Regional Comprehensive Economic Partnership

Baroness McIntosh of Pickering Excerpts

Tuesday 15th December 2020 Lords Chamber

[Lord Grimstone of Boscobel (Con)]

My Lords, UK accession to the Trans-Pacific Partnership Agreement would secure increased trade and investment opportunities and help us diversify our trading links, and we believe that that would be to the benefit of the United Kingdom.

[Baroness McIntosh of Pickering (Con)]

My noble friend said that we had signed 27 out of 59 free trade agreements; are those 59 agreements all those that we were party to through our EU membership? When might those negotiations on the remaining EPAs be concluded?

[Lord Grimstone of Boscobel (Con)]

My Lords, only a small handful of agreements have not yet been concluded. We are anxious and keen to conclude those but, of course, it takes two to make a trade agreement, and we are in the hands of our partners for the timing of some of those.

Trade Bill

Baroness McIntosh of Pickering Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Tuesday 15th December 2020 Lords Chamber

[Baroness Noakes (Con)]

It is a pleasure to follow the noble Baroness, Lady Bull, but when I read Amendment 13 I thought that she and the noble Lord, Lord Fox, had temporarily forgotten that the Government were elected on a promise to get Brexit done, and that a part of that promise was to take back control of our borders. That means controlling who comes into our country. My right honourable friend the Home Secretary has made fantastic progress in reorienting our approach on this. I know that some noble Lords still cling to a faint hope that, even though we have left the EU, we can carry on much as before, and at the heart of this amendment is that very notion. Whatever noble Lords who support the amendment have said, at the heart of what they are trying to achieve is something akin to the status quo.

In the negotiations, which have been so tortuous, it has not been difficult to miss that mobility has simply not been on the table. Indeed, the provision of services that is the target for the amendment is not a significant part of the negotiations. These are facts. Do noble Lords think that, at this late stage, the UK should go back to the EU and say that negotiations should start all over again and build in a mobility framework? That cannot be more than a pipe dream. It might be realised in due course, but noble Lords must accept the reality that there will be no special arrangements in the near term. We must learn to live the new normal of the UK being outside the EU, with all that this entails. Some service providers, notably financial services, have already adapted their business models; others will have to follow. Noble Lords may not like change and may wish to cling to the past, but we have moved on, and this amendment belongs in another era.

[Baroness McIntosh of Pickering (Con)]

My Lords, with all the respect and affection which I hold for my noble friend Lady Noakes, I must disagree with her most strongly. I hope that, when summing up this debate, the Minister will set out the facts as they are. We passed a statutory instrument looking especially at the free movement of lawyers, and we have undertaken in this country to grant access to lawyers of the European Union and EEA to come and practise on the same terms going forward as are currently available. I realise that, as it is a different department, the Minister may not have the answers at his fingertips, but I would welcome a written response, to get the facts as they are. What update can the Minister give today on the basis that we have allowed incoming professionals?

I am particularly interested in lawyers, but I accept that the noble Baroness, Lady Bull, and the noble Earl, Lord Clancarty, are looking at the overall picture, which is that 51% of all services that we export go to the European Union. That is an inescapable fact. Have we now progressed? Do we now have a situation in which those such as myself, some 30 or 40 years ago, will be able to go over on an ongoing basis—allowing those European and EEA lawyers to practise here, establish themselves and set up a freedom to provide a service as an attorney, lawyer or advocate—on the basis of reciprocity, so that mutual recognition is a two-way process? Is that now the case? Has that been agreed with our European partners? I believe that the generosity of spirit must be reciprocated by them.

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[Lord Sheikh (Con) [V]]

My Lords, I support both amendments in this grouping. Amendments 14 and 21 are important because they are about aligning our climate and environmental targets with our trade agreements. I spoke on these issues in Committee and reinforce the point that these amendments would enable us to be an effective environmental leader. I commend the Government for their increasing attention and leadership on environmental issues, which will not just protect our health but drive our economic growth. This has been shown in the recent spending review and 10-point plan.

These are positive amendments, which will help us to have a proper green industrial revolution. In the late 18th century, the Industrial Revolution began in the United Kingdom and by the 1830s, it had spread to Europe and the United States. I hope that the green industrial revolution can do the same and that the UK can become a true leader in green growth. In Committee, my noble friend the Minister said that this Government have done a huge amount to protect and improve the environment. I completely agree that they have done so. However, this should not mean that we sit on our laurels. Amendments 14 and 21 will help drive our green agenda forward.

Amendment 14 would mean that future trade agreements cannot be signed or approved if they are inconsistent with our climate change obligations. This includes being compliant with the Climate Change Act 2008, and our international obligation to tackle climate change under the UN Framework Convention on Climate Change.

This amendment will help us reach these emissions targets by making sure that we have considered the impact of trade agreements on the climate. For example, subsection (4) states that a Minister would have to make a statement on any agreement

“confirming that the agreement will not give rise to a net increase in greenhouse gas emissions.”

By doing so, we are sending a message that not only do we take emissions seriously but that we are helping to reduce our environmental impact. I welcome subsection (4)(b), which means that if a trade agreement leads to increased net emissions, detailed mitigation measures must be laid before Parliament. So, if we are at risk of emitting too much, we have the chance to put it right, not just for the benefit of our targets but for our own health and well-being. Given that the UK was one of the first major economies to set a net-zero goal, Amendment 14 means that we can properly commit to achieving this target and be a true leader in the run-up to our COP 26 presidency.

At the virtual Climate Ambition Summit 2020 last weekend, the United Nations Secretary-General asked nations to make their promise of a net-zero world a reality. During the summit, the Prime Minister announced the UK’s ambitious targets to cut emissions by at least 68% by 2030, and this is the first time we have put forward our national climate plan separately from the European Union. Furthermore, in its sixth carbon budget report, released last week, the Committee on Climate Change said we need early action and key policy building blocks to reach net zero by 2050. This Trade Bill gives us a chance to do that and to shape our own trade policy. Amendment 14 allows us to be explicit about where we stand on slowing down the rate of climate change and should be supported.

The risk to the environment from poor trade policies is significant, but trade can play an important role in reducing our environmental impact. This is also something the Government said in their 25-year environment plan: environmental sustainability should be at the very heart of global production and trade. Amendment 21 means that future international trade agreements can be ratified and implemented only if their provisions are consistent with the achievement of our environmental and climate change commitments. Again, this is a positive amendment that will help us do what we set out to do and not hinder us. I am glad that subsection (5) outlines a range of commitments and agreements that are relevant to this amendment, including those to protect biodiversity and natural capital and to improve environmental quality, which has a direct impact on our quality of life. This is not limited to this list, so any new or updated commitments will also be relevant.

Amendment 21 requires that reports be made to Parliament. The first is

“a report that explains whether, or to what extent, the provisions of that international trade agreement … are consistent with”

achieving our environmental or climate change commitments and maintaining the protections outlined in subsection (3)(b). A trade agreement is eligible for signature or ratification only once a report has been laid before Parliament. This is very important in protecting our health and environment by making sure that sustainability is not an afterthought. The amendment also requires that a report be made to Parliament within 12 months of ratifying an agreement or making regulations assessing its impact on our commitments. This shows we are committed to being green leaders and are taking our impact on the environment seriously. Furthermore, these reports will incentivise deals and stimulate greater collaboration; for instance, on developing green technologies.

We have great potential in advancing offshore wind, driving the growth of the hydrogen sector and accelerating the shift to zero-emission vehicles. Amendment 21 would enable us to grow the market for low-carbon goods and provide a level playing field for British businesses, because our industries will not be undermined by foreign industries that do not meet our standards. Now we are leaving the European Union, we should of course control our own green agenda, but we need to ensure that our trade agreements support us in doing so. As a businessman, I can see that supporting Amendments 14 and 21 is a sensible business decision and the Aldersgate Group, which represents many major businesses, has also shown its support. The Committee on Climate Change has shown that by 2030, the market for low-carbon goods will be worth more than £1 trillion a year. More and more frequently, consumers in the UK are considering the environmental impact of their purchases. Is it not time to make this a key part of our trade agreements? Together, Amendments 14 and 21 can strengthen our economic competitiveness and truly make us a global leader in the environmental field.

I know that the Government have said they are committed to protecting the environment and mitigating climate change, but I say again that these amendments will allow them to do so. I think that these are fair amendments and I hope that the Minister will consider supporting them.

[Baroness McIntosh of Pickering (Con)]

My Lords, to pursue the analogy made by the noble Baroness, Lady Hayman, earlier, that a nod is as good as a wink, I shall nudge my noble friend a little further as to whether these amendments, the contents of which I support in principle, are actually required.

I understand that sustainable development and protection and preservation of the environment are already fundamental goals of the World Trade Organization; they are enshrined in the Marrakesh agreement that established the World Trade Organization and they complement the World Trade Organization’s objective to reduce trade barriers and eliminate discriminatory treatment in international trade relations. So, while there may be no specific agreement dealing with the environment—and therefore, I understand, with climate change—under WTO rules, members can adopt trade-related measures aimed at protecting the environment, provided a number of conditions to avoid the misuse of such measures for protectionist ends are fulfilled. That is something that I welcome.

If, in the course of negotiating future free trade agreements, rather than rollover free trade agreements, this is something that other parties raise, would the Government look favourably upon it? We see that President Macron of France made a statement today, offering a referendum on climate change so that climate change will actually become part of the French constitution. This is something that seems to be happening among many of our erstwhile partners, so while I can see the thinking behind Amendment 14 on climate change obligations and Amendment 21 on environmental obligations, if this is already covered by the World Trade Organization itself, and protocols thereunder, is this needed, or is it implicit in what the Government’s approach to free trade agreements will be?

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[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure briefly to follow those who have already spoken on this group, and I support Amendment 19 in particular. I am no expert in international trade law, but I rest assured that my noble friend Lord Hendy will speak very shortly.

Briefly, my concerns about ISDS are that the mechanism overrides the supremacy of Parliament—including your Lordships’ House and the other place—overrides the domestic rule of law, discriminates on grounds of nationality in favour of foreign investment corporations and prioritises the profits of investor corporations over people and the planet, as we heard from the noble Baroness, Lady Bennett of Manor Castle. Therefore, I see the mechanism as a fundamental challenge to the rule of law, both domestically and internationally, and not what taking back control is about in the minds of most people in the United Kingdom and further afield, I suggest.

My one question to the noble Baroness, Lady Kramer, who spoke so clearly about her own concerns, is: will the multilateral tribunal that she anticipates really be capable of addressing those fundamental concerns about prioritising corporations over the wider public interest—climate catastrophe, human rights and so on? Will it be capable of designing something that is not the wolf in sheep’s clothing that the noble Baroness, Lady Bennett, described? With those concerns firmly on the table, I support Amendment 19.

[Baroness McIntosh of Pickering (Con)]

My Lords, the authors and mover of these two amendments have done the House a great service. I welcome my noble friend the Minister to his place for the first of these debates that he will be summing up this afternoon. This is a very vexatious area in trade disputes, and it has been very much at the fore of this critical stage of an agreement on free trade with our EU partners— I know that is not the subject of this afternoon’s debate. It is worrying that, at this late stage, we are still arguing—and have been for two years, since the European Union (Withdrawal) Act was passed—about what the dispute resolution mechanism will be.

I will make a general point: it is extremely important at this stage that we know what the dispute resolution mechanisms will be. I place on record my acceptance as less than satisfactory of the arrangements of the World Trade Organization. I think it fair to say that the current position of the United States in this regard is less than clear. As I understand it, in his time, President Obama made moves to remove the US from the general World Trade Organization dispute resolution mechanism scheme—the next stage after disputes have been raised. It is by no means clear, and I have not yet heard—I may have missed it—what the incoming Biden Administration will do in this regard.

My noble friend Lord Caithness mentioned the Huawei decision, and, obviously, we are also caught, as I understand it, in the Boeing situation, with infringement tariffs being whacked on us for the Airbus scenario—and, latterly, we have come forward, seeking to do the same to Boeing, for similar infringements of the World Trade Organization arrangements there. As such, I am very uneasy that, in the current state of the Bill, I do not see any reference to what the dispute resolution mechanism will be in the agreements that fall under this—unless I have missed it—so I would like confirmation of what that resolution mechanism will be.

I welcome that the noble Baroness, Lady Kramer, said that the UK has been at the forefront of setting this in the EU-Canada arrangement—but then my noble friend Lord Lansley said that those arrangements have never been brought into effect in relation to the EU. This is a very grey area, and it is vital that, before the Bill leaves Parliament, we know what the dispute resolution mechanism in this regard will be. Mindful of the lengthy debate that we had in Committee, I seek further clarification at this stage, using these two amendments as an opportunity to probe in this regard.

[Lord Hendy (Lab) [V]]

My Lords, I am grateful to the noble Baroness, Lady Kramer, and my noble friend Lord Stevenson, for moving and speaking to Amendments 15 and 19, respectively. They significantly improve, but do not eliminate, ISDS. On that basis, I support them, since my assessment is that the elimination of ISDS is not currently politically feasible.

We now know a lot about ISDS, which is relatively common in international trade agreements. We know how objectionable it is and the chilling effect it can have. It is objectionable because it overrides the supremacy of Parliament, defeats the rule of domestic law—a concept familiar to all of us after recent debates—and discriminates on grounds of nationality. Far from taking back control and asserting British sovereignty, the current catchwords of government, ISDS surrenders both.

A couple of years ago, a petition against the inclusion of ISDS in the then-proposed EU-US trade deal, TTIP, attracted 3 million signatures—500,000 of them in the UK. The legitimacy of ISDS in EU agreements is now doubted by the Court of Justice of the European Union as well as by EU citizens. In Slovak Republic v Achmea, the court held that ISDS in the Netherlands-Slovakia trade agreement

“has an adverse effect on the autonomy of EU law”

and is therefore incompatible with it. By like reasoning, ISDS in UK trade deals will adversely impact the autonomy of UK law.

ISDS is a mechanism whereby a corporation of one state party to the international trade agreement can bring a claim for compensation against the other state. It sounds fair, but it is not fair. ISDS claims bypass the courts of both state parties, and bypass the laws of both states. ISDS is a special privilege accorded only to foreign corporations, for use, in the case of the UK, against a democratic sovereign Government. ISDS is a right to claim compensation against the host state in which the corporation has made its investment—a right denied to the corporations and citizens of that state. That point is important and goes beyond the insult to sovereignty.

ISDS offends against the rule of law because a right and remedy against a host state is given to one class of putative claimant—foreign investment corporations—and denied to all the citizens, companies, co-operatives, trade unions and other organisations in the host state. ISDS offends against the rule of law, whereby that right and remedy is exempt from the courts and the legal system of the host country. It offends the principle of non-discrimination because that right and remedy is only available to non-nationals of the host state.

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[Baroness Sheehan (LD) [V]]

My Lords, I will say a few short words about Amendment 16, which may enlighten the noble Baroness, Lady Noakes, as to why I think it is very important. I am grateful to my noble friend Lord Purvis of Tweed for putting it down.

The Pergau dam scandal of the early 1990s offers a timely reminder of how badly things can go wrong when tied aid becomes, as it did then, a regular feature of the aid budget—so much so that, in 1997, the UK’s aid budget was removed from the Foreign Secretary’s remit and placed with a newly formed Department for International Development. Maybe old habits die hard as this was followed in fairly short order by the International Development Act 2002, which tightly defined development assistance as two things: furthering sustainable development and improving the welfare of people in developing countries. It was designed to be pro-poor and, in effect, to ensure no more tied aid.

However, that and other Acts of Parliament on international development now have a sword of Damocles hanging over them. My noble friend Lord Purvis has outlined in quite a lot of detail the conflicting statements that we have heard with respect to the 0.7% target, which, as we now know, is to be reduced to 0.5%. He has therefore quite sensibly covered every eventuality in his Amendment 16 by invoking the OECD Development Assistance Committee’s recommendation on untying official development assistance. I hope the Minister will add his assurances to those of the Foreign Secretary and tell us that the bad old days of tied aid are indeed over. Trust is a hard-won commodity, and it is running in very short supply with this Government. I ask the Minister, whose word I have no reason to mistrust, to ensure that assurances given at the Dispatch Box are followed through.

Turning to Amendment 25, to which I have added my name, the Government’s early commitments post Brexit to protect current trading relationships with poorer countries, keep prices in check and help build our future trading partners are not turning out to be quite as reliable as we would have hoped, as with many other government commitments post Brexit. It now looks as though the world’s poorest countries will instead face additional challenges post Brexit. Quite a lot are being overcome, but not all.

Amendment 25 is necessary to ensure that developing countries do not lose market access or share, either because time has run out to agree continuity deals or because other arrangements have run into difficulties. Including some of those countries which could face higher tariffs in the list of least developed countries, as per proposed new subsection (2), would offer some protection.

My noble friend Lord Purvis has explained some of the issues surrounding our difficulties in agreeing a trading arrangement with Ghana. I hope the Minister will agree that insisting on a historic stepping-stone deal was unrealistic. As my noble friend said, Ghana asked that the existing ECOWAS EPA with the EU be used as a basis; I am delighted to learn from my noble friend that it will form the basis of ongoing negotiations. To have insisted that the stepping-stone agreement should form the basis of agreements going forward with Ghana was to disregard the fact that it is now a member of ECOWAS—the Economic Community of West African States—and as such has notified that agreement under the WTO. That would break international agreements, which I hope the Minister would agree is not a good look.

Ghana could have signed our agreement for the enhanced framework as a way out of the scheme but, as my noble friend Lord Purvis explained, it was presented with some difficulties in doing so because bananas are not included in the enhanced framework scheme. I hope this issue can be resolved so that other countries are not caught in the same trap. Had Ghana signed up to the enhanced framework scheme, about 30% of the bananas we eat in the UK, which come from Ghana, could not have got here. That would be a real shame, because a large proportion of them are Fairtrade; the Fairtrade Foundation has had great success in getting better working conditions and fairer deals for poorer farmers and the workers and communities that rely on them. I do not need to remind the Minister that the Fairtrade movement enjoys wide support in the UK. Proposed new subsection (3) is designed to overcome this difficulty for Ghana and other developing countries caught in a similar conundrum.

Time is tight, so I will move straight to the end. The regional economic unions in Africa—east, south, north and west—are now all pretty well established and the African Continental Free Trade Area, which represents a market of 1.2 billion people with a combined GDP of $1.3 trillion, opens on 1 January 2021. This October, just a few weeks ago, talks took place between the EU and the African Union on a modern relationship between the two trading blocs. What plans do we have for a modern trading arrangement with the African Union?

[Baroness McIntosh of Pickering (Con)]

My Lords, in connection to Amendments 16 and 25, I really would prefer to go down the continuity agreement route than to adopt these two. It is my understanding that the UK has reached—I think the noble Lord, Lord Purvis, said this in moving Amendment 16—a rollover agreement with Kenya. Indeed, it was signed this month, less than a week ago, which I welcome. I know that we had a long debate in Committee about the asymmetry of many of the free trade agreements, but I do not know if that applies in this case. It would be my strong preference that we press the Government to continue their good work in reaching agreements, with the rollover economic partnership free trade agreements.

My question to the Minister is therefore very simple: could he say where we are in reaching agreement with Ghana—which reached an EPA with the EU relatively recently, in 2016—and Cameroon, which reached an EPA with the EU in 2014? Rather than at this stage lumbering the Government with even more add-ons, as set out in Amendments 16 and 25, it would be my preference to carry on the work that they have achieved with the Kenya rollover agreement. I urge my noble friend the Minister to continue to complete the agreements with Ghana and Cameroon.

My noble friend said earlier—it was not his exact phrase—that it takes two to tango. It takes two to complete these agreements, and if any specific obstacles have been raised with any specific products relating to the rollover agreements we currently enjoy, through our membership of the EU, with Ghana and Cameroon, it would be very helpful to know what they are this afternoon.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to speak in favour of Amendment 16 in the name of the noble Lord, Lord Purvis of Tweed, and Amendment 25, in the name of the noble Lord, Lord Purvis, and the noble Baroness, Lady Sheehan.

I want to reflect on the context in which we are having this debate: a double blow has come forward in terms of our international aid budget. Someone came to me on Twitter and said, “I’m really confused, because it seems like our GDP is going down, so our aid is going down anyway, so why are we also cutting the percentage of aid?” I had to say, “No, you’re absolutely right, this is a double blow.” We have often given very effective help to some of the poorest people in the world, so it is important that we do whatever we can to make sure that aid is directed in the right kind of way.

The second, contextual, point I want to reflect on is why these countries are in the least developed and lower middle-income categorisations. If you go down the road to the Foreign Office, up to Liverpool or across to Bristol, you will see the colonial legacy of lots of the wealth of these countries, which was sucked out in the past. That legacy continues to have extremely deleterious effects. There is also the impact of multi- national companies—very often corrupt—today, which hold down the essential development of many least developed and lower middle-income countries. I note what the noble Baroness, Lady Sheehan, said too about the history of how DfID came to be split from the Foreign Office, and the concerns that have to be expressed about that reunion.

In those contexts, it is really important to do whatever we can in your Lordships’ House to defend, to hold the line and to keep whatever we have now. We will have the fight about the aid budget percentage when it comes along, but let us do what we can now in the Trade Bill.

Green Economic Recovery

Baroness McIntosh of Pickering Excerpts

Monday 14th December 2020 Lords Chamber

[Lord Callanan (Con)]

I thank the noble Lord for trying to tempt me down the road of reforming the tax system, but I will happily leave that for the Chancellor to announce.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend join me in congratulating farmers on both responding to the Covid epidemic and delivering a green environmental economic recovery? What could be greener than buying locally produced meat, dairy products and cheese this Christmas? Will my noble friend join me in doing so?

[Lord Callanan (Con)]

I thank the noble Baroness for her question. She is quite right, of course: the farming community has had a very difficult year, as have many other industries. Where possible, we should all buy local freshly produced produce.

Carbon-neutral Homes

Baroness McIntosh of Pickering Excerpts

Thursday 10th December 2020 Lords Chamber

[Lord Callanan (Con)]

The noble Lord makes some interesting points. I think we are all aware of the limitations of working from home, but companies should be as open and transparent as possible in their reports about the energy and emissions that they are responsible for. This includes employees who work from home.

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

My Lords, will my noble friend join me in congratulating National Energy Action on all it does on home insulation and warm homes? I have the honour to be the honorary president of National Energy Action. Is it fair that new homes are still being built using gas boilers, which will eventually be banned, given that there will be an enormous cost for the occupiers of those homes in retrofitting new boilers at some future date?

[Lord Callanan (Con)]

We are consulting on these matters at the moment. The noble Baroness makes a very good point and I happily pay tribute to the work that National Energy Action does.

Trade Bill

Baroness McIntosh of Pickering Excerpts

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

Moved by

[Baroness McIntosh of Pickering]

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

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

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

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

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

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

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[Viscount Younger of Leckie (Con)]

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

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

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

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

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

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

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

Amendment withdrawn.

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

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

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

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

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

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

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

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

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

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

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

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Moved by

[Baroness McIntosh of Pickering]

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

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

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

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

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

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

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

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

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


which we have called “CRAG” throughout these proceedings—

“that contains provisions relating to the importation of goods”

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

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

its own standards; secondly,

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

and, thirdly,

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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

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


and then goes on to say,

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

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

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

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

“staff, accommodation, equipment or other facilities”,

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

[Viscount Younger of Leckie (Con)]

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

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

I wish to press my amendment.

Amendment 7 disagreed.

--- Later in debate ---

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

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

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

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

[Baroness Noakes (Con)]

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Clement-Jones (LD)]

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

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

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

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

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

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

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

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


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

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

or

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

The question has been raised of whether this will override data protections and what its impact will be on access to source codes and algorithms. There is also the question of the combined effect of Article 8.84, on the free flow of data, which provides that:

“A Party shall not prohibit or restrict the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.”


Article 8.80, on personal information protection, says:

“Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes.”


It is all very well making reassuring noises, but what public legal analysis of the language in the relevant articles—and how advocacy will be permitted despite this—are the Government going to provide? Why, for instance, are these articles included, which the EU for its part will not sign up to? Unless the Government do this, there will be zero trust in future trade deals, especially regarding the US.

To date, there have been shortcomings in the sharing of data between various parts of the health service, care sector and Civil Service. The development of the Covid-19 app and the way the Government have procured contracts with the private sector for data management have not improved public trust in their approach to data use. There is also the danger that the UK will fall behind Europe and the rest of the world unless it takes back control of its data and begins to invest in its own cloud capabilities. Specifically, we need to ensure genuine sovereignty of NHS data and that it is monetised in a safe way, focused on benefiting the NHS and our citizens.

With a new national data strategy in the offing, the Government can maximise the opportunities afforded by the collection of data and position the UK as a leader in data capability and protection. As Future Care Capital says in its briefing on the Bill:

“Any proceeds from data collaborations that the Government agrees to, integral to any ‘replacement’ or ‘new’ trade deals, should be ring-fenced for reinvestment in the health and care system, pursuant with FCC’s long-standing call to establish a Sovereign Health Fund.”


This is an extremely attractive concept. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator. That is why, as part of the new trade legislation being put in place, clear safeguards are needed to ensure that in trade deals, our publicly held data is safe from exploitation, except as determined by our own Government’s democratically taken decisions.

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

My Lords, I refer to my entry in the register. This is a particularly important group of amendments, on health and the protection of data. I thank the noble Baronesses, Lady Thornton and Lady Sheehan, and the noble Lord, Lord Freyberg, for introducing them.

I will limit my remarks to the specific issue of data, which will be relevant to the recently reached super-agreement with Japan. It was discussed as recently as last week, when my noble friend Lord Grimstone spoke about the importance—I agree with him—of a greater exchange of data flows, particularly from that agreement. However, as the noble Lord, Lord Freyberg, said, it is extremely important, as set out in Amendment 11, to protect this data. I will give one example. The Government have been heavily dependent on vaccine trials for the three vaccines that are coming out. Would people readily submit to such trials and completing confidential surveys if there was any doubt that the data they submit would be treated confidentially?

If my noble friend Lord Younger of Leckie is not minded to support this amendment, will the Government table their own amendment to ensure the greater protection of data processing services?

Export Control (Amendment) (EU Exit) Regulations 2020

Baroness McIntosh of Pickering Excerpts

Wednesday 2nd December 2020 Grand Committee

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to my noble friend for taking us through this statutory instrument this afternoon, and I am delighted to see him back in his place.

Rather than comment on what is set out in the regulations, I will first comment on what is not set out. In preparing for today, I am grateful to the House of Lords and House of Commons Joint Committee on Statutory Instruments and the conclusions in its 32nd report, on which I will rely heavily.

In particular, I will quote two paragraphs and how the conclusions were reached. In paragraph 5.4, the committee concludes:

“The Committee accordingly reports regulation 7(9) for defective drafting, acknowledged by the Department.”


This could have been put right. The committee states that

“it would have been open to the Department to withdraw the instrument and re-lay it before Parliament with the defect in article 42N(2) corrected”.

Apparently, the department chose not to do this because it intends to include the correction in amending legislation to be made early in 2021. It considers the likelihood of the defect in the legislation having any practical impact before the correcting legislation in 2021 to be very low.

The Joint Committee in its 32nd report states:

“The Committee is not convinced by this explanation. In the view of the Committee, the Government should not make legislation which it knows will have an effect which is significantly different from what is intended, unless doing so cannot reasonably be avoided. Nothing is said in the Department’s memorandum to indicate that laying a corrected draft would not have been practicable.”


So, with regret, I argue that the statutory instrument before us today will not lead to a fully functioning customs and excise move. Why did the Secretary of State for Trade choose not to submit a corrected statutory instrument for today’s purposes? Why was the procedure open to the department in this regard not used?

I understand that the department entirely acknowledges the error. Paragraph 5.3 of the 32nd report of the Joint Committee states:

“It appeared to the Committee that the exception in article 42N(2) may have been drawn too narrowly in requiring both the conditions in sub-paragraphs (a) and (b) to be met. It is inconsistent with the position under article 12 of the 2008 Order as it currently has effect before IP completion day. The current position is that a transfer to a destination within the EU customs territory is allowed if either the final destination for the transfer is within the EU customs territory, or the software or technology will be subject to processing or working within the EU customs territory.”


So we seem to be in the very unhappy situation where there will be a hiatus between what is currently on the statute book and what will be on the statute book early in 2021, which is highly regrettable. Will my noble friend explain why we are in this unhappy position and why the Secretary of State and the department chose to go down this particular path?

Equally, paragraph 5.7 of the 32nd report states:

“The Committee is not convinced by the Department’s explanation. It seems to the Committee that Government should as a matter of general principle avoid making legislation which it knows to be defective. In this case, the Trade in Torture Regulations were approved in draft by both Houses more than 18 months ago. Since that time there has been a significant change in circumstances in that the EU withdrawal agreement has been entered into, including the Protocol on Ireland/Northern Ireland. The amendments made by Part 5 include amendments in regulation 15 which are needed to take account of the effect of the Protocol. Accordingly, the Committee reports Part 5 of the Regulations as making an unusual or unexpected use of the enabling powers.”


In a previous paragraph of the report, paragraph 5.5, the Committee states why that is the case:

“Part 5 of the draft Regulations amends the Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2020 (‘Trade in Torture Regulations”). The Trade in Torture Regulations have not yet been made and accordingly the Committee asked the Department to explain why Part 5 of these Regulations is being used to amend another statutory instrument which has not yet been made, rather than making that other instrument with the necessary changes incorporated in it.”


So, for the reasons set out in the report, with which I entirely agree, I ask my noble friend to explain why the department has drafted a defective instrument. Why has it opted for an unexpected use of enabling powers which have been overtaken for the reasons I have given, as set out in the 32nd report of the Joint Committee on Statutory Instruments, with which I entirely concur. We seem to find ourselves in an extremely unfortunate position. I repeat my question: why have the department and the Secretary of State put us in the position that we find ourselves in today? With those few remarks, I ask him to explain the circumstances in which we find ourselves today.

Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020

Baroness McIntosh of Pickering Excerpts

Friday 27th November 2020 Lords Chamber

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

I am delighted to follow the noble Baroness, and I would like to build on her arguments. I thank my noble friend for introducing the instrument today and for the fact sheet sent with his letter. He has argued that this instrument is necessary for greater clarity, but I regret that the main thrust of this debate is that that is certainly not the case.

The noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Dodds, have highlighted the disagreement that exists between the UK Government and the EU. What is the legal position on this? How will that disagreement be resolved? Does it have to be resolved by 1 January?

The noble Lord, Lord Foulkes, referred to the fact that there has been no formal consultation. Why has a decision been taken on principle not to have one? I am grateful, as I am sure are others, for the note from the Library and for the 32nd report from the Secondary Legislation Scrutiny Committee, which looked at these issues and highlighted them in their report.

The noble Baroness, Lady Ritchie of Downpatrick, noted the numbers of those affected, which are staggering. The estimated cost to businesses over a 10-year period is in the region of £25.7 million for conformity marking, £3.7 million for conformity assessment and £6.6 million for familiarisation, leading to a total over the period of £36 million—a not inconsiderable sum. Can my noble friend explain why the impact assessment was not made available at the time of the scrutiny by the Secondary Legislation Scrutiny Committee? Is it available for us to look at now? I am sure it would be of great interest to the businesses affected.

I further reinforce the point made by the noble Baroness, Lady Ritchie of Downpatrick, about what the impact will be on agrifoods as of 1 January, both under this particular instrument and more broadly. What discussion has there been between the Minister’s department not just with the agrifood industry but with the road haulage owners and operators, who I know are deeply concerned? I understand that my noble friend Lord Agnew has met the English equivalents, but has anyone actually had the courtesy to meet the Northern Ireland road hauliers?

Comprehensive Economic Partnership (EUC Report)

Baroness McIntosh of Pickering Excerpts

Thursday 26th November 2020 Grand Committee

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble and learned Lord, Lord Goldsmith, and his committee for securing this debate and for their excellent report, which has been most helpful in preparing today.

I also welcome most warmly the noble Lord, Lord Darroch of Kew, and congratulate him on his maiden speech. I take this opportunity to thank him for all the help he provided me in my capacity as MEP when he was at the UK representation and its help in briefing MEPs for debates in the European Parliament.

The noble Lord, Lord Liddle, and others have spoken of the asymmetry and imbalance in the rollover agreements that have been secured to date. I think it was the noble Lord, Lord Purvis, who secured our debate in the previous Parliament on our agreement with the Faroe Islands, to which we export £90 million—mostly fish—but from which we import £200 million, mostly fish. The noble Lord, Lord Liddle, set out the asymmetry in the agreement before us today.

I welcome the Minister and am delighted to see him in his place today. I take this opportunity to pick up on some his remarks in the form of questions that I hope he will be able to answer. What stood out in the agreement, but which I do not think anyone has mentioned today, are the state aid rules and the rules on subsidies, which are much stricter and reflect the state aid rules we currently have as a member of the single market since the new arrangements came into place. In much the same way as my friend, the noble Baroness, Lady Henig, asked about the deal currently being negotiated, surely my noble friend and his department would wish to move by maintaining the current state aid rules that we have with the European Union if that were to mean that we could close in on a deal on our future relationship with a proper free trade agreement there.

The noble Lord, Lord Trees, asked who will uphold our animal health and environmental protection standards in any future trade deal. I hope my noble friend Lord Grimstone will reply that it will indeed be the Trade and Agriculture Commission. That begs the question that several noble Lords have posed in the debate today about the scrutiny that will be permitted of future trade deals. I hope my noble friend will have a chance to consider the amendment that several of us—I like to think the four wise ladies—have tabled to the Trade Bill to allow sufficient time to scrutinise not just free trade agreements but the recommendations of future Trade and Agriculture Commission reports to enable us to view the criteria it has set and its recommendations on to what extent such agreements reflect and follow those criteria. I congratulate my noble friend and his department on moving to ensure that the commission will have a degree of permanence, which I hope will be further extended before the initial three-year term expires.

I also pay tribute to my right honourable friend Elizabeth Truss, the Secretary of State for Trade. She appointed the first ever agriculture attaché to Beijing, which at the time and since has brought enormous benefits, particularly in the agri-foods sector, which I care about passionately, and more especially in pork. It has enabled all the pork parts that we do not savour in this country to be exported to China and other countries. I hope that, as my noble friend Lord Lansley said, that will be a forerunner and that we will see many more such examples. Learning from a small country like Denmark, it never ceases to amaze me that its exports of agricultural foods often outstrip our own.

I welcome this rollover agreement, although I regret that it is perhaps imbalanced in favour of Japan. However, I hope that it will be the forerunner to others. I hope also that before the 31 December deadline is reached, this House will have had a chance to approve a trade deal on our future relations with the European Union.

United Kingdom Internal Market Bill

Baroness McIntosh of Pickering Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th November 2020 Lords Chamber

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

The next speaker on the list, the noble Baroness, Lady Neville-Rolfe, has withdrawn. I call the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord. Like him, I was surprised at the level of the penalties for these infringements. I join noble Lords who congratulated and thanked my noble friend the Minister for listening to concerns expressed at an earlier stage of proceedings and bringing forward Amendment 62. I will just ask: what form will the consultation by the CMA with the devolved Administrations take? How long will be allocated to it generally, along with the other bodies that are to be consulted?

Has the CMA taken a policy decision not to have on its board currently, as I read it, any representatives of the devolved Administrations? I notice that Jo Armstrong, for whom I have the highest regard, is represented. She is currently a commissioner with the Water Industry Commission for Scotland with whom I have had the pleasure to work for four or five years. But I do not see that any specific representatives of the devolved Administrations are there. Given the thrust and context of this Bill, it will be interesting to know if there is any policy principle as to why there are not. I know that my noble friend will say that that is a matter for the CMA, but it works under the guidance of the Secretary of State and the department, so I ask him to comment in that regard.

I echo the concerns raised by other noble Lords and I thank the noble Baroness, Lady Bowles, for her Amendments 62A, 63A and 63B. I ask my noble friend to consider to what extent the ask under Article 39 goes much wider than is currently envisaged in, I think, the Enterprise Act that forms the basis for these provisions. Against the background that these are quite substantive penalties, will the Minister be mindful of the debate that we have had, noting, in particular, the comments made by the noble Baroness, Lady Bowles, my noble friend Lady Altmann and the noble Lords, Lord Vaux and Lord Liddle? Will my noble friend have regard and perhaps pause at this stage and come forward with a further government amendment at Third Reading?

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[Baroness McIntosh of Pickering (Con)]

My Lords, I preface my remarks by saying that what will replace the European structural funds is a matter of interest not only to the devolved Administrations but to the regions, such as Yorkshire, as well. I was fairly agnostic about this group of amendments before the debate commenced but now I think that the noble and learned Lord, Lord Thomas of Cwmgiedd, and the other noble Lords who tabled these amendments have done the House a great service.

In the briefing on the spending review, the emphasis now appears to be much more on UK-wide spending. It states:

“The Spending Review takes advantages of our departure from the EU to benefit the union. We will ramp up funding, so that total domestic UK-wide funding will at least match EU receipts … for the introduction of the UK Shared Prosperity Fund, we will provide additional UK funding to support our communities to pilot programmes and new approaches. We will also deliver £1.1 billion to support farmers in Scotland, Wales and Northern Ireland, £20 million to support fisheries—and we will build one freeport in each part of the UK.”


It goes on to say that the spending review is UK-wide and refers to the UK shared prosperity fund and the shared rural network. Although I welcome the funding that has been announced, it is incumbent on us today to find out whether, in the words of the noble Baroness, Lady Finlay, the Government are now working around the devolved Administrations rather than with them.

I am particularly concerned with one aspect relating to economic development, which I hope is relevant to this group of amendments. England and Defra have clearly stated that they are committed to phasing out direct payments to farmers from 2021, but the new system involving an environmental land management scheme will not be in place until 2024. As I understand it, however, the Scottish Minister has announced that direct payments to farmers will be retained for the foreseeable future. That begs the question of what the impact on economic development will be for English farmers as opposed to Scottish farmers and whether that will potentially distort the market between England and Scotland. That would seem to flout the principles of mutual recognition and non-discrimination, which we have heard so much about during the Bill’s passage.

I welcome this debate. I am particularly supportive of Amendments 64 and 67, both of which have been spoken to so eloquently by their authors. I urge my noble friend the Minister to say how the payments under the shared prosperity fund will be distributed. Obviously, I would add a rider that Yorkshire would like to have its fair share of that fund, but it is incumbent on my noble friend to state whether we are departing from what we have become accustomed to under devolution or whether this is simply a red herring.

[Baroness Humphreys (LD) [V]]

My Lords, I support Amendment 64, which seeks to remove Clause 42 from the Bill. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling such an important amendment and for his excellent explanation and analysis of its intent.

Clause 42 empowers the UK Government to provide financial assistance for economic development in any area of the UK. At the outset, I want to make it clear that I have absolutely no objection to the UK Government making investments for economic development in Wales—nor, I believe, would anyone else in Wales. It is the intrusion into devolved powers that is so offensive. Those of us who live in the Objective 1 area of West Wales and the Valleys understand that our economy is weaker than those in other areas of the UK and that we live in one of the poorer regions of Europe. We have appreciated the EU’s investment in the past 20 years; for example, the investment in the A55, which provides such a vital transport link across north Wales, and the projects that we have seen come to fruition under the rural development fund.

In my contributions on Second Reading and in Committee, I said that investment in our region is desperately needed—it was before we received Objective 1 funding and it will be when it ends—but this clause gives the Government extraordinary powers to act in areas of devolved competence and in areas where the EU structural funds have never operated. It is extremely disappointing that, throughout this clause, there is no mention of consultation, joint planning of schemes, joint programmes of work or joint management of projects—all examples of the collaborative approach to investment programmes initiated by the EU that we have become used to. There appears to be no clear setting of objectives, other than, I suspect, that the Government’s prime objective is to see projects in the UK—in the Prime Minister’s words—emblazoned with the union flag. I have no problem with that either. In West Wales and the Valleys we are used to seeing EU blue flags or plaques on projects. They are an indication that the needs of our area have been recognised, and so it would be with the union flag.

There is, however, still no clarity on how needs will be determined and recognised in the UK under the shared prosperity fund, whether projects will be imposed or applications sought and, crucially for us in Wales, what impact there would be on our financial settlement. We still do not know whether a UK Government investment in a road-building programme, for example, would lead to a reduction in the Barnett allocation, or whether projects imposed on us would be financed by loans that require repayment by the Welsh Government. All this curtails the Senedd’s ability to deliver on its objectives and will have an impact on its ability to deliver on its manifesto commitments.

Of all the attacks on the devolution settlements in this Bill, this is probably the most blatant—so much so that the powers and responsibilities of our Parliaments do not even merit a mention. It is another example of the introduction of a new constitutional settlement by stealth, as I referred to in my speech on Monday. It is another item to add to the list of examples fuelling the interest in independence, which, under this UK Government, is reaching a level never seen before in Wales. People are witnessing the performance of an almost colonial Government emanating from Whitehall and comparing it with the more progressive Government and Senedd we see in Wales—a progressive Senedd that voted last week to allow councils to change the electoral system for local elections by introducing the STV system and open up the franchise for local elections to 16 and 17 year-olds in addition to their existing rights to vote in Senedd elections; importantly, it supported voter participation by paving the way for automatic voter registration.

I must admit, I am surprised that, after listening to concerns expressed by the noble and learned Lord in Committee and hearing the support for his stance from other noble Lords, the Government have not come back on Report with an amendment of their own that recognises and ameliorates the impact of this clause on the devolved Parliaments.

In a Bill about the regulation of the UK internal market, this clause and its assault on the devolution settlements has no place, and I support Amendment 64 to remove it. I hope that the noble and learned Lord will be minded to call a Division on the amendment. If he does, he will have the support of these Liberal Democrat Benches.

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[Lord Wigley (PC) [V]]

My Lords, I am glad to have the opportunity to speak in this group of amendments and to follow the noble Baroness, Lady Bennett, who has made a massive contribution to our work on the Bill. As I have stated in previous debates, the House would be well advised to listen to the words of the noble and learned Lord, Lord Mackay of Clashfern. Time after time, he has alerted the House to the need to find an acceptable compromise on these matters. In particular, Amendment 75, in the name of the noble Lord, Lord Fox, to which I have added my name, serves that purpose. The amendment addresses the need to have a coherent framework for the work of the Joint Ministerial Committee and to provide a mechanism for when there may be disagreements. The noble Lord, Lord Purvis, stated that this amendment provides for any opportunity to achieve a consensus where that is possible—an excellent aspiration.

Likewise, the noble Lord, Lord Cormack, stressed tonight, as he has before, the need to find ways of co-operating. As I am sure he would be glad to hear, I add that my main objective in seeking greater powers for Wales is not primarily to demolish the union, but to change it into something that better serves the interests of our respective countries. That means giving greater power and being prepared to be flexible, something that has not been entirely apparent in the Government’s attitude to the Bill.

There clearly has to be some mechanism for dealing with situations where there is a disagreement among our four nations. It should have been the duty of the Government to find an acceptable solution, but they have failed to do so. I therefore believe that we should give MPs in the other place an opportunity to address this matter again by writing an amendment along these lines into the Bill.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Wigley. I endorse everything that my noble friend Lord Cormack said about our noble and learned friend Lord Mackay of Clashfern.

I have not spoken in general terms about the union. Suffice it to say that, as a Scot by birth with a Scottish father, who made her maiden speech next door on the Scotland Bill, I care passionately about this area. I lend my support to the terms of the amendment as set out by my noble and learned friend. I urge my noble friend Lord True to show the same spirit as our noble friend Lord Callanan when he accepted many of the areas, identified by the Law Society of Scotland in earlier parts of the Bill, on which we felt that the Government should consult. I am just disappointed that those fell to the terms of consent being sought. I am not sure that is appropriate in all those circumstances.

We must not lose sight of the fact that the Scottish Parliament withheld its consent to this legislation. It behoves the Government to move as far as possible and to consult. I am mindful of the old BT advert: it is good to talk. By talking and consulting, many misunderstandings are removed. It also behoves the Government to ensure that the common frameworks are allowed to reach their natural conclusion in the areas that are already well advanced. I wish my noble and learned friend Lord Mackay and his amendment the best, and hope that our noble friend Lord True might be magnanimous and come forward with something similar at the next stage.

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I am speaking in support of Amendment 75, and I recognise the constructive intentions behind Amendments 73 and 76. I want to be clear that I have not been persuaded in any way of the case for this Bill. It is wrong in almost every respect, and that is why it has been substantially amended: I think the House takes a similar view. Of course, I have supported amendments that mitigate its worst effects, but I view with growing despair the failure of the Government to grasp just how negative and dangerous is the thrust of this Bill.

The Bill is clearly driven by an ideological and deluded belief that the UK Government can negotiate trade deals more far-reaching and radical than have been achieved within the EU and that, in doing so, they do not wish to allow the existing devolution arrangements to account for any friction in the process. Of course, however, Part 5 of the Bill destroys the negotiating capacity of the Government, who have had no experience of negotiating trade deals in more than 40 years, by advertising in advance their preparedness to set aside unilaterally any agreements that they might sign. The trouble is that the Government seem completely oblivious to the friction that will result from unilaterally overriding decision-making under the devolution settlements.

It has been argued repeatedly that decisions involving the devolved Administrations should be based on seeking agreement. The principles behind the common frameworks have been met with wide support and approval, and I welcome their inclusion in Amendment 76 in the name of the noble Lord, Lord Stevenson of Balmacara. However, there is still a serious lacuna in the process for reaching agreements across the four nations, and Amendment 75 addresses this. The amendment also seeks to utilise the joint ministerial committee, which, in practice, has not been used enough, but which could be an effective means of producing a dispute-resolution process.

The problem at the moment is that the default position leaves it to UK Ministers—who, of course, are also English Ministers—to have the final say. It is not desirable for any one of the four nations to have a veto on achieving agreement. We are quite clear about that. That is why a premium should be placed on seeking agreement wherever possible. Where it is not possible, however, there needs to be a mechanism that is seen to be fair and collaborative and not one-sided. That might involve qualified majority voting, which I have advocated on a number of occasions. However, this amendment proposes not a solution but a mechanism for finding one. My noble friend Lord Purvis, in previous contributions, alluded to the Australian example where the mechanism was unanimously agreed by all the state premiers, but decisions relied on qualified majority voting.

This Bill will do immense damage to the union and to what is left of Britain’s good standing in the world, which this Government seem determined to destroy. Amending it is only damage limitation, but Amendment 75 would go a long way to help. I support it: it is a mechanism by which we can find solutions to disagreements among our four nations that do not allow for veto but do seek consent and will have the support of all the component parts of the union, apart from those who have no desire to maintain it. Many of us want this union to survive and to be effective: this kind of amendment is a way to try to ensure that.

United Kingdom Internal Market Bill

Baroness McIntosh of Pickering Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Monday 23rd November 2020 Lords Chamber

For now, while welcoming the fact that the Minister has realised that consultation needs to be written on to the face of the Bill, we would just like to add that extra bit that there must be consent within a month or the Government must explain why they are proceeding without the consent of the devolved authorities.

[Baroness McIntosh of Pickering (Con)]

My Lords, I warmly embrace my noble friend—in a metaphorical sense, he will be pleased to know—for adopting in Amendment 14 and others what was in my amendment in Committee, which is why I have appended my name to his Amendment 14. I congratulate him on moving in this regard and listening to the concerns expressed in this House so forcefully by myself and the noble Lord, Lord Foulkes of Cumnock, and as drafted for me and briefed to me by the Law Society of Scotland.

By the same token, I urge the noble Baroness, Lady Hayter, and the co-signers of Amendment 15 and others in this group not to press them. I would be interested to know the provenance of, and thinking behind, Amendment 15 and the others, because I have not picked up on any move, certainly from the Scottish Government and Parliament, to seek consent in this regard. I would be interested to know why the noble Baroness is going to press this when the Government have gone so far to meet the concerns expressed by the Law Society of Scotland and others in Committee. If we do not welcome and congratulate the Government and this Minister when they move as far as they have, it puts down a poor marker for future amendments to this Bill and others on these matters.

My noble friend has said that Amendments 18, 32 and 43 in his view are unnecessary. I think that Amendment 18 is paralleled by and complementary to his own amendment—government Amendment 19. I think that Amendment 32 is also paralleled by his Amendment 36 and his Amendment 35, which I have also signed. Amendment 43, in my name and that of the noble Lord, Lord Foulkes of Cumnock, I think is also complemented and paralleled by his Amendment 45, for which I am extremely grateful; I would like to pay tribute handsomely to my noble friend for moving in this regard.

I do have a hesitation as to why my noble friend has not accepted Amendments 26 and 28 in my name and that of the noble Lord, Lord Foulkes of Cumnock. They are actually seeking to consult in much the same way as an earlier clause that my noble friend has moved and agreed—which is extremely welcome—but, if my understanding is correct, he has not agreed to move in regard to Clause 12 to consult with the devolved Administrations before preparing guidance under Clause 12. I may be mistaken—in which case, I would be grateful if my noble friend would correct me.

I would also like to warmly welcome government Amendment 29. I would like to take this opportunity to commend the spirit of inclusion shown by my noble friend and the Government on this occasion to commit to obliging the Secretary of State to carry out a review of the use of Part 1 amendment powers and, in that regard, his commitment to consult the devolved Administrations. I wish to warmly commend his movement in that regard.

I would perhaps like to nudge my noble friend also to accept Amendments 26 and 28 as being on the same page as his own thinking. I repeat that I do hope that the noble Baroness, Lady Hayter, and the other co-signers of Amendment 15 and others will take this opportunity to withdraw or not move their amendments, given that the Government have moved as far as they have on this consultation, to which they are now committed. So I do not beg to move.

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

My Lords, I also welcome the Government’s amendments in this group and the speech of the Minister. If I may, I will try to answer the concern just expressed by the noble Baroness, Lady McIntosh of Pickering. I think it is fair to say that some of us fear that the Government might be tempted to try to overturn the amendments of the noble Baroness, Lady Andrews, in the other place, and so we would like the House to fully consider all the amendments in this group that have been tabled by the noble Baroness, Lady Hayter, and myself.

I would like to speak in favour of Amendments 15, 20, 27, 34 and 46. All of these amendments are based on the same principle: that, when issuing guidance as to the implementation of market access principles, or when seeking to extend or further limit the exceptions to the application of the market access principles, the Government must obtain the consent of the devolved Governments to doing so.

However, we are sensitive to the nervousness of the Government and wish to be helpful by providing clear reassurance in statute of coupling a consent requirement with a limited-time proviso. This states that, should consent not be forthcoming from one or more devolved Governments within a month, the Government may proceed to make the changes or issue the guidance, subject only to the need to make a statement to Parliament as to why this is necessary.

This is not an onerous requirement, and I know that what we have proposed is less than the unqualified requirement for consent that the devolved Governments in both Wales and Scotland would have preferred. But this amendment is a healthy, open compromise which can comprehensively allay the fears of the Government Front Bench as to the risk of the process somehow grinding to a halt should a Scottish or Welsh Minister try to delay. Indeed, our approach, advocated in the slightly different context of appointments to the office for the internal market by the Welsh Government, has been adopted by the Minister in government Amendments 56 and 57, so it seems difficult to see how the Government could object to this.

I therefore hope that the Minister will think again and accept these helpful amendments, rather than put us in a situation where we need to go to a vote.

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[Lord Callanan (Con)]

I of course thank the noble Lord for his help in answering the question more thoroughly than I did, and I can confirm my understanding that he is correct in what he says.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am overwhelmed that my noble friend the Minister has accepted Amendment 14. Perhaps I may press him a little more on Amendment 16. If I understood him correctly, he said that it should be for all of the devolved Administrations to publish their responses to a consultation. I would beg to differ. It would be much better for all concerned, including myself, to find in one location on a national Westminster-based government website all the responses that have been published.

He did not comment—I would be grateful if he would—on why he would feel unable to give reasons for any decisions reached. I am grateful to the noble Lord, Lord Foulkes, who has also signed Amendment 16. Is there any problem the Government would have in giving reasons for any decisions if they were not prepared to accept the responses to the consultations from the devolved Administrations?

[Lord Callanan (Con)]

I will write to the noble Baroness with further information on that point.

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[Baroness McIntosh of Pickering (Con)]

My Lords, I speak briefly on both these amendments. I have a lot of sympathy with what the noble Baroness, Lady Boycott, and co-signatories are pushing in Amendment 23. I presume that, in responding, the Minister will say that the Government are putting forward an economic Bill to create an internal market to compensate for us leaving the internal market of which we have been a member for 46 years.

Amendment 23, like Amendment 21, does not have regard to the one remaining part of the original Article 36 of the Treaty on the Functioning of the European Union that has been left out of Amendment 21. I gather this was an oversight that will be corrected at Third Reading. In my view, the fatal flaw is that any reference to public safety or security has been left out. It is interesting to note that environmental standards and protection of the environment—which, I would say, includes climate change—and many of the other issues in Amendments 21 and 23 are dealt with elsewhere. It is bizarre to leave out any reference to public safety and security when we are in the middle of a pandemic, which is why I could not vote for Amendment 21 at this stage.

I am full of praise for the noble Lord, Lord Wigley, for bringing forward Amendment 22. I presume that the Minister, in responding, will say that it is not this Bill but the Trade Bill that will prevent the Welsh Government or Yorkshire councils from seeking to favour their own produce in public procurement. I am particularly mindful of the work that Deliciouslyorkshire does. Obviously, all food in Yorkshire is delicious, but Deliciouslyorkshire is a marketing organisation that promotes foods made in Yorkshire.

I was very enthusiastic about one of the potential benefits, if there were to be any, of leaving the European Union in that we would be able to source more of our foods locally. Now I understand that, in the global procurement agreement in the Trade Bill, we will have to meet exactly the same threshold as we were required to meet in the European Union public procurement policies and tenders for bids. Am I right, or is the noble Lord, Lord Wigley, right? Will there be opportunities for the Welsh Government and Yorkshire councils to promote and source more of their own foods in, for example, local hospitals, prisons and schools than would otherwise have been the case?

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

My Lords, I support Amendments 22 and 23, but I shall refer in particular to Amendment 22 in the names of the noble Lords, Lord Wigley and Lord Hain. Again, this is about ensuring that no straitjacket or limit is placed on the procurement practices of devolved Administrations. It is about protecting their functions, with particular reference to the market access principles, which should not override devolution settlements. The noble Lords, Lord Hain and Lord Empey, referred to the situation of Northern Ireland which, in terms of goods for procurement purposes, will be subject to the Northern Ireland protocol and, therefore, the EU.

While I believe there is a need to ensure that there are no borders anywhere, whether in the Irish Sea or on the island of Ireland, notwithstanding that, there are areas of clarification required. Can the Minister say, or perhaps write to us on it at a later stage, whether any procurement practices would apply to the devolved Administration in Northern Ireland which would be subject to UK oversight as per the Bill? Will there be any at all?

Secondly, on the previous group I asked the Minister whether he could provide an update on the interparliamentary Brexit forum, which consisted of representatives of the devolved Administrations and the UK Government. It has not met since September 2019. Maybe he could provide us with an update on when its next meeting is likely to take place.

Further to the point made by the noble Lord, Lord Empey, I am reminded of those made by the UK constitution monitoring group. It said that government Ministers have occasionally asserted that the United Kingdom Internal Market Bill is not a constitutional measure at all but is concerned only with economic policy. It would therefore perhaps be better to characterise it as a key building-block in an emerging economic constitution for the UK, post Brexit. However that may be, the group believes that the Bill raises fundamental questions about the governance of the UK following withdrawal from the European Union, in particular whether it will be possible to establish a common understanding of the future role and importance of the devolved institutions in UK governance. Would the Minister like to comment on that statement in his wind-up, and will he assure the House that market access principles will not be used to override the devolution settlement?

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Finally, I turn back to the services provisions. There must be a good answer to all of this, or the Government and my noble friend would not be trying to rush the new powers and exemptions through. However, as someone with wide experience of government and business, I am not yet satisfied. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to my noble friend for moving this amendment and giving us the opportunity to have a general debate on Clause 16. I will take this opportunity to ask my noble friend if he could elaborate a little on the background to this clause.

I understand that, in their consultation, the Government wrote:

“the UK Government’s proposals are an adaptation of existing rules in the Provision of Services Regulations 2009 which contain regulations on mutual recognition and non-discrimination. Rules included in the UK Internal Market Bill will look to retain the effect of the Provision of Services Regulations”.

I am sure my noble friend Lady Neville-Rolfe was being very honest when she said that this is not clear and that she does not entirely understand the background to it. I do not think that she is alone. Against that background, is it entirely fair to have only given businesses the opportunity to consult on these provisions for one month? My understanding was that the normal consultation period is at least two, if not three, months, and I wondered why the consultation on these provisions was restricted to four weeks.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I thank the noble Baroness, Lady Neville-Rolfe, for drawing this clause to our attention, and I agree with the comments that have been made. In particular, I agree with the question about how you distinguish between goods and services when, nowadays, many things are never sold but rather licensed or rented and must sit either with one foot in each camp or, possibly, goods become services and vice versa.

Other confusions also arise around things that originally can be excluded but then are not when there is a substantive change to their regulation. There was some discussion, in which I was not involved, on this in Committee. What constitutes a substantive change? If you have authorisation requirements and a list of 10 things, does it mean that five have to be changed or does it mean a significant change to one? If you had to add on another one because there are some changes in circumstances, who is to know whether it is then out or in?

There are certainly a lot of things that are not yet clear and, if it does—as the noble Baroness, Lady Neville-Rolfe, has said—interfere with our services, which are the majority of our trade, then we will be in a very difficult situation. I would welcome further clarification, or indeed amendments, to make matters clearer. I am not sure whether removing the clause actually helps because the knock-on effect elsewhere would of course be substantial, but I think that there is something that needs to be fixed.

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Moved by

[Baroness McIntosh of Pickering]

39: Clause 19, page 13, line 17, at end insert “but only to the extent that it directly discriminates against the service provider.”
Member’s explanatory statement
This amendment clarifies the meaning of Clause 19(1) regarding the effect of a statutory requirement under Clause 16.

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 39 I will speak also to Amendment 40, relating to Clauses 19 and 20. The amendments clarify the meaning of Clause 19(1) regarding the effect of a statutory requirement under Clause 16 and a similar provision in Clause 20 on indirect discrimination.

If I understood the Minister correctly, in summing up the debate on the amendment of my noble friend Lady Neville-Rolfe, he said that the service provider and regulatory requirement were, in his view, deemed limited enough in scope not to cause barriers to trade. I would like to probe and penetrate his thinking further.

The Law Society has drafted—and I am delighted to thank my noble friend Lord Foulkes of Cumnock for supporting these two amendments—the insertion, at the end, that no effect is only

“to the extent that it directly discriminates against the service provider”

in Clause 19, or indirectly in Clause 20.

When this was debated in Committee with earlier amendments, we expressed reservations about the meaning of “no effect” as it lacked clarity. In summing up the debate on Amendments 81 and 84, my noble friend Lord Callanan said:

“In Clause 21, a legislative requirement is one imposed ‘by, or by virtue of, legislation’.”


He went on to say:

“This extends beyond legislation to rules produced by bodies with powers delegated to them in respect of a particular field of regulation, and it may include licences or requirements contained therein. My noble friend’s Amendments 81 and 84 would appear to have the same effect. However, in my view, the term ‘of no effect’ is the more appropriate to apply in respect of a licence or a non-legislative rule.”—[Official Report, 28/10/20; col. 358.]


Having taken note of my noble friend Lord Callanan’s comments, I now seek to clarify that lack of effect would relate only to that element of the regulatory requirement that directly, or in the case of Clause 20, indirectly, discriminates against a service provider. It is hoped that the Government accept this amendment, as it is meant as a helpful clarification of Clause 19, and the related amendment to Clause 20. I beg to move.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I hesitate to add to the excellent introduction that—if I may call her this—my noble friend Lady McIntosh of Pickering gave, except for one thing. We are dealing here with, in one case, direct discrimination and, in another, indirect discrimination, and only in these circumstances. Noble Lords will recall that, in a debate last week, as we were vividly reminded by the noble Baroness, Lady Ritchie of Downpatrick, the Minister got into a fankle—if I may be excused for using a Scottish word—on the question of discrimination. I hope that he will spell out these two areas carefully, so that the House is clear exactly what the Government think about this.

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[Baroness McIntosh of Pickering (Con)]

I am looking at Clause 19, and I must be being very dense this evening, but I do not see where it already lays out what I am seeking to achieve in Amendment 39. It would be helpful if my noble friend could point me in that direction separately.

I am grateful to all those who have spoken, especially the noble Lord, Lord Foulkes, and the noble Baroness, Lady Bowles, for supporting the arguments in favour of elucidation. I do not think the question of the noble Lord, Lord Purvis, was answered as to whether it relates to an entire regulation or only component parts of it. I am sure he is getting quite used to not having his questions answered on this Bill, so I will not elaborate that point further given the time.

I greatly enjoyed the interchange on various words that could be put in play. I am reminded of what we used to say during the time of a different leader, when we used to call it a right Eton mess, which has another connotation in that regard.

I still believe that there are strong arguments to bring into play the intention behind Amendments 39 and 40, and I may bring them back at a later stage but, for the moment, I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

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Fundamentally, the problem is that the CMA is being used for a purpose for which it was never designed. The office for the internal market, which many of us do not believe is really necessary, should not, if it is necessary, be simply tagged on to the OIM. Amendment 54 acknowledges the fact that, by proposing the office for the internal market as a component of the CMA, it is not good enough to have representation of the board of the OIM; it has to be representation at the board level of the CMA. This is, first, to demonstrate a genuine understanding of the UK-wide role that it now has and, secondly, to protect the CMA from the possibility not only of being accused of getting things wrong but of actually getting things wrong. I will throw another word into the mix: it is very likely that we could finish up with a downright stramash.

[Baroness McIntosh of Pickering (Con)]

My Lords, I welcome government Amendment 52, in the name of my noble friend the Minister. In particular, I am looking at its proposed new subsection (2B), which states:

“The CMA must also, in carrying out its functions under this Part, have regard to the need to act even-handedly as respects the relevant national authorities.”


Would my noble friend the Minister not agree that this seems to dovetail completely with Amendment 54, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd? This seems very attractive because this dovetails entirely with, and supports, the Government’s call for there to be one board member from each of the Administrations. I would like to hear from my noble friend a very good reason for why it would not be the case that those appointments would be made as set out in Amendment 54.

[Baroness Noakes (Con)]

My Lords, I thank my noble friend the Minister for the Government’s amendments in this group, which are very welcome. However, I will focus on Amendment 54, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. Any chairman of a board, whether it is a public or private company or a public body, will say that the most important thing about the board is getting a balance of skills and experience on it. In addition, nowadays, most boards feel the need to achieve a degree of diversity, generally expressed in terms of sex and race.

Putting together a balanced board is a complex task, and trade-offs often have to be made between the different characteristics that the different candidates can bring. The more that seats on the board are allocated to particular sources or interests, the more difficult it is to achieve balance. In something like the CMA, the board is not there to bring representative interests to bear; it is there to make sure that the CMA is run properly, so it should have people who can understand whether it is achieving its objectives or running itself effectively. Those are the most important characteristics.

If one has direct appointment to a public body such as the CMA, that can actually unbalance a board—you could end up with a lack of certain skills or experience, or an overrepresentation of certain commercial backgrounds, for example. When you have a single appointor, which in the case of the CMA is the Secretary of State, the challenge of getting a balance can be worked out between the Secretary of State, his department and the chairman of the relevant body. That is what happens in most public bodies. By taking away some of the appointments, you just make that process much more difficult to achieve.

I continue to believe, despite what noble Lords said earlier, that direct appointment by the devolved Administrations will inevitably be political, because they will be seen as representatives. Indeed, the noble and learned Lord, Lord Thomas, used the word “representatives” when he introduced this amendment earlier. A representative is never completely independent if he or she feels the need to represent.

One of the changes made by the Scotland Act 2016 was direct appointment to the board of Ofcom, and that was followed by similar legislation for Wales and Northern Ireland. I was deputy chairman of Ofcom at the time, so I understand the impact that that can have on board balance—but I do not want to talk about that beyond what I have already said about the difficulties in managing a board when direct appointments are made.

I would like to draw attention to Section 65 of the Scotland Act 2016, where the devolved Administrations were allowed to appoint a member directly. However, that appointment had to be made in consultation with the Secretary of State, which allowed one avenue for conversation to try to make sure that some degree of orderly balance was maintained in relation to the appointments. Amendment 54 does not even go so far as to recognise that precedent, and it is a very extreme action to be taken in relation to the CMA. I hope that the noble and learned Lord, Lord Thomas, will not press his amendment.