burnt my fingers.

I believe that the start of the financial crash was actually in the US, with the selling of mortgages, both in the US and here, for a greater value than the value of the property, and a lot of grief was caused as a result. I am pleased that my noble friend Lord Callanan feels that the Bill is still perfectly formed and fit for purpose, but I beg to differ. My noble friend referred to the statement in Clause 3, but we are told that the Secretary of State only “may” publish such a statement. Clearly, it would be immensely helpful to have such a statement at this stage, if possible, to give an indication of the direction of travel.

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My question, therefore, is: what currently would prevent an identical or near-identical statement to a rejected statement being relaid immediately or is it just that it is against convention? I am not sure whether convention necessarily always holds any more but I am not the best on these constitutional things. If you need Amendment 11, I am all for it. It is a good thing to have something that makes such a rapid retabling respectable, and it may also mean that it is less challengeable and in general it might also imply that other mechanisms of rapid relaying are not possible. Can the Minister explain to me what the relaying process is and what are the limitations that are imposed by the obligation to consult but only to the level that the Secretary of State thinks appropriate? However, if we need Amendment 11 and it positively does something, I will support it.

[Baroness McIntosh of Pickering (Con)]

My Lords, in the spirit first put forward by my noble friend Lord Vaizey, I would like to tease the Minister at this point, if I may. Clause 3 states:

“The Secretary of State may publish a statement for the purposes of this section if the requirements set out in section 4(1) are satisfied”,


and now we have government Amendment 12, which amends Clause 4 to state that responses to the consultation may be required to be pursued through. What is the situation, if one might occur, if the Secretary of State chose not to publish a statement? Does the Bill permit that in this regard, and what would be the circumstances in which the Secretary of State may decide not to publish a statement?

[Lord Fox (LD)]

My Lords, as the noble Lord, Lord Lansley, said, government Amendments 37 and 75 are technical and Amendment 12 covers the ground of Amendment 11, so I will speak to the latter. I am broadly supportive. Clearly, this is an issue about “may”—my noble friend Lady Bowles and the noble Baroness, Lady McIntosh, asked the same question. If “may publish” means “may not publish”, where are we in this process, given that the statement is such an important part of setting out the modus operandi of the whole Bill? This is quite an important area.

I support Amendment 11 but it will be important to listen to the Minister’s response to decide how this might go forward in the next stage. I believe that some degree of accountability should not be left as an option to the Secretary of State; there should be an obligation on the Secretary of State to make that statement and, as the Government have said, to have the ability to remake it.

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Moved by

[Baroness McIntosh of Pickering]

14: Clause 6, page 4, line 11, after “may” insert “following consultation with relevant stakeholders”
Member’s explanatory statement
This amendment would impose a duty on the Secretary of State to consult relevant stakeholders when making regulations as specified.

[Baroness McIntosh of Pickering (Con)]

My Lords, Amendment 14 in my name came about as a result of my working closely with the Law Society of Scotland. I am very grateful to the society for drawing to my attention the fact that, on the present reading of Clause 6, the Secretary of State may make regulations without any further consultation in that regard. The reason for the amendment is that this consultation provides an additional layer of scrutiny by all interested parties. The requirement on the Secretary of State to consult will help to ensure openness and transparency of the Secretary of State’s actions. Imposing a duty to consult will ensure that any draft statutory instrument is exposed to critical comment from stakeholders, which may improve an instrument and help to avoid difficulties when it comes to progressing through Parliament.

All this assumes that the Government will actually pay attention to consultation and the results. It is felt that the provision as drafted gives the Secretary of State very wide discretion to amend the scope of notifiable acquisitions as per the present drafting of Clause 6(5). This can have far-reaching consequences, not least because, as set out in Clause 6(6), it may be used to extend the scope of notifiable acquisitions to acquisitions of qualifying assets. In particular, I want to put on record that Clause 13 states that where a notifiable acquisition takes place without the approval of the Secretary of State, this transaction will be void, although under Clause 15(2) and (3) the defect can be cured retrospectively.

This amendment addresses a concern that there will be a lacuna in relation to the impact on third parties. In particular, if the qualifying asset in question is land, and if it were to be established that a transaction had been void and that the ownership or other interest in the land had not been properly transferred, questions of liability may arise. This could be the case, for example, in relation to environmental or insurance liabilities. Although it appears that the third party would have an action under Clause 16, we are concerned that this could be both burdensome—that is the Law Society expressing its concern—upon that third party and unnecessarily complicated. There is also concern that it might not resolve all the relevant problems.

I welcome my noble friend to her speaking position, for once, this evening; I hope that this is not just paying lip service to diversity. If the Government are not minded to accept this amendment, can she say what the purpose is of introducing regulations at what would be quite a late stage and without having consulted at all with interested parties or stakeholders?

[Lord Fox (LD)]

My Lords, I fear I might have missed a trick here. I think we have two quite different amendments and I should have been smarter and disaggregated Amendment 94 from Amendment 14. I apologise to the noble Baroness, Lady McIntosh, that I am not going to speak to Amendment 14, although I firmly believe that my noble friend Lord Bruce of Bennachie will speak to it later. I will speak to Amendment 94 in my name and that of my noble friend Lord Clement-Jones.

Under Clause 6 the Secretary of State has great power to make the regulations concerning how this Bill will work. The Secretary of State can specify the description of the qualifying entity for the purpose of identifying a notable acquisition. He or she can amend the circumstances in which a notifiable acquisition takes place or does not take place, exempt acquirers with specified characteristics from the mandatory notification regime and make consequential amendments to other provisions of the Bill. These will be set before Parliament using the affirmative procedure. This was confirmed by one of the other documents that was circulated just before our proceedings began today.

For the commencement of the regime, the Secretary of State intends to make regulations only to specify the sectors subject to mandatory notification—that is, the 17 sectors we have already referred to elsewhere in this debate. This covers the activities of the entities of both sectors which give rise to an elevated national security risk. In the Government’s own words:

“Mandatory notification of certain types of transactions in 17 key sectors will ensure that the Government is informed of potential acquisitions of control or ownership in these particularly sensitive areas”.


As we have heard, using this list they will take action to investigate and mitigate any national security risk. The list is central to the workings of this regime. Therefore, so is the making and updating of it.

For the avoidance of doubt, and possibly to bore the Committee, I want to put on record the length and breadth of this list. It includes advanced materials, advanced robotics, artificial intelligence, civil nuclear, communications, computing hardware, critical suppliers to government, critical suppliers to the emergency services, cryptographic authentication, data infrastructure, defence, energy, engineering biology—which has now been commuted to synthetic biology—military and dual use, quantum technologies, satellite and space technologies, and transport. We heard from the Minister that in fact the Secretary of State can extend beyond this list if he or she feels it appropriate.

The so-called slimline version was published today, as mentioned by the noble Baroness, Lady Hayter, who has just popped out. She referred to the artificial intelligence sector which has been “slimmed down” to the identification of objects, people and events, advanced robotics and cybersecurity. The underlying software for that is going to be machine learning, and therefore that includes all artificial intelligence. While on the face of it this has been narrowed down, the reality is that if a Secretary of State so chose, anything involving machine learning could be dragged into this process. We need to be very wary of this list, which can be expanded and changed over time.

I expect that the Minister will choose to represent the proposed use of the affirmative procedure in the Bill as meaningful parliamentary scrutiny, but in truth the list can be amended by this and any subsequent Government as they please. For one thing, Parliament cannot amend statutory instruments, and for another, this House has voted down affirmative statutory instruments just four times in the past 70 years. That is nearly as long as my noble friend Lord Clement-Jones has been alive. As the Constitution Committee noted in its 2018 report The Legislative Process: The Delegation of Powers:

“Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable”.


Affirmative statutory instruments do not constitute meaningful parliamentary scrutiny. This Government, or any subsequent Government, are effectively free to amend that already long list of technologies at will, so we need some sort of genuine democratic process. I am indebted to my noble friend Lord Sharkey; he proposed a very similar amendment to the Medicines and Medical Devices Bill, and I have ruthlessly plundered his thinking as it is just as apposite to this Bill.

As noble Lords know, there is a delegated legislation procedure that allows for significant parliamentary scrutiny. To the Government, it is known as “exceptional procedures”, and to Erskine May, in part 4, chapter 31.14 as the “super-affirmative procedure”. Erskine May characterises it as follows:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form … the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.”


Amendment 94, in my name and that of my noble friend Lord Clement-Jones, follows this pattern; it is more generally based on the variant of the procedure used by the Government of the day in the Public Bodies Act 2011, so it is not a stranger to government. It refers to the Secretary of State’s regulation-making powers and includes the long list of technologies that I have just read out.

First, the Secretary of State must lay before Parliament a draft of the proposed regulations and a document explaining them; secondly, he or she must request a committee of either House whose remit includes science and technology and business to report on the draft regulations within 30 days; thirdly, in proposing a draft statutory instrument containing the regulations, the Secretary of State must take into account any representations, any resolution of either House and any recommendations of the committee to which the draft was referred. After the expiry of the 30-day period the Secretary of State may lay before Parliament regulations in terms of the original or the revised draft. The Secretary of State must also state what representations, recommendations or resolutions were given in the 30-day period and give details. He or she must also explain any changes made in a revised draft. After that, the normal affirmative process continues.

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[Lord Fox (LD)]

I anticipated the Minister’s answer on the subject of time, and 30 days is 30 days, but the Government have shown that they are relatively adept. If there really was a national security emergency requiring quick action using other means, a statutory instrument with a debate in Parliament would act as a plug. My noble friend Lord Clement-Jones made the point that there is such significance, particularly around this list but also around the other elements of Clause 6, so I hope that the Minister will read Hansard and at least find some way of moving towards the very valid arguments that she has heard today on both amendments.

[Baroness McIntosh of Pickering (Con)]

I thank all those who have spoken on both amendments. The noble Lord, Lord Fox, will recall that we had a lengthy debate about the super-affirmative procedure during the passage of the UK Internal Market Act. I deeply regret that we did not go down the path of that procedure, for reasons that I gave. My noble friend the Minister cares passionately about Wales, and I hope that she will care equally passionately about Scotland and will be prepared to meet with me to bring these matters forward, because I do not accept that it is enough just to have regard to the public law requirements.

The Law Society of Scotland has identified three ways in which these regulations could move the parameters forward which I would like to discuss on a wider basis with her. While an official in the department said that it is not expected at this stage that those three areas will be covered, it is not excluded that that will happen in the future. I want to come back to that, but for the moment, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Domestic Energy Efficiency: Retrofitting

Baroness McIntosh of Pickering Excerpts

Monday 1st March 2021 Lords Chamber

[Lord Callanan (Con)]

The noble Lord makes a very good point. I have received a number of representations from rural landlords and others on these matters. We recognise that improving older rural properties may be more challenging. That is why we have provided an incentive for off-gas homes to be insulated under the current eco-system and will focus the future home upgrade grant on poorer performing homes. The noble Lord will also be aware that we produced a range of exemptions under our minimum standards regulations for homes that are too expensive or too difficult to improve.

[Baroness McIntosh of Pickering (Con)]

My Lords, I remind the House of my interest as president of National Energy Action. Will my noble friend work closely with bodies such as NEA to ensure that the least-efficient homes will obtain the highest amount of warm home grants and other grants that are available through the government schemes?

[Lord Callanan (Con)]

We work with a wide range of organisations. My noble friend is right to point out that it is important that we target the poorest-performing homes for the first and most urgent action. We will certainly do that as far as possible under many of the current schemes.

Trade Bill

Baroness McIntosh of Pickering Excerpts

Consideration of Commons amendments
Tuesday 23rd February 2021 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

In subsection (3), at end insert—

6G: “(g) food safety, hygiene and traceability.”

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[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Motion C2 I will speak also to my Motion C3. I first take the opportunity to thank my noble friend the Minister for all he has done in taking this Bill forward, in particular for meeting what we like to call the four wizards—the noble Baronesses, Lady Hennig, Lady Jones of Moulsecoomb, Lady Ritchie of Downpatrick and me—last week to talk through the standards amendment, in particular.

I do not wish to appear churlish by tabling the amendments and debating them today, because I appreciate that the House owes a great deal to my noble friend Lord Grimstone for ensuring that the amendment of the noble Baroness, Lady Fairhead—also known as the “Lord Purvis amendment”—has reached, to date, where we are. I pay great tribute to my noble friend for ensuring that that is the case but, as we did with the Fairhead amendment, the three wizards and I tabled a similar amendment to ensure that food safety, hygiene and traceability will form part of the Bill, and I would have preferred to see this in the Bill.

The reason for that is not just what I as a humble Back-Bencher might feel is appropriate, but what the Government’s own national food strategy adviser concluded in his interim report. He said specifically that food safety and public health, alongside environment and climate change, society, labour, human rights and animal welfare should be included in future trade deals.

As the noble Lord, Lord Purvis, said in concluding an earlier debate on the amendments before us today, we are in limbo and there appears to be a legislative void at present on what happens to future trade agreements. I congratulate him, because he managed to secure a debate on the free trade agreement with the Faroe Islands, in which I take a particular interest, being half-Danish—I am probably one of the few Members of your Lordships’ House to have visited the Faroe Islands. That is a very asymmetric agreement. The noble Lord mentioned that at the time and I totally agreed. We export £80 million-worth of products to the Faroe Islands; we take, I think, something like three times that back—mostly fish, so I hope that the Scottish fishermen are not aware of the asymmetry of that agreement.

There is yet to be a debate on the free trade agreement with Kenya, so I look forward to the opportunity to debate that at the earliest opportunity. We did have the opportunity to debate the enhanced rollover agreement with Japan, which was very welcome.

The reason I tabled the two amendments before us today is on the back of what the noble Lord, Lord Grantchester, said. I supported his amendment at the previous stage and was disappointed to see that it will no longer be on the table, if he is not inclined to press it. The amendment included issues which will now fall: in particular, food standards, on which the NFU had a highly successful campaign, reaching 1 million signatures. That was reflected in earlier amendments which were carried at previous stages.

My concern is that the Food Standards Agency will now report to the Secretary of State for International Development on public health issues and food safety; it will no longer be in the remit of the Trade and Agriculture Commission in this regard. That is disappointing on three levels.

As the noble Lord, Lord Grantchester, said, it was the expectation in Section 42 of the Agriculture Act that it would be the remit of the Trade and Agriculture Commission, and to me it was a great achievement that food standards and food safety would be dealt with in the Trade and Agriculture Commission report, which both Houses of Parliament would be able to scrutinise. If it is now to be subsumed within the Secretary of State’s report—on which, we hope, the Grimstone principle ensures that we will have a debate in this place, and the other place, if it is deemed appropriate—we will be able to scrutinise the Trade and Agriculture Commission’s report and the Secretary of State’s report but not the advice from the Food Standards Agency. That is a matter of great regret. It must also be mentioned that the Food Standards Agency falls within the remit of the Department of Health, and neither Defra nor the Department for International Trade have regular ongoings with it.

I will also take this opportunity to support government Amendments 6C to 6E, but on Amendment 6E, I press the Minister, when he responds to this debate, to clarify its purpose. If the devolved Parliaments, Assemblies and Administrations will have the opportunity to comment on trade agreements, that is all to the good, because this was raised with us as an issue of great concern in proceedings before the EU Energy and Environment Sub-Committee, where we met our opposite committee in the Scottish Parliament. It also raised the fact that under the Trade and Co-operation Agreement which has been reached with the European Union, there may be divergences, not just in environmental standards between the UK and the EU but within the UK and the four devolved nations here. That is a matter of some concern to me. I hope that my noble friend will confirm that Amendment 6E will improve that situation and put the minds of the devolved nations, Parliaments and Assemblies at rest.

I congratulate my noble friend on ensuring that Amendment 6C not only brings back to the table the amendment of the noble Baroness, Lady Fairhead, but, as he explained, will extend to data protection and the protection of children and vulnerable adults online. I commend in this regard the work of the noble Baroness, Lady Kidron, which received such support through the Bill’s passage in this place. I also entirely endorse the work of the noble Baroness, Lady Thornton, who brought the NHS to the fore during earlier stages of the Bill, and I think it is appropriate that Amendment 6D reflects that.

I conclude by saying that I hope that if I am unsuccessful in persuading my noble friend to accept my amendments before the House today, there will be future opportunities to do so in the context of consideration of future trade agreements—which, under the Grimstone principle, we have agreed will take place. So, as the Bill sets the tone for future trade agreements, I regret that the issue of food safety and food standards remains open, as we leave the situation today.

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

The following Member in the Chamber has indicated a wish to speak: the noble Baroness, Lady Jones of Moulsecoomb.

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

My Lords, it is a great pleasure to make my closing speech on this motion with such a spirit of compromise and good will around the House. I thank noble Lords for that and will try to spread a bit of that good will towards food safety when I come to it in a moment.

This Trade Bill was always designed—it seems a long time ago now—to have continuity trade agreements at its heart; I apologise for constantly trying to bring noble Lords back to that. That is because its Clause 2 power, given that the noble Lord, Lord Purvis, failed in his attempts to widen it, allows for the implementation of agreements only with a third country with which the EU had a signed agreement prior to exit day. It does not apply to future agreements with countries such as Australia, New Zealand and the USA. Interestingly, I am advised that successor agreements which derive directly from continuity agreements—for example, those with Canada and Mexico—will be within scope of Clause 2. If I need to elaborate on that, I will write a letter to the noble Lord.

I have said before, and say again, that the UK has a long track record of high standards across all areas. We should be proud of that, and the Government are keen to ensure it continues. However, I realise that, no matter how many times I stand here and repeat this, it will never be enough for some noble Lords. I appreciate that, but I say to them—this is the important point—that Parliament always has the final say. If it believes that the Government of the day have not kept their word and have negotiated an FTA that has reduced standards, it can refuse to ratify or, perhaps more importantly, refuse to agree with the legislation that will be necessary to implement future trade agreements not covered under our Clause 2 powers. It would be more than illogical—it would be foolish—for any Government to negotiate an agreement that they knew could not gain the approval of Parliament.

In direct answer to the noble Lord, Lord Grantchester, who spoke with his normal sincerity and conviction, we do not yet know what form future legislation for future trade agreements will take. We know that it will be necessary in certain circumstances, but it will mean that I have the pleasure of standing across from the noble Lord at the Dispatch Box on future occasions.

I will touch on the very important issue of food safety, which was raised by my noble friend Lady McIntosh, in her Amendments 6G and 6H. I had a helpful conversation with the four musketeers, the noble Baronesses, Lady Henig, Lady McIntosh of Pickering, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, last week, who asked me to provide greater clarity on this issue today. I can provide assurance that the Government’s proposed amendment also addresses food safety. It includes references to

“the protection of human, animal or plant life or health”,

among other issues. I am advised that that is the definition of sanitary and phytosanitary measures, as outlined in the WTO SPS agreement, and that it incontrovertibly includes matters relating to food safety. So, food safety is included in the amendment; it just has not spelt it out specifically.

Decisions on food safety standards are made outside of negotiations and are informed by the advice of our independent food standards agencies. As we know, all imports must abide by our food safety standards. The Government have also recently enhanced our commitments on scrutiny of food safety and standards in new FTAs, as an additional reassurance. Again, I congratulate Peers, as Section 42 of the Agriculture Act requires the Government to produce a report on whether provisions in new FTAs are consistent with statutory protections for human, animal and plant health, animal welfare and the environment. I am pleased to give the complete assurance that human health includes food safety, as well.

We will be consulting with the independent food standards agencies when producing our report, which will be published ahead of CRaG. These are independent agencies that have the ability, and normally the desire, to produce their own reports and make their views public. Even though this is a matter for them, I would be surprised if they did not want their views on such an important matter to be made known before the House considers such agreements.

The Government have listened to the concerns of noble Lords. We brought forward this amendment in the other place and it secured a majority. I say with caution that no other standards-related amendment proposed by this House has ever come close to doing this. I hope that noble Lords feel that we worked constructively with this House and kept our promises, and join me in voting for the government amendment and taking a decisive step in enacting this Bill into law. I hope that all agree that now is the time for us to move on with this important question, and not to delay the passage of this important legislation any further.

[Baroness McIntosh of Pickering (Con)]

First, I record my endless gratitude to the Minister for his consummate charm and patience, at every stage, and for taking the opportunity to speak to the gang of four, last week. He started by saying what a major development it was, and I echo him, that the Trade and Agriculture Commission is now on a statutory footing. You can imagine our disappointment that, having achieved that, reports to the House for a debate on food standards and safety in a future trade agreement will go through a body such as the Food Standards Agency, which we will not be able to hold directly to account.

Nevertheless, I welcome the assurances that my noble friend has given on the inclusion of food safety. That is something to celebrate. I join with others who have said that this will not go away and that we will revert to it, for future agreements. I am pleased to have made this point and I pay tribute to all, including the NFU, farmers, producers and consumers, who care so passionately about our food standards and levels of food safety. At this stage, I beg leave to withdraw.

Motion C2 (as an amendment to Amendment 6F) withdrawn.

Electricity Supplier Payments (Amendment) Regulations 2021

Baroness McIntosh of Pickering Excerpts

Tuesday 23rd February 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness, Lady Ritchie of Downpatrick. I thank my noble friend the Minister for introducing the regulations, which I intend to support. I am also grateful to the Secondary Legislation Scrutiny Committee for its report and the two paragraphs it allocated to this issue, which it obviously does not deem to be one of great concern. However, I would like to press my noble friend on a couple of issues arising from that report and the Explanatory Memorandum.

I understand that the regulations and the CfD scheme are the main mechanism for supporting new renewable electricity generation projects in Britain, and that the CfD counterparty enters into and manages CfDs with low-carbon electricity generators, so this is something we wish to support. I want to press my noble friend on whether there have been more surges in electricity supply of late, and whether this is because more of us are working from home, as other noble Lords have referred to, and fewer people are using electricity in the workplace.

Paragraph 33 of the Secondary Legislation Scrutiny Committee’s 44th report sets out the increases that BEIS estimates as the total impact of the new levy rates. They sound very reasonable: 40 pence

“on the average annual household electricity bill”

—noble Lords will be interested to know from my noble friend whether that will go up if we continue to work from home—and

“£30 for a typical small-sized business (using around 250 megawatt hours per year) and £1,200 for a typical medium-sized business (using around 10 gigawatt hours per year).”

The department concludes that rates will be

“less than 0.1% of these users’ electricity bills”,

so I presume that those figures will not have changed.

Paragraph 12.1 of the Explanatory Memorandum attached to the regulations states, quite emphatically:

“The impact on business, charities or voluntary bodies is limited.”


However, as there has not been an impact assessment, we do not know that for sure, so can my noble friend confirm that nothing of concern—to charities or voluntary bodies in particular—was raised in this regard in the consultation?

To what extent is the renewable electricity supply to which the regulations refer going to satisfy all the needs of those of us who will be asked to buy electric vehicles? Under the regulations, what will be the impact on future generations and auctions—particularly the next one—of the fact that more electric vehicles are being driven by private drivers, company drivers and, indeed, public transport, with many buses now running on electricity alone? It greatly concerns me that no one has yet told me—I would be delighted if my noble friend could do so—what the source of all the new electricity to run these e-vehicles will be.

I am still bruised by the fact that, as a rural dweller, I was encouraged to buy a diesel car, which I did, and I am now paying quite expensive tax for the privilege of running it. That is reflected in a higher polluter rate for diesel. I would like to know from somebody, at some time, that we will not pay a premium on electric vehicles because it is a very new form of power for vehicles, as opposed to the combustion engine.

Finally, I refer to paragraph 14.3 of the Explanatory Memorandum, which states that conclusions of the review of the first five years of operation of Section 66 of the Energy Act 2013, which introduced a number of aspects of the operation of the electricity market reform programme, were due and are now delayed. It would have been very helpful to have had the review before Parliament before we are asked to consider the regulations before us today. I understand that the delay is due in part to the fact that this department in particular has been very busy with preparing for the UK’s departure from the European Union and the impact of the Covid-19 pandemic. However, it would be helpful to know today when my noble friend expects the findings of the review to be laid before Parliament and when we might have the opportunity to study them.

With those few remarks, I look forward to my noble friend’s reply, but I wish the regulations before us today a swift passage through Parliament.

National Security and Investment Bill

Baroness McIntosh of Pickering Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 4th February 2021 Lords Chamber

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

My Lords, I welcome the noble Lord, Lord Woodley, and congratulate him on his maiden speech. I also congratulate my noble friend the Minister on so ably introducing the Bill, with its ambitions to control foreign investment. I welcome the Bill in the broad and in principle, but I would like to highlight a number of points that I wish to explore during its passage.

The United Kingdom has a long and proud tradition of being open to foreign investment. What assessment have the Government made of the impact on foreign investments within the remit of the Bill, especially in terms of British technology and manufacturing sectors?

Both the Law Society of England and the Law Society of Scotland have highlighted a number of issues: in particular, why there is no definition in the Bill of national security. Also, the remit of the Bill is very loose and broad. While I appreciate that this is to be refined by secondary legislation, my noble friend the Minister will appreciate that we have very limited powers to review and scrutinise secondary legislation.

I welcome the consultation; I notice that transport is included within that. However, why have the Government proceeded with the Bill without the results of that consultation being known, processed and put before the House? I understand that the Government will put more detail in the secondary legislation, particularly on the transport aspects. But, once again, there is limited scrutiny over that secondary legislation, whereas if it was on the face of the Bill—as the 17 original sectors are—that would give us more powers to scrutinise and discuss this through its passage.

Like my noble friend Lady Noakes, I would like to ask specifically why the water sector is not covered. The provision of water to households and businesses is a strategic matter. It seems an oversight that it has not been included in the remit of the Bill. There may be a good reason for that, and I should be delighted if my noble friend the Minister would share that with us today.

In principle, I welcome the scope of the Bill and the opportunity we have today, and through its passage in Committee and further stages, to scrutinise it. The full remit of the Bill and particular definitions need to be properly understood. I welcome the opportunity that the passage of the Bill will provide in that regard. With those few remarks, I wish the Bill a fair wind today.

Covid-19: Night-time Economy

Baroness McIntosh of Pickering Excerpts

Tuesday 26th January 2021 Lords Chamber

Asked by

[Baroness McIntosh of Pickering]

To ask Her Majesty’s Government what assessment they have made of the impact of the restrictions put in place to address the COVID-19 pandemic on (1) the income of businesses working in, and (2) jobs related to, the night-time economy; and what steps they are taking to address any such impact.

[Baroness McIntosh of Pickering (Con)]

I beg leave to ask the Question standing in my name on the Order Paper and refer to my interest as chairman of the Proof of Age Standards Scheme board.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

The night-time economy includes businesses operating between 6 pm and 6 am and is therefore very broad. BEIS and DCMS sponsor the hospitality, entertainment, arts and culture sectors, all of which play a significant role in the night-time economy. Over the course of the pandemic, the Government have worked closely with businesses from across these sectors to understand their concerns, and have responded with £280 billion of funding to support businesses, retain jobs and provide support on backdated rents.

[Baroness McIntosh of Pickering (Con)]

I thank my noble friend for his Answer and for the support that the sector has received. I am delighted that he recognises the contribution that the night-time economy makes, in billions of pounds of revenue—in its heyday—and in accounting for 8% of the national workforce, with a high proportion of young people employed. Will he work closely with the Treasury to ensure that, going forward, specific support can be targeted on the fixed costs of those working in the night-time economy, such as rent, insurance, electricity and water, which amount to 15% of their turnover? To date, little targeted help in that regard has been given; this would be very warmly received and would ensure a return to a sustainable and vibrant future as soon as businesses are allowed to reopen.

[Lord Callanan (Con)]

My noble friend makes some important points. We will of course work closely with the Treasury, as always. The support package that the Government have put in place is designed to help businesses with their fixed costs. It includes the business rates holiday, the job retention scheme and various grants, and introduces a moratorium on the eviction of commercial tenants. The Government keep all these support measures under constant review.

Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) (No. 2) Regulations 2020

Baroness McIntosh of Pickering Excerpts

Tuesday 19th January 2021 Grand Committee

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

My Lords, I am delighted to follow the noble Baroness, Lady Jones, and contribute to this short debate on the regulations. I thank my noble friend the Minister for bringing forward the extension, as set out in the regulations, and for presenting it in such a clear and concise way. There is much in the regulations to commend.

I pay tribute to the Government for their generous support, as set out by my noble friend. He referred in particular to the retail and hospitality sectors. I became more familiar with the contribution of the night-time economy to both the London economy and that of the wider UK, in other major cities across the four nations, through the ad hoc committee report in your Lordships’ House on the Licensing Act 2003. At its height in 2019, the night-time economy contributed billions to the UK economy. As my noble friend set out, together with retail and hospitality, the wider night-time economy includes those who advise, PR people and all sorts of managers and so on—it is a much wider industry than it might appear at first, and they are very much in sight when we come to consider the regulations.

Like others, I will focus my questions on the Government’s exit strategy. I entirely support the regulations and the extension to 31 March, which will protect companies and ensure their longer-term viability, and that the focus will be on the petitioner to establish in court that any debt incurred is not Covid related. I accept that this is a payment holiday and, as my noble friend said, that the debt must be repaid at once, in so far as it can be.

I want to highlight the new role played by HMRC, as other noble Lords have referred to. To what extent will BEIS and my noble friend work with the Treasury and HMRC to ensure that they adopt a more supportive approach to businesses? That will help to ease the restructuring of those businesses facing potential insolvency and also, as HMRC is a key creditor, it is in its interests to keep such companies solvent. An even more beneficial effect could come from reducing the fees currently earned, as set out by the noble Lord, Lord Sikka.

We are assuming, as my noble friend Lord Bourne set out, that we will extend this protection beyond 31 March, but that it will at some point come to end. To what extent is my noble friend mindful of that? What protections or balance do the Government intend to put in place at that time?

These regulations are extremely important at this time and could protect many businesses, many of which are major employers, enabling them to remain in business and allowing them to restructure within the three-month period.

Trade Bill

Baroness McIntosh of Pickering Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 18th January 2021 Lords Chamber

[Lord Lansley (Con) [V]]

My Lords, I am pleased to have the opportunity to say just a few words about this amendment. Although it is technical, the intention is to provide clarity to that part of Clause 8 which sets out the procedure whereby the Government propose to implement an international trade agreement which has an impact on standards in domestic legislation relating to, for example, social, environmental or animal welfare standards. I completely understand that the intention of the noble Lord, Lord Grantchester, in tabling this amendment is to make it clear that the legislation relating to standards should complete its parliamentary processes, as the clause says, prior to the trade agreement being laid.

I am not really speaking about that aspect of it. Indeed, I draw attention to the fact that, notwithstanding Clause 8, Clause 7 has what I would regard—not least because I moved the relevant amendment at Report—as a better formulation, which requires the subordinate legislation, secondary instruments, to have been laid before the ratification of the trade agreement and for the primary legislation required for its implementation to have been passed before ratification. However, Clause 8, as clarified by this amendment, has the effect of meaning that the parliamentary procedure in relation to domestic legislation has to be completed before those texts are laid before Parliament. I think that is unnecessary and rather burdensome, and it would be better to rest on the text in Clause 7, which requires the legislation to have been passed prior to ratification.

The point I want to make is actually about impact assessments. If, in response to this short debate, the noble Lord, Lord Grantchester—who I see is, happily, now in his place—can explain why impact assessments should not be laid before Parliament prior to the completion of parliamentary processes relating to the implementation of domestic legislation, I would welcome that. That seems unnecessary—indeed, undesirable. It would be better were impact assessments formulated and laid before Parliament relating to domestic legislation which implements any change in standards in this country consequent to an agreement in an international trade context. For them not to be required by legislation to be laid before Parliament until the text of the trade agreement itself is laid seems unnecessary and undesirable.

I do not oppose the amendment, as it has the effect of making clear that subsection. However, what the subsection suggests, particularly for impact assessments, is undesirable. As it happens, as we dispatch the Bill to the other place, this clause rather duplicates what is set out in Clause 7. It would be better to retain Clause 7, rather than the formulation in this part of Clause 8.

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

My Lords, I welcome Amendment 1, as it brings greater clarity, and thank the noble Lord, Lord Grantchester—who I am delighted to see in his place—for bringing it forward.

I take this opportunity to put a question to my noble friend the Minister, and to thank him for the openness he has shown throughout proceedings on the Bill. Does he have a timeframe in mind as to when the code of practice, as envisaged under Clause 8, is to be brought forward? I imagine that is also subject to Amendment 1 before us this afternoon. Will the code of practice envisaged be general, or does he envisage that a separate code of practice for each future international trade agreement may need to come before the House?

As my noble friend is aware, I care passionately about maintaining the standards in paragraphs (a) to (f): in particular, food, animal welfare and the environment. Does he share my concern at the noises off, which are saying that, now we have left the European Union, we do not have to maintain those high standards? Can he, from the Government’s perspective, quash any such move, paying tribute to British farmers and to the high standards to which they produce our food, to which consumers have become accustomed and wish to continue to purchase? With that, I give Amendment 1 a warm welcome.

--- Later in debate ---

Finally, I come back to the linked issue of confidentiality of disclosure and the risks of that—whether in London, Edinburgh or elsewhere—in relation to the new export information that will be sought, and the information on imports, border security and transport flow, referred to in the following clause. Such information can be disclosed only with the agreement of HMRC, under the terms of the Bill. I very much took the Minister’s point last time that the devolved Governments take their responsibilities seriously, and I hope that experience justifies the Minister’s confidence on that. However, once information has been provided to any of our public authorities, can not a decision by Ministers, or a freedom of information request, reveal which companies or sole traders are exporting or importing, or give details of where and what, from which others can draw conclusions? I hope not, as this would be damaging to UK competitiveness, and could be used by foreign interests to gain an advantage at this critical time for UK plc. The Data Protection Act is useful but any further reassurance the Minister can give to our businesses and sole traders would be much appreciated.

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

My Lords, I welcome this group of amendments. I pay tribute to my noble friend and his colleagues, who have successfully engaged the legislative consent from the Scottish Parliament. I say that as someone of Scottish descent, and a non-practising member of the Faculty of Advocates.

I honestly do not believe that we would have got to this pass if it had not been for the intervention of a number of noble Lords, but especially the noble and learned Lord, Lord Hope of Craighead, among others, who intervened at all stages of what is now the United Kingdom Internal Market Act. I hope my noble friend will join me in paying tribute to the ongoing discussions on the framework agreements between the four nations that will be increasingly important as we develop trade, agriculture and environmental policy. But I am sure that there was more than a minor hiccup in engaging with the Scottish Parliament, so I congratulate him and I welcome these amendments in bringing us to that pass. Although he describes them as technical and not significant, I think they are a major step along the path to securing the passing of the Bill as it proceeds to the Commons.

[Lord Fox (LD) [V]]

Following two previous attempts spread over years, the Trade Bill seems finally to be making its way towards the statute book, perhaps by way of ping-pong. These amendments were described by the Minister as essentially technical housekeeping. I agree with him and certainly with the amendments, but perhaps it is appropriate that the final amendments we will discuss focus on inserting the Bill into the devolution settlement, as symbolised by the Scotland Act.

As the noble Baroness, Lady McIntosh, said, the Trade Bill is about setting Westminster’s role for the future, just as the internal market Bill did. I am pleased to hear about the legislative consent from Scotland and Wales, but in the past months these Benches have shown that we disagree with the way the Bill has avoided the effective involvement of Parliaments and Assemblies in the United Kingdom, taking a lot of power for the Executive.

But we have had those debates, and I will use this time to focus on some elements of the application the Trade Bill might enjoy. It is worth pointing out that the UK will be embarking on this so-called independent trade policy when the global trading environment is—how should I put it?—challenging. Even before the massive uncertainty of the global pandemic there were increasing trade tensions and a slowdown in the global economy.

Yet when I listen to the words coming from government mouths, I often hear echoes of British exceptionalism. Phrases such as “sovereign island nation”, when trotted out, seem to hark back to the 19th century. It is this backward view of the world that most disturbs me. I hear overtones that reflect the use of trade deals in a way that European nations did to compete for imperial domination in the 1800s.

At the heart of this is a total lack of understanding of the nature of modern global supply chains. Despite ministerial remonstrations when debating the Bill, it is impossible for me not to take the recent deals as examples of trade policy and how they are being applied. Of course, we could look at the rollover deals, but none of these has delivered anything material that we did not have before, so there is not much material there.

Then we come to the EU and UK deal. Clearly, there are substantial changes here that point to the direction we are travelling in. It is hard. It demonstrates this lack of understanding of how the flow of goods and services is facilitated by supply chains. Such flows are no longer maintained by access to the clipper ships of the East India Company, as this nostalgia seems to reflect, but nurtured by standards, people and data—three areas the EU trade agreement fails to enhance.

The role of shared standards and regulations is becoming only too apparent to our exporters struggling with serious border friction. Meanwhile, the lubricating effect to trade of mobility frameworks and mutual recognition of skills has yet to impinge on the wider public. However, I believe the tone of the Government’s responses to amendments addressing these issues will ultimately be seen as foolish. Finally, there has been no progress on data flows. That problem has just started.

Christmas Eve was not the end of this story; it was one step in a long process of negotiation. There will be protracted and difficult discussions about implementing the provisions covering trade in goods. We are starting to see this. Then there are two key areas outstanding. The first is financial services. Talks on an equivalence deal are taking place over the next three months, but this will exclude core banking services such as lending, payments and deposit-taking. If the EU and the UK fail to secure agreement, the UK will be left with the task of negotiating separately with 27 member states.

Then, as I said, there is data adequacy. The EU Parliament has severe reservations regarding sharing data with the UK. There is great suspicion over the potential onward transfer of data to the USA. Overcoming these fears will require much more than the Prime Minister looking into the eyes of MEPs and saying, “Trust me”.

However these go, the EU and the UK will remain in low-level dispute on all sorts of issues far into the future. Through all this, the UK will have to calculate the impact of whatever is agreed with the EU on its efforts to conclude bilateral trade agreements with other countries.

I question how the Government will use the much-vaunted freedom that they and the Prime Minister parade. As my noble friend Lord Purvis indicated, the UK Government are already looking for opportunities to diverge from the EU to demonstrate the symbolic value of Brexit and perhaps to pursue what they see as an advantage. Yet each change, each extra difference adds new friction to the EU-UK trade border. For every action there stands a possible reaction and a cost. We will see as time goes on whether the UK trade machine has the depth and sophistication to walk these lines. The weekend leaks on the working time directive and the Chancellor’s “big bang 2” speech seem to indicate otherwise.

The Bill sets a framework for trade. The Executive have taken upon themselves such powers that they will have no one else to blame for the results.

--- Later in debate ---

[Lord Mann (Non-Afl) [V]]

My Lords, as we near the end of lengthy deliberations over a long period, during which we have finally managed to leave the European Union, and now have to start to combat, economically, the greatest worldwide pandemic in many centuries—I do not think that is an exaggeration—I want to make a short contribution imploring the Government not to follow a tendency inbuilt in all Governments. When legislation has taken so long to put together and eventually receives Royal Assent, I implore them not to sit back and leave others to do the next stage. We in this country are good at appointing trade envoys to go out across the world but we are not nearly as good at taking the message inwards. If one thing strikes me more than anything else about what is needed with the freedoms that come from leaving the European Union and the complexities of recovering, at some stage, the economy post the Covid pandemic, it is that we will need to engender two things that will not come automatically.

The first is an entrepreneurial spirit. It is easy for politicians to talk about that but, when industrialists, business people and workers have been anchored down for so long with the pandemic and will continue to be in some way for some considerable time, entrepreneurship will not simply emerge quickly from nowhere; it will need encouraging, facilitating and inspiring.

The second thing, as part of that, will be the need for a new social contract, to use an old term in a modern setting, post Brexit. If those who own and work in our businesses are not on the same wavelength, with the same motivations and moving in the same direction, that entrepreneurship will be severely hampered. The innovations will be concepts rather than delivered goods and services that boost our economy. The Government need to decide whether we will be an economy that trades cheap and cheerful or as the best in the world. That choice will be made in the next 18 months and will last for many years to come.

I implore the Government to go inward into our industrial heartlands of the past, taking the message of this Trade Bill about what trade means and re-establishing that social contract—the message that we are all in this together. The UK, with its new freedoms, will prosper and thrive if we do so on the basis of being the best, rather than the cheap and cheerful back end of the industrial world, I hope that Ministers from this department will take the lead in doing that.

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

My Lords, I pay fulsome tribute to my noble friends Lord Grimstone of Boscobel and Lord Younger of Leckie for their stewardship of the Bill, bringing us to where we are today. I join my noble friends in also paying tribute to my noble friend Lady Fairhead for originating the original Bill, to which I also contributed.

My noble friend has alluded to all those who contributed, and I join him in thanking all the officials who have helped us—notably, his private secretary and the Bill team. I also thank the doorkeepers, the attendants and those in the Printed Paper Office and the Public Bill Office, who have worked exceptionally hard on the Bill. I thank, too, the catering staff, who have ensured that, while we have been meeting in this House, we have been well fed and watered.

My noble friend alluded to the fact that the Bill has changed during its passage in this House before it proceeds to the ping-pong stage. I echo the concerns expressed by the noble Lord, Lord Curry of Kirkharle, that the food standards agencies of the four nations will be asked to advise on human health. There is a concern over how they will report on and feed the human health aspects into the other two reports to which my noble friend referred.

I also extend warm thanks to the Law Society of Scotland, which briefed me at various stages of the Bill to ensure that Scottish concerns—particularly those of the legal profession in Scotland—were heeded.

The noble Lord, Lord Stevenson, referred to “Hamlet”. Obviously that was set in Denmark, with the Prince of Denmark being the main player. I end by thanking my noble friend Lord Grimstone, who has emerged as the swan, with the rest of us being the ugly ducklings. He has had an aura of calm at every stage of the Bill, and I am sure that he has been serenely paddling underneath. I thank him and congratulate him and other noble friends on getting the Bill to this stage today. I look forward to the ping-pong stage to see how the unfinished business, particularly relating to the CRaG procedures and the other domestic legislation and the regulations they put in place, plays out.

[Lord Grimstone of Boscobel (Con)]

My Lords, on behalf of myself and everybody else referred to, I thank noble Lords for their most generous comments. I constantly stand in awe of the expertise in our House and the courtesies with which views are expressed. With a sense of relief, I beg to move that the Bill do now pass.

Agreement on Climate Change, Trade and Sustainability

Baroness McIntosh of Pickering Excerpts

Monday 11th January 2021 Lords Chamber

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

My Lords, will my noble friend take this opportunity to confirm once again that we will maintain high standards in environmental protection, food safety and animal welfare? It is concerning that the ban on neonicotinoid pesticides—intended to protect bees—has been extended for only a limited period. Can the Minister assure the House that we will hold to the high standards we enjoyed while we were members of the European Union?

[Lord Grimstone of Boscobel (Con)]

My Lords, absolutely; I am happy to give that assurance on these important areas. We certainly did not see that an advantage of leaving the European Union would be that we could lower standards in these areas.

Trade Bill

Baroness McIntosh of Pickering Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Lord Wigley (PC) [V]]

My Lords, I am delighted to follow the noble Baroness, Lady Bennett, and to support very warmly the vital point made by the noble Lord, Lord Hain, who has shown such great commitment to Northern Ireland over the years and continues to do so, particularly in the dimension of the Brexit process. I also warmly support the comments made by the noble Baronesses, Lady Ritchie and Lady Altmann, and the noble and right reverend Lord, Lord Eames. I address these remarks particularly to subsection (1)(b) of the new clause proposed in Amendment 26, relating to goods originating in, or moving from, Northern Ireland and entering Great Britain.

Assurances were given to business in Northern Ireland by the Prime Minster that there would be no bureaucratic hindrances whatever on the goods they trade with other parts of the United Kingdom. It now appears that in some circumstances there can be documentary imposition placed upon them. This has serious implications for those selling such goods and those operating ports such as Holyhead. I remind the House that many of the products from Northern Ireland destined for UK markets have in the recent past been coming via Dublin and Holyhead. This is a matter I have repeatedly raised here in the Chamber. If trade such as this requires documentation, whereas trade directly from Northern Ireland to English ports does not, clearly this represents discrimination against Holyhead whether the goods, or part of them, originated wholly in Northern Ireland or were partly imported from third countries.

Holyhead has already suffered in recent days since the conclusion of the Brexit deal, with shipments that previously would have come from Dublin via Holyhead to English markets or on to continental markets now shipped from other locations in Ireland and not coming via Holyhead. Some, indeed, are going directly to the European mainland. We need clarification, so I hope that the Minister will accept Amendment 26 and can give some assurances, which are needed by those operating the port of Holyhead.

[Baroness McIntosh of Pickering (Con)]

My Lords, I seek clarification on Amendment 26. We were promised unfettered access to the Northern Ireland market. I am privileged to sit on the EU sub-committee on the environment, which has taken a great deal of evidence on food producers, hauliers, and others in connection with trade between Great Britain and Northern Ireland in the run-up to the agreement now in place from 1 January 2021.

This unfettered access is clearly not in place. Although the briefing I was fortunate to receive last week from the Food and Drink Federation says their concerns in this regard are reduced, they certainly remain. One of the difficulties relates to sausages, which seems to cause great hilarity because of the “Yes Minister” sketch that keeps being revived. Sausages and processed foods such as pies, in the short term, are apparently not permitted to enter the Northern Irish market. Are the Government, including the Minister and his department, aware of this? I know that there is a longer-term concern over these goods as well as milling flour, rice, some sugar products, and seed potatoes to the rest of the European Union, but there is the short-term issue of exporting these goods to Northern Ireland. I imagine that this is an unforeseen consequence of the deal which was announced at very short notice. I would be grateful for a commitment from my noble friend to ensure that this will be resolved and that sausages, whether made in north Yorkshire by Heck or other producers across Great Britain, will have access sooner rather than later to Northern Ireland.

What is the position on the time and cost to be taken on issuing export health certificates? Does my noble friend share my concern and that expressed by others, including the British Veterinary Association, of which I am an honorary associate, about the shortage of vets and potential impact on exports and movement between Great Britain and Northern Ireland in this regard?

There is a need for a provision along the lines of Amendment 26, and I look forward to hearing what the Minister has to say to allay my fears.

--- Later in debate ---

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

My Lords, it is a pleasure to follow the very humble noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Kramer. I shall speak to Amendment 27, which stands in their names and to which I have added mine. I shall also speak to Amendment 47, in the name of the noble Lord, Lord Bassam of Brighton, to which I have attached my name, and to Amendment 48, which I think might best be described as a friendly amendment to Amendment 47, as it makes just a small addition to it.

As the noble Baroness, Lady Kramer, said in introducing this group, these amendments very much fit together. Amendment 27 refers to the fact that the TRA should listen to a wide range of representative groups. That very much relates to the debate on the preceding group, where the noble Baroness, Lady Boycott, and many others made a powerful case for the importance of food standards and labelling standards. If consumers were listened to by the TRA, it would certainly be very helpful. As we are in a climate emergency and a nature crisis, we need to make sure that expert voices from that area are listened to as well. It is something that perhaps we do not always see traditionally as part of trade, but it is becoming very obvious that it is a crucial part of the whole issue.

On Amendments 47 and 48 in particular, we know that we have a huge problem with the bodies or organisations that are appointed, particularly by Westminster, being representative of all parts of the country in terms of region, background, knowledge and skills. As has just been highlighted by the appointment of the new chair of the BBC, it would seem that, under this Government, there are very few positions in UK society that a long career in the financial sector does not qualify you for. Crucially, we need our government institutions and bodies to be far more representative of our society as a whole. That means including different voices, genders, backgrounds, regions, educational backgrounds, et cetera. These three amendments taken as a package are a modest but important attempt to ensure that, when we formulate and make decisions about trade policy, a range of voices is heard.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Baroness, Lady Bennett. I shall speak to Amendments 28, 29 and 30, which are intended as probing amendments. I refer in passing to the report on the Trade Bill from the Select Committee on the Constitution, published in September of last year. The committee says at paragraph 11:

“We remain of the view that the Bill’s skeletal approach to empowering the Trade Remedies Authority is inappropriate.”


It goes on to say at paragraph 12:

“We recognise that there continue to be significant uncertainties regarding the UK’s trading relationships at the end of the Brexit transition period”,


which of course has now passed, and it concludes:

“However, it is not clear why, more than two years after the previous version of the Bill was introduced, the functions and powers of the Trade Remedies Authority cannot be set out in more detail in this Bill.”


Therefore, I gently nudge my noble friend the Minister to say, when he responds to Amendments 28, 29 and 30, what the intention behind the original Clause 6 was.

With Amendments 28 and 29, I seek in particular to focus on understanding better what limits might be appropriate to a request to the Trade Remedies Authority to provide advice on matters of international trade, and, with Amendment 30, to clarify the purpose of the initial consultation before proceeding to a request. At this stage, I should say that I am most grateful to the Law Society of Scotland for its assistance in briefing me and preparing these amendments.

With regard to Amendment 30, it is not immediately clear from the legislation why the Secretary of State would consult the Trade Remedies Authority under Clause 6(3) and how this is different from issuing the original request under subsection (1). I might be missing something but, if you are issuing a request, that seems a little odd. I am grateful to the Law Society of Scotland for raising this with me and, in turn, for the House this afternoon. Surely, if you make a request to the Trade Remedies Authority, you do not need to consult the authority beforehand on the nature of that request.

Can my noble friend clarify whether there is any distinction between the two actions, making it clear that the duty to consult in Clause 6(3) relates to framing or scoping a request to the Trade Remedies Authority, just so we can understand why it is appropriate to shape that request when, in fact, the Trade Remedies Authority is meant to be independent and impartial? By going through this process of consultation, I am slightly concerned that that impartiality and independence may be impugned or compromised.

Amendments 28 and 29 point to the fact that the Trade Remedies Authority has already existed, and exists in abstract, having been incorporated by reference in the Taxation (Cross-border Trade) Act 2018, although we are formally constituting it in the Trade Bill before us today. If it is the case that the Trade Remedies Authority is responsible for carrying out investigations and advising on remedies as set up under the cross-border trade Act, while it is an essential aspect of international trade, it is only one part of that. The proposed amendment therefore would ensure that requests for advice are limited to matters on which the Trade Remedies Authority is competent to advise, having regard to its remit and functions.

The purpose of this group of three amendments is simply to explore a better understanding from my noble friend and the Government through the department as to what the remit of the TRA should be and to ensure that the independence and impartiality of that body will not be infringed through the present drafting of Clause 6(3).

[Lord Lansley (Con) [V]]

My Lords, I am grateful for the opportunity to contribute to this debate. The amendments in this group all relate to the composition, functions and approach taken by the Trade Remedies Authority. I am very glad to follow my noble friend Lady McIntosh of Pickering. She rightly referred to the powers and approach set out in the Taxation (Cross-border Trade) Act 2018. I have to say equally gently that that is the answer to the points made by the Constitution Committee of this House—that they do not need to be set out in this legislation, because, way back when we first started considering the previous Trade Bill, as the noble Lord, Lord Purvis of Tweed, and I fondly remember, it was introduced at almost exactly the same time as the Taxation (Cross-border Trade) Bill. They were intended to proceed in parallel and are now entirely separate.

To some extent, that also gives a further reason why we should briefly consider at this stage the Trade Remedies Authority’s understanding that it has, in the form of the trade remedies investigation directorate of the Department for International Trade, been up and running, working on the transition review from the European Union and making recommendations relating to the imposition of countervailing, anti-dumping or safeguarding duties inherited from the European Commission. To that extent, we seek to influence not something new but something that has an ongoing role.

In this debate, I want to raise several issues. I hope that my noble friend on the Front Bench will not regard it as necessary to elaborate on all these issues now. If he wishes to write later, that is absolutely fine, but I do want to make one or two points.