Transatlantic Trade and Investment Partnership

Debate between Lord Clarke of Nottingham and Lord Goldsmith of Richmond Park

Tuesday 25th February 2014 Commons Chamber

[Zac Goldsmith]

I thank the hon. Gentleman for that intervention.

There are so many differences between the US and the EU, and not only in the quality of standards, but in the approach to developing them. I cannot imagine a situation in which harmonising standards and regulations would work in the interests of the consumer. I have given the example of GM food labelling, but there are many others. A number of countries around the world, and indeed the EU as a whole, have chosen not to allow the import from the US of beef from cows fed a diet that includes the hormone ractopamine, because of the fairly grave health concerns. I suspect that most British consumers would support that position. Would that be challenged? Well, there is already plenty of talk among agribusiness in the United States that it should be.

Most worryingly, US agribusiness is strongly opposed to EU attempts to limit endocrine disruptors. The links between the use of such chemicals and the alarming increase in precocious puberty among young girls are not disputed. Will those standards that we have set across Europe be adhered to and maintained? That remains to be seen, but we know that plenty of lobby groups in the United States have their sights set on reducing those standards.

It is easy to imagine that regulatory convergence will mean chasing the lowest common denominator. It is worth noting that, according to a whole raft of freedom of information requests conducted by the Corporate Europe Observatory in the context of the TTIP, the Commission has met civil society groups just eight times over the course of those discussions, whereas it has met corporate lobby groups—I do not know how they are defined and am only repeating what has been reported—119 times.

I suspect that most Members across the House would agree that removing or simplifying unnecessary regulations, removing barriers to entry, particularly for small firms, and encouraging free trade are all laudable aims, but they need not happen at the expense of democracy. My concern is that the proposed ISDS mechanisms, which we have already heard a great deal about, will undermine democracy. Under those mechanisms, companies wishing to challenge a national regulation could effectively bypass the usual process and go straight to an investment tribunal. Often hugely important outcomes therefore rest on the shoulders of just three arbitrators—one is chosen by the company, another by the state and the third is a compromise of the two. It is hard to understand how this country would want or need such a system.

My right hon. and learned Friend the Minister was asked recently—

[Mr Kenneth Clarke]

rose—

[Zac Goldsmith]

He is about to intervene, but I am going to quote him anyway, because he might be about to repeat this. When asked why that would be useful for this country, and indeed for Europe, he stated:

“Investor protection is designed to support businesses investing in countries where the rule of law is unpredictable, to say the least.”

There have been so many requests to this Government and to the European Commission for examples of countries in the EU that are beyond the pale along the lines of the description he offered, but not one country has so far been listed, so why do we need this process? Why do we need these tribunals for countries where the rule of law is adhered to more or less across the board?

[Mr Clarke]

As I understand it, an investor who has access to this process would not be able to start arguing in favour of reducing standards in any regulation that has been passed by the legislature. Regulating will remain the responsibility of the authorities that already regulate. The only claim that can be made through the ISDS is that the state has gone back on its treaty obligation. Therefore, unless in the course of negotiations some agreement has been entered into to change regulatory standards on either side of the Atlantic, there is no way our existing rules on food standards or anything else could be challenged by some American company that suddenly decides that now that we have signed a TTIP it has the right to try to change the rules. What we are trying to get rid of is unnecessary regulation and the duplication by regulators on either side of the Atlantic of processes designed to reach the same public objective. That is the kind of thing that can be eliminated, to the huge advantage of companies on both sides of the Atlantic.

[Zac Goldsmith]

I very much appreciate my right hon. and learned Friend’s intervention. At this stage it is very hard to know how things will pan out. Much will depend on the terms of reference, but there are plenty of examples from around the world—as he pointed out, this is not a new concept—of companies using similar provisions in other trade agreements in order to undermine domestic legislation.

The North American Free Trade Agreement is a good example. According to a succession of polls in the past year, just 15% of US citizens want to remain in NAFTA. It has become one of the most unpopular free trade agreements of all; it makes the Euroscepticism that my right hon. and learned Friend talked about earlier look like a joke. A striking example in relation to NAFTA concerns Canada being sued via one of these dispute mechanisms by Ethyl Corporation—he is probably familiar with the case—for banning the chemical MMT, which Canada considers to be a highly dangerous toxin. Canada had to settle; it paid millions of dollars in compensation and eventually had to reverse its ban. Incidentally, the ban still stands in the United States, which makes the decision even more perverse. There are many more examples, and I was going to rattle off hundreds, but time is short and Members will be pleased to know that I will not.

As this treaty unfolds, it is essential that we remain mindful of who it is designed to serve. A guard needs to be erected against the voracious lobbying by big businesses that have a direct interest in undermining a number of the standards that I cited and have been cited by other Members. I personally do not trust the Commission to balance those competing interests, for all kinds of reasons, some of which I have hinted at in my short speech. I strongly believe that it falls to legislators like us to apply scrutiny throughout this process, and I very much hope that we do.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Lord Goldsmith of Richmond Park

Monday 4th March 2013 Commons Chamber

[Zac Goldsmith (Richmond Park) (Con)]

I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?

[Mr Clarke]

There is no definition, because all attempts to define it have got one into worse difficulties.

It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.

We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.

Defamation Bill

Debate between Lord Clarke of Nottingham and Lord Goldsmith of Richmond Park

Tuesday 12th June 2012 Commons Chamber

[Mr Clarke]

No; I shall try to address that issue throughout my remarks. The package that we have produced is aimed at reducing costs and producing more effective remedies for a wide range of people, as well as at reducing the burdensome cost for those trying to defend themselves against actions. I shall keep making remarks that address the hon. Gentleman’s concerns, because I am anxious to ensure that we are not making things more expensive or difficult for any litigant.

Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. However, we do not want sensible mainstream reform to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth. Equally, we want to ensure—this is relevant to the point made by the hon. Member for North Antrim (Ian Paisley)—that it is possible for ordinary people to get a remedy, but only where their reputation has been seriously harmed. We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage. Of course, the Bill is only part of the story. No doubt the conclusions of Lord Justice Leveson’s inquiry will inform broader reforms to press regulation in due course.

[Zac Goldsmith (Richmond Park) (Con)]

It seems that a person would be able to take action only if a single statement caused serious harm to their reputation, but it is usually the case that people find themselves being mercilessly bullied, harassed and hounded by newspapers over a long period. There might not be a single statement that would definitively destroy their reputation, but they nevertheless find themselves being dragged through the mud without there being any individual act meriting the kind of action that the reforms would allow. In those circumstances, what kind of defence would an individual have against a £100-million organisation that is committed to shredding their reputation?

[Mr Clarke]

I think the law of libel offers equal protection in both situations. One single statement can be very defamatory, but so can a series of statements as my hon. Friend rightly says. That has always been the case and I do not think that anyone has ever drawn such a distinction in the law of defamation. The test will be applied to the total conduct of which the plaintiff is complaining and against which he is seeking a remedy. I have alongside me my hon. and learned Friend the Solicitor-General, who used to practise privately in this particular field. He seems to agree with my judgment on this matter, so I think we can put that fear to rest.

Let me deal with the point made by the hon. Member for North Antrim, because the next part of what I have to say is very relevant here. As I have said, alongside the Bill we are seeking to bring about a significant reduction in the sometimes punitive costs in libel cases by introducing a series of procedural changes. Those changes come on top of the Jackson reforms—this involves the Legal Aid, Sentencing and Punishment of Offenders Act 2012—to the no win, no fee conditional fee arrangements. The reforms will reduce the burden on both plaintiffs and defendants and help to reduce overall legal bills, without preventing claimants with strong cases from finding lawyers to represent them.

Our first priority has been to reform the law so that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore raises the bar, by a modest extent, for a statement to be defamatory by proposing that it must have caused or be

“likely to cause serious harm to the reputation of the claimant.”

That was carefully considered in consultation by a lot of respondents. Whereas the draft Bill sought views on a test of substantial harm, which was intended to reflect current law, the new clause drew on the views of the Joint Committee on the draft Bill and the balance of opinions received in the consultation by nudging the threshold up by a modest extent. It will be for the courts to determine, in the light of the individual circumstances of a case, whether the test has been met. However, we hope it will give more confidence to defendants in, for example, the sorts of cases brought against non-governmental organisations and scientists in recent years.

Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, the defences are sometimes unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism, rather than the online world, NGOs, academics, scientists and so forth.