Prevention of Trade Diversion (Key Medicines) (EU Exit) Regulations 2020

Lord Grimstone of Boscobel Excerpts

Tuesday 17th November 2020 Lords Chamber

Moved by

[Lord Grimstone of Boscobel]

That the draft Regulations laid before the House on 2 and 21 September be approved.

Relevant documents: 26th and 29th Reports from the Secondary Legislation Scrutiny Committee (special attention drawn to the second instrument). Considered in Grand Committee on 10 November.

Motions agreed.

Prevention of Trade Diversion (Key Medicines) (EU Exit) Regulations 2020

Lord Grimstone of Boscobel Excerpts

Tuesday 10th November 2020 Grand Committee

Moved by

[Lord Grimstone of Boscobel]

That the Grand Committee do consider the Prevention of Trade Diversion (Key Medicines) (EU Exit) Regulations 2020.

Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I hope that the Committee will be unanimous in support of these regulations and their objective. I have no reservation in saying that these regulations perform a laudable function. They ensure that pharmaceutical companies in Great Britain can continue to produce and sell certain medicines to developing countries at a low cost to help fight key diseases such as HIV and malaria without the potential drawback of these medicines being reimported into Great Britain for sale at a price lower than the domestic market price.

As noble Lords will recognise, many of the poorest developing countries are in urgent need of access to affordable essential medicines for the treatment of communicable diseases. These countries are heavily dependent on imports of medicines because local manufacturing may be limited. Price segmentation between developing and developed countries is necessary to ensure that the poorest developing countries have access to essential pharmaceutical products at heavily reduced prices, while also ensuring that fair market prices in wealthier markets incentivise drug development and investment.

Pharmaceutical manufacturers will produce large volumes of pharmaceutical products at reduced prices for the developing world only if they are assured that these products will not find a way into developed countries’ markets. These regulations correct deficiencies in legislation to establish a procedure that identifies the products, countries and diseases covered and prevents the reimport of such products through seizing and disposing in accordance with national legislation.

These regulations were laid in draft before this House on 2 September. They are made under powers in the European Union (Withdrawal) Act 2020. The Committee knows that, given the context, those powers are limited. All that they allow is the correction of technical deficiencies in existing EU law that, by the operation of the Act, were retained in UK law following withdrawal. These regulations correct such deficiencies by, for example, replacing references to the European Union, its institutions and legislation with the appropriate UK references.

This statutory instrument follows the affirmative procedure because it transfers to the Secretary of State a power that currently sits with the European Commission. That is a power to amend the list of pharmaceutical products under the regulations and the criteria for products to remain on that list. This statutory instrument also replaces the requirement that pharmaceutical products, packaging and connected documents should be affixed with an EU logo with a power for the Secretary of State to make regulations providing for marking, labelling or other identification requirements. This relates to a logo more appropriate for the UK now that we have left the European Union. I beg to move.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank my noble friend Lord Lansley and the noble Lord, Lord Bassam of Brighton, for their contributions to this debate. I am pleased to acknowledge that they also support the reasoning behind the existence of regulations such as these; as I said, I completely concur with that. Let me respond briefly to some of the important questions that were raised directly by the noble Lords.

My noble friend Lord Lansley asked about the logo. Indeed, it is a rather fine logo; for those who have not seen it—I hope noble Lords with a classical education will not mind if I no doubt mispronounce this—it is the winged staff of Aesculapius, with a coiled serpent in the centre of a circle formed by 12 stars. Obviously, there is a relationship between this and other EU logos but it may be important in future, more so than just a sense of “Why can’t we have our own logo?”, to distinguish drugs that have come from the European Union and are subject to its regulations. Who knows, those may over time move differently from our regulations. We therefore need a logo of our own.

That is why the SI contains a power for the Secretary of State to make regulations providing for the marking, labelling or other identification requirements for tiered-price products as the Secretary of State considers appropriate. Obviously we would do this only in consultation with the manufacturers, and new labelling or other identifications will be provided for in future regulations after consultations with stakeholders.

It is perhaps a shame, given the benefit of these regulations, that only one pharmaceutical company takes advantage of them at the moment. The noble Lord, Lord Bassam, asked whether the Government should be more evangelical about the regulations. I suppose my answer is that in a sense the regulations are neutral. They are there for a pharmaceutical company to take advantage of when it makes an application. I am not sure it is the role of the Government to proselytise and evangelise about the regulations, but maybe the mere existence of this debate today will encourage others to raise these points and ask the valid question, “Why are these regulations not made more use of?”

The need for member states to report to the Commission is not relevant to the United Kingdom after withdrawal. This instrument provides for the Secretary of State to review from time to time whether a product listed as a tiered-price product fulfils the requirements of the retained regulation. How that will work is that information on imports and Border Force activity will be collected, reviewed and, where appropriate, made public by the Government as part of standard procedure. We will remain accountable to Parliament in relation to this in the usual way.

As I said, manufacturers or exporters of pharmaceutical products who wish their product to be added to the list have to submit an application to that effect. The noble Lord, Lord Bassam of Brighton, quite properly, and with a great deal of perception, asked what expertise there is in my department, the Department for International Trade, to handle applications in this area. I am happy to reassure the noble Lord that, although DIT has the role of approving these applications, we will work very closely with the Medicines and Healthcare products Regulatory Agency, the MHRA, which of course has the required expertise to assess any medicinal information provided by manufacturers or exporters, to ensure that all considerations are given appropriate weight.

My noble friend Lord Lansley asked about reporting under these regulations. As he noted—having, as always, done his homework very carefully—the last report was published in October 2015 by the European Union. As my noble friend said, the report said that although the net benefits of the scheme are small, what you might call the signalling impact of these regulations is very large, and it came to the conclusion that there was an economic justification for maintaining the regulation. My understanding is that the next report by the EU will be published towards the end of 2020. We await that to see whether it comes to a similar judgment.

The regulations set a requirement for the Secretary of State to publish a report before the end of the period of five years, beginning with the date on which this instrument comes into force. Because we are about to get a report from the European Union, I believe we will not be rushing to do a report of our own under these regulations. We will allow time to pass to assess how these regulations are used, and then we will bring a report forward in due course within the required timescale.

I hope that I have managed to answer all noble Lords’ questions in relation to this short debate, but of course if either of the noble Lords who spoke today wishes to approach me subsequently for any further information or clarification of the points that I have made, as always I will be delighted to do so. On that basis, I commend these regulations to the Committee.

Motion agreed.

Common Rules for Exports (EU Exit) Regulations 2020

Lord Grimstone of Boscobel Excerpts

Tuesday 10th November 2020 Grand Committee

Moved by

[Lord Grimstone of Boscobel]

That the Grand Committee do consider the Common Rules for Exports (EU Exit) Regulations 2020.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I hope that the Committee may be unanimous in support of these regulations and their objective. The regulations were laid before the House on 21 September and were approved by a Committee of the House of Commons on 14 October. They are made under powers in the European Union (Withdrawal) Act 2018, which I will refer to as “the Act” from now on. The Committee will be aware that, given the context, these powers are limited. All that they allow is the correction of technical deficiencies in existing EU legislation that, by the operation of the Act, is to be retained in United Kingdom domestic law following withdrawal from the European Union. The amendments made by these regulations correct those deficiencies by, for example, replacing references to the European Union, its institutions and legislation with the appropriate United Kingdom references.

The retained EU regulation, as amended by these regulations, lays down the basic principle that exports from Great Britain will not be subject to quantitative restrictions unless the restrictions are applied in conformity with the retained EU regulation. The new legal regime makes it clear what the purpose of any export restriction should be. In general, export restrictions may be used only where there is a risk of a critical situation arising on account of a shortage of essential products or to remedy such a situation, or where such a measure is needed to fulfil international undertakings entered into by the United Kingdom.

I start by drawing the Committee’s attention to the fact that these regulations amend the retained EU regulation only as it applies in respect of Great Britain. This is consistent with the Northern Ireland protocol, which preserves the ability of the European Commission to exercise these powers in Northern Ireland. However, as is also set out in Article 6 of the Northern Ireland protocol, nothing may fetter the movement of goods from Northern Ireland to Great Britain, other than to fulfil an international obligation. The EU regulation is not used to fulfil international obligations and so does not fetter the movement of goods within the United Kingdom.

Through the course of the year, we have seen the use of export restrictions on medical goods grow around the world in response to shortages arising during the fight against Covid-19. Indeed, the European Commission used the EU regulation in March in response to shortages of personal protective equipment—PPE. Under this EU regulation, the United Kingdom was required to temporarily authorise any exports of PPE, following a review of licence applications from exporters. In the vast majority of cases, the United Kingdom authorised these exports.

While export restrictions can be appropriate in dealing with critical situations in the short term, the restrictions we have seen build up around the world have disrupted the normal flow of trade and exacerbated the efforts of many countries to combat the global pandemic.

The Government have been clear that countries should limit their use of export restrictions as far as possible. In May, the United Kingdom joined calls for the use of export restrictions to be restricted and to be applied only where deemed completely necessary and in a targeted, proportionate, transparent and time-limited way. By applying strict conditions to the use of any export restriction, this legal regime sends a clear signal to our trade partners around the world that, despite the pandemic, the United Kingdom remains open for business.

I underline for the benefit of the Committee that the Government do not need to implement export restrictions pursuant to the United Kingdom’s international obligations by making regulations under the retained EU regulation as amended by this SI. Other, more specific legislation provides the appropriate powers with which to do this. For example, restrictions that apply to the export of arms are provided for under the well-established statutory regime under the Export Control Act 2002. In addition, Article 10 of the retained EU regulation does not preclude the use of export restrictions where this is required for the purposes of public policy.

I also point to the role that Parliament will play in overseeing any measures that are put into effect under the retained EU regulation as amended by these regulations. This is clearly set out in Article 7A. It explains that any such measures must be contained within a statutory instrument and describes the nature of parliamentary involvement, where Parliament can annul measures in some circumstances and can vote on the regulations in others.

This statutory instrument is subject to the affirmative resolution procedure because it transfers to the Secretary of State a power to legislate that currently sits with the European Commission. That is a power to put export restrictions into effect in Great Britain in certain circumstances. I commend the regulations to the Committee.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank Members for their contributions and will respond as fully as I can in the time available. I am conscious that I will not be able to do full justice to the many points that have been raised which, as always, show the great expertise of your Lordships. If I may, I will write to those noble Lords whose questions I am not able to do justice to during my closing statement.

As I have set out in my opening remarks, the SI makes technical amendments to the retained domestic version of the EU common rules for exports regulations. This will ensure that the retained EU regulation can apply effectively at the end of the implementation period. Many of the complexities to which noble Lords have referred are not as a consequence of this SI, which in a sense has quite a simple purpose; they relate to the complexity of the underlying regulations of the EU. I repeat that the purpose of this SI is to make technical changes to those regulations to bring them into line with our leaving the European Union.

This is a debate about the application of the retained EU regulation as amended in relation to Great Britain. I completely understand the many and varied points that noble Lords have made about Northern Ireland, but for those who want additional information about Northern Ireland, I direct colleagues to the Government’s Command Paper, The UK’s Approach to the Northern Ireland Protocol. This sets out that any procedures that are necessary to comply with any international obligations provided for under Article 6(1) will apply only to—and I stress this—minimal volumes of relevant trade. I take this opportunity to make absolutely clear that any such processes put in place in these very specific cases will have negligible implications for trade as a whole. An important point is that they will be administered by UK authorities, which will, of course, retain operational responsibility. I assure noble Lords that these authorities are able to, and will, exercise their discretion as appropriate.

To make it clear to noble Lords, I repeat that, as I set out in my opening remarks, Article 6(1) of the Northern Ireland protocol makes it clear that nothing—I repeat, nothing—shall fetter the movement of goods from Northern Ireland to Great Britain, except in order to fulfil an international obligation. The EU regulation is not used to fulfil international obligations, and therefore will not fetter the movement of goods from Northern Ireland to Great Britain. The noble Lord, Lord Wallace, asked where on earth these international obligations come from. They come about if the UK agrees to enter into any such international obligation and agrees to be bound by them.

Since the regime in Northern Ireland will be unchanged after the end of the implementation period, the United Kingdom Government will still be able to implement export restrictions in Northern Ireland in circumstances permitted by Article 10 of the EU regulation; that is where they are required on grounds of public policy, or for the protection of health and life for humans. These restrictions under Article 10 are very specific in this effect, and noble Lords can see those in the original regulation.

I ought to again make it clear that this SI is compatible with the United Kingdom Internal Market Bill. The objective of the United Kingdom Internal Market Bill is to protect the highly integrated market across the United Kingdom, guaranteeing that, as EU law falls away at the end of the year, companies will be able to continue to trade unhindered in every part of the United Kingdom. This SI will ensure that the retained EU regulations on the common rules for exports will operate effectively in Great Britain from the end of the implementation period. As I have described, in no way will trade be fettered between Northern Ireland and Great Britain, except in circumstances not covered by these regulations, and therefore perhaps not appropriate for us to debate in great detail today.

A number of noble Lords, including the noble Lords, Lord Blencathra and Lord Purvis of Tweed, asked how the role of Parliament operates and, in particular, about the differences between Articles 5 and 6. As I said earlier, the role of Parliament is as set out in Article 7A in the regulations. The difference between why that article is subject to the negative resolution procedures and Article 6 is subject to the affirmative procedure relates directly to the urgency of the situation in front of us.

Let me explain further. If the Secretary of State implements a measure under Article 5 of the retained EU-authorised regulation as amended, that export authorisation can only be implemented for up to six weeks to prevent a critical situation arising on account of a shortage of essential products or to remedy such a situation. That seems appropriate if the urgency is such that this has to be brought forward quickly and last for only six weeks. A negative resolution SI, which can be annulled in either House of Parliament, is therefore appropriate. If the Secretary of State implements measures under Article 6 of the retained EU regulation as amended, they can take a wider range of forms and are not time-limited. In those circumstances, because of the greater scan, scope and longevity of such regulations, they would be set out in a “made affirmative” SI, which must be voted on within 40 days of being made.

The noble Lord, Lord Purvis, asked about the information that would be available at that time and drew a contrast with the Commission report under the EU regulation. In both cases, further information would be provided to the Houses of Parliament as part of an Explanatory Memorandum. I can assure noble Lords, particularly the noble Lord, Lord Wallace of Saltaire, that in coming to their conclusions about the necessity for the use of regulations, the Government would take account of the whole UK and, if necessary, any views expressed by the devolved Administrations.

I should stress that we are not rushing or looking to find ways in which to use these powers. The Government have been clear throughout the Covid-19 pandemic that the use of export restrictions around the world should as far as possible be limited. No one would be happier than us if we found that we never had the need to use these powers. The Prime Minister underlined that view recently in a speech to the United Nations, in which he urged countries to lift export controls on Covid-critical products wherever possible. The Government have no plans at present to bring forward further export restrictions under this retained UK regulation.

The Government do not apply any restrictions on medicines under these regulations and do not intend to do so. I can reassure the noble Lord, Lord Wallace of Saltaire, on those points. The UK applies certain limited restrictions on the export of medicines designed for UK patients on the UK market where there is a risk of a shortage in the UK, but those restrictions are made pursuant to the Human Medicines Regulations 2012, which require wholesalers to ensure, as far as possible, that the needs of patients in the UK are met.

In conclusion, my noble friend Lord Blencathra asked about Project Defend, as it is commonly known. The coronavirus pandemic has demonstrated the importance of resilient supply chains to ensure the continued flow of critical goods and to keep global trade moving. We are working closely across the Government to analyse UK supply chains for a range of critical goods, excluding food, and to help define strategies to ensure that the UK has resilient and diverse critical supply chains.

My noble friend Lord Trenchard asked about how this SI would technically operate in conjunction with the retained EU regulation. It amends the retained EU regulation, which then passes into UK law in this amended form if noble Lords agree to these regulations today.

I have my eye on the clock and am conscious that I have not done full justice to the detailed points raised by noble Lords. As I said at the beginning of my wind-up, I will write to them and place a copy of my reply in the Library. On that basis, I commend these regulations to the Committee.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

The Grand Committee stands adjourned until 6.15 pm. I remind noble Lords to sanitise their desks and chairs when leaving the Room.

Trade Bill

Lord Grimstone of Boscobel Excerpts

Committee stage
Thursday 15th October 2020 Lords Chamber

[Baroness Kramer (LD)]

My Lords, I drafted Amendment 109 essentially in reaction to Amendment 106 proposed by the noble Lord, Lord Stevenson, which would require the group of non-executive directors of the TRA to include stakeholders. I have no problem with people with those backgrounds and expertise being on that board, but I fear that it could raise false expectations. You could say that this was a particular bête noire of mine: non-execs on a board must act in the interests of the organisation on whose board they sit. Membership is in many ways a gagging order, if they have other interests and represent other relevant parties. The noble Baroness, Lady Noakes, pointed out, as did my noble friend Lady Bowles, that their work is very largely procedural and concerns governance: whether rules have been followed, whether risks have been assessed and what remuneration is right for senior executives. However, I believe that stakeholders, especially given the economic importance and potential impact of the TRA, should be able to speak and persuade freely in the interests of the organisations or different nations of the UK, the businesses they belong to or the consumers they represent. That applies just as much to other relevant groups.

Our proposal in Amendment 106 is to create an advisory committee. In my mind at least—and this is not necessarily underscored in the amendment’s language —it would be like the two-tiered corporate governance systems that we see in many continental European countries. Of course the TRA can set up committees. However, I am concerned that, as they are written in the Bill, they will have a tendency to be ad hoc and lack status, whereas a board that contains representatives with a specific role and status established in legislation has much more impact and is exceedingly important as a flow of information and advice to the TRA. I pick up a comment which I think the noble Lord, Lord Lansley, made, which is that it is really important that advice is balanced, and this would be one of the mechanisms that would help to ensure it.

I join the noble Lord, Lord Stevenson, and others in their call in Amendment 81 for pre-appointment hearings by the Select Committee on International Trade. These would be for appointments to the Board of Trade—and, as the noble Baroness, Lady Noakes, said, TAGs would probably be thrown into that as well. I spoke on this extensively on Tuesday, and I shall not repeat the comments, as the case has been very well made. The same amendment calls for appointments to be made following the governance code for public appointments. We are in a pretty pass when this House has to put such a requirement in a Bill in regard to such key and important appointments. Clearly, it has to do so because No. 10 has been so clear in its intentions to skirt those requirements wherever possible.

The noble Baroness, Lady Noakes—and I saw the noble Lord, Lord Lansley, nodding confirmation—pointed out that the appointments would essentially be limited to members of the Privy Council. I am really shocked at the thought that the Privy Council mechanism is being used to get around what everyone would expect to be a process that came under the governance code for public appointments. The noble Lord, Lord Grimstone, has a long history with that code, and I hope that he will be sufficiently shocked that he goes back to the Government and discusses that issue. All these appointments need to have the absolute smack of integrity, and there must be an absolute absence of cronyism.

Amendment 83 raises the issue of non-disclosure agreements. I was very pleased to see this language in there. I think that the drafting probably needs some work but, again, we are in Committee. Non-disclosure agreements are being widely abused, instead of being kept to their original and narrow purpose of preventing commercial harm essentially by a competitor company, or disclosure of intellectual property, pricing and so on. I have worked with so many whistleblowers who have experienced the impact of these gagging orders, which tend to work very much against the public interest. We need a proper drafting into the Bill of the kind of language that would limit the scope and purpose of non-disclosure agreements to the most restricted kind of necessity that they originally covered, not the expansive use that has become habitual as a way to protect privacy and avoid challenge.

Amendment 110, in my name and that of my noble friend Lady Bowles, again raises the issue of properly funding the TRA, including providing for its inherited liabilities, to protect its independence. I spoke to this on Tuesday, so I shall not repeat myself, but there is a common sense among many of your Lordships that funding the TRA is an issue that has to be challenged. It must not find itself in a position of being short of resource and, therefore, curtailing or basically shaping what it does because of a lack of funding.

Amendments 111 and 112 in my name and that of my noble friend and Amendment 113 in the name of the noble Lord, Lord Lansley, which I think is a very significant amendment, strengthen the reporting requirements of the TRA and finally provide some substance to the report. I spoke on an earlier group of the criticism of this Bill from the Constitution Committee—essentially, of its thinness and skeleton nature. Providing this kind of substance is genuinely critical if the significance of Parliament is to be recognised. As drafted, the Bill, as we have heard on two groups of amendments today, raises issues of transparency and independence. Therefore, like my noble friend Lady Bowles, I find it frustrating and inappropriate that the report of the TRA comes to Parliament only via the Secretary of State. That strikes me as a mark of undesirable dependency. We have been arguing all the way through that the TRA must be visibly, clearly and openly independent. Its ability to report directly to Parliament is surely a litmus test of that.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, we have had a most interesting debate on this group of amendments, particularly touching on many aspects of corporate governance. To put my cards on the table, I am a fervent believer that good corporate governance leads to good decisions. Noble Lords were absolutely right to make their comments about the importance of governance.

I thank the noble Lords, Lord Bassam of Brighton and Lord Rooker, and the noble Baroness, Lady Bennett of Manor Castle, for tabling Amendment 81, and the noble Lord, Lord Stevenson of Balmacara, for moving it. Noble Lords may be interested to hear that, technically, the only member of the Board of Trade is its president, the Trade Secretary, as it is a requirement that, to be a member, you must be a privy counsellor. The Board of Trade is one of our most historic boards, which is why, as noble Lords can imagine, it was set up that way. My noble friend Lady Noakes was quite right about this, as was my noble friend Lord Trenchard, who added his normal wisdom to our debate.

The Board of Trade advisers are just that: advisers. They are not board members. We brought together experts from business, academia and government, who we hope will use their expertise and influence to help Britain make a stronger case for free trade on the international stage and to encourage more businesses across the UK regions and nations to boost their international trade. They are not policymakers, as such; the board and its advisers take a collaborative approach, focused on promoting the UK regions as destinations to trade and do business with.

The selection process for all advisers is the same: they are first shortlisted by the president of the board; departmental officials then conduct due diligence, in accordance with guidance from the propriety and ethics team at the Cabinet Office. Throughout this, principles are followed that are consistent with those underpinning the Governance Code on Public Appointments, to provide advice on the suitability of appointments. As they are direct appointments, the Secretary of State considers the advice provided and, following No. 10 approval, has the final decision on whether or not to appoint. The board’s sole function is to provide expert and apolitical advice to the department. As such, the role of adviser to the board does not carry with it the responsibility to make decisions, hold senior staff to account or have any role in striking trade deals while representing the UK overseas.

I listened carefully to the comments made by the noble Baroness, Lady Bennett, and the noble Lord, Lord Wigley, about Mr Tony Abbott. As the PM has made clear, the Government do not agree with all of Tony Abbott’s views; nor do his views reflect the views of the Government. As with all advisers, he has been appointed because of his expertise in trade matters.

I thank again the noble Baroness, Lady Kramer, for her kind words about my small role in public appointments and for explaining the need for all public appointments to be made with integrity. Cronyism must have no place in our public appointment system.

Amendment 83, tabled by the noble Lord, Lord Stevenson, relates to the trade advisory groups established by my department. The trade advisory groups will engage with businesses across the whole of the UK to access the strategic and technical expertise necessary to progress our trade negotiations with new partners across the globe. They have a very wide membership, embracing exactly the types of organisations referred to by my noble friend Lady McIntosh. The names of all members and their affiliations can be found on GOV.UK.

Trade advisory groups are just one part of the Government’s external engagement on international trade. We of course recognise the very important position that civil society organisations, such as trade unions, occupy in our society, particularly the unique insight that they can offer on important issues. I confirm that we are deepening our engagement with trade unions in relation to trade matters and we will announce more details of that in due course.

I have heard the concerns over confidentiality, and I reassure the House that we intend to share sensitive information only where it is relevant to current negotiations and where the trade advisory groups are best positioned to provide advice and expertise. This is information which must of course be protected, because if such information were to be released it may compromise our negotiations with key partners.

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Moved by

[Lord Grimstone of Boscobel]

86: Clause 8, page 5, line 22, after “trade,” insert—
“(aa) facilitating the exercise by a devolved authority of the authority’s functions relating to trade,”Member’s explanatory statement
This amendment would ensure that HMRC is able to disclose information to a devolved authority.

[Lord Grimstone of Boscobel (Con)]

My Lords, this group consists of three government amendments, which are minor and technical in nature, together with an amendment in the name of the noble Lord, Lord Stevenson. I will present the government amendments, before responding to Amendment 89. The amendments all relate to the data disclosure provisions at Clauses 8 and 9.

On government Amendment 86, it has always been our intention that the devolved Administrations should be able to access HMRC information to facilitate the exercise of their trade functions through the powers in the Bill. However, in recent discussions, colleagues in the devolved Administrations asked for their ability to receive information to be made more explicit in the Bill. I am happy to offer this clarity. This amendment puts beyond any perception of doubt that the devolved Administrations can access HMRC information for their trade functions through the Bill.

The associated government Amendment 96 is simply a consequence of Amendment 86, and explains what is meant by “devolved authority” for the purposes of the Bill. We have worked closely with the devolved Administrations to ensure that the data-sharing gateways in the Bill also assist them with their devolved functions. In this spirit, I make two further commitments to the devolved Administrations on data-sharing in Clause 9.

First, the data shared under Clause 9 will be used by the border impact centre and the Cabinet Office to develop strategic insights. They are committed to sharing strategic analysis related to flow of trade, where it will support the more effective management of flow through the border. I understand that Cabinet Office officials have been working closely with counterparts in the devolved Administrations to ensure that relevant analysis and information relating to trade and management of the border can be shared to support devolved functions. Examples of the types of information that the border impact centre intends to share with relevant parties in the devolved nations are flow patterns through ports. The Cabinet Office will continue to work with the devolved Administrations to ensure that the border impact centre provides strategic benefit to management of flow through key ports.

Secondly, the UK Government commit to consulting the devolved Administrations before any devolved authorities are added to, or removed from, the list of specified authorities that can share data under Clause 9.

Amendment 90 corrects a drafting omission in Clause 10(4)(b)(i) in relation to the imprisonment term for a person guilty of an offence who is liable in England and Wales on summary conviction. Clause 10 as currently drafted provides that a person guilty of an offence under the clause is liable on summary conviction in England and Wales to imprisonment for a term not exceeding 12 months or to a fine, or to both. Until the relevant provisions of the current Sentencing Bill are enacted and commenced, however, magistrates can impose a sentence of only up to six months’ imprisonment for a single offence in England and Wales.

In other legislation that provides for a maximum penalty of 12 months’ imprisonment on summary conviction, a provision concerning magistrates’ current sentencing powers is included to provide that reference to “12 months” is to be read as reference to six months until the relevant provisions of what will be the Sentencing Act are commenced. The amendment adds a similar provision to the Trade Bill.

I hope noble Lords will support these minor and technical government amendments.

[Baroness McIntosh of Pickering (Con)]

My Lords, I express my gratitude to my noble friend Lord Grimstone for making these amendments. This flags up a constant issue, whereby issues are raised late and at quite short notice by the devolved Administrations, but it also flags up a broader issue for another day as to where we are with the common frameworks.

I want to put one question to the Minister about the remarks that he has just made. He refers to the fact that the Cabinet Office will be responsible for disclosing this information and making it available to the devolved Administrations under Clause 9. He went on to say that in future they will now be consulted under Clause 9. I want to go one step further and ask him, in the usual way, that they are not just consulted but that the Government wait for them to give their consent to these changes, particularly if they might not just be technical but could be substantial. It is extremely important to keep the devolved Administrations on side, given that there will be elections at some point in the future where this could be used to the Government’s disadvantage. Could the Minister just confirm that they might await consent rather than just consultation?

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[Lord Grimstone of Boscobel (Con)]

My Lords, if it is a parliamentary expression, I may perhaps first say touché to the noble Lord, Lord Purvis, in relation to our earlier exchanges and I look forward to receiving his letter on those matters.

On my amendments, I was perhaps too optimistic and hopeful in describing them as minor and technical government amendments. So that I can give a full and accurate response to noble Lords who have raised questions on them, I will write to noble Lords answering all their points and place a copy in the Library.

Turning to Amendment 89 in the name of the noble Lord, Lord Stevenson, there are criminal penalties for any unauthorised sharing of data that apply under the existing Commissioners for Revenue and Customs Act 2005, which the Bill references. I would not want to impose different penalties for wrongful disclosure of HMRC data shared for trade purposes from those for HMRC data shared for other purposes under the 2005 Act. It would seem wrong to make that differentiation. I hope that provides reassurances to the noble Lord and that he will withdraw Amendment 89. I commend Amendments 86, 90 and 96.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I shall now put the Question that Amendment 86 be agreed to. As many as are of that opinion will say content. To the contrary, not content.

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The noble Lord, Lord Lansley, made a good point about the procedure for considering these issues: that it would be better if it were the affirmative procedure rather than the negative procedure. Clearly, there are issues such as timeliness to consider, but the affirmative procedure offers greater scrutiny to Parliament. In general terms, we on our side tend to agree with that.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank my noble friend Lord Lansley for his interest in the UK trade preference scheme. The Government share his interest in using trade preferences to support trade and development, and I am happy to discuss the Government’s commitments in this area.

I reassure the Committee that the Government have made long-standing commitments, including to Parliament, to replicate the EU trade preference scheme. The UK trade preference scheme—UK GSP—will provide the same level of access as the current EU trade preference scheme by granting duty-free, quota-free access to the UK market to least developed countries and by granting tariff reductions to other developing countries. It will replicate the three levels of market access provided by the EU, including an enhanced level of market access for economically vulnerable countries that ratify and implement 27 international conventions.

As noble Lords will be aware, coronavirus has had a severe impact on trade for many developing countries. Providing certainty that we will continue their GSP access is an important way of supporting their economic recovery.

I can confirm that the first set of GSP regulations will be laid before the end of the year and that they will maintain continuity of market access. I listened carefully to the points made by my noble friend Lord Lansley and the noble Lord, Lord Purvis, but, as these regulations do not effect any significant changes compared with the EU’s generalised scheme of preferences, the Government consider it more appropriate, when parliamentary time is stretched, to keep these as negative procedures.

However, I say to noble Lords that, after we have ensured continuity of the EU trade preference scheme in the transition period, we are committed to improving the UK’s trade preference scheme further in due course. I can confirm that we want the UK’s unilateral preferences to be as effective and simple to access as possible, to best support economic development in poor countries and to support UK businesses and consumers to access competitively priced goods. I reassure the noble Lord, Lord Purvis, that we will make available the information in the autumn that we said we would make available.

I turn to the second part of amendment on human rights, and reassure noble Lords that the power in Section 10 of the Taxation (Cross-border Trade) Act allows for preferences to be varied, suspended or withdrawn and, by extension, allows the Government to address human rights violations of the type that this amendment seeks to address. I can assure the House that regulations to create the UK preference scheme will include provisions for the variation, suspension, or withdrawal of trade preferences where the beneficiary country engages in serious and systematic violations of human and labour rights. The noble Lord, Lord Chidgey, gave us some very powerful and chilling reasons why it is very important that we have these options. The Government will look at range of options in the event of human rights violations, and we shall balance the need to act decisively, where required, with the need to follow due process.

My noble friend Lord Lansley raised the question of Cambodia. The UK shares the EU’s concerns over the human rights situation in Cambodia, and continues to raise them with the Cambodian Government. However, the UK, rightly and properly, will take into account all the available evidence before taking a decision on whether to partially suspend Cambodia’s preferences at the end of the transition period.

The UK has a strong history of protecting these principles and promoting our values globally, and we will continue to do so. The Government do not shy away from issues of human rights, including during our discussions on trade. Moreover, the introduction of political considerations related to human rights does not fit with the purpose of the list of countries in Schedule 3 to the Act. This was intended to determine eligibility based on objective classifications by international bodies. The proper place to include these provisions is in the regulations that we will be introducing before the end of the year.

I undertake to write to noble Lords who raised detailed questions in the debate that I have not covered in this winding-up.

As this is the last amendment we are debating, I ask for the Committee’s indulgence to put on record my gratitude and appreciation to noble Lords, who have spoken with great passion, knowledge and experience during all the debates. I have personally found the expertise and constructive engagement I have had extremely valuable, and I thank noble Lords for their patience as I have begun to learn my trade as a Bill Minister. I thank the noble Lords, Lord Stevenson, Lord Grantchester, Lord Purvis and Lord Fox, the noble Baroness, Lady Kramer, and my noble friends Lord Lansley, Lady Neville-Rolfe and Lady Noakes. I think that noble Lords will also want to join me in paying tribute to my noble friend Lord Younger, whose support, guidance and good humour has been invaluable to me. On a personal level, I also thank the Bill team in my department for some tremendous work, and my private secretary, Donald Selmani, for spending long hours sitting in the Box.

The debates that we have had in Committee have allowed a detailed assessment of this Bill, as well as of wider trade issues. We now have some time in which to reflect on the views that we have heard—and, of course, I undertake to do that. I will use this time carefully and I look forward to engaging with Peers and debating the Bill further on Report.

On the amendments that we have been discussing, that just leaves me to say that I am grateful to my noble friend Lord Lansley for raising these important issues. I hope that I have been able to reassure him and other noble Lords, and that he will agree to withdraw his amendments.

[Lord Lansley (Con)]

My Lords, I am grateful to the Minister for his response to this debate. I am pleased that we have finished with an illustration, and I am grateful to the noble Lord, Lord Chidgey, in that regard, and to the noble Lord, Lord Purvis of Tweed, for giving powerful, relevant examples of how the trade preferences and the way we manage our trade in future can have substantial impacts in some of the poorest countries of the world.

It is rather important that we finish by recognising that, while we do our dry legal work here, there will be powerful, real-world consequences of the decisions that we take. It is precisely for that reason that I tabled this amendment—to illustrate that, as a Parliament, we want to get involved in the debate about how we can make our UK trade preference scheme more generous, more accessible and able to support sustainable development around the world more effectively. We may well start by replicating the EU scheme, and I think the EU would legitimately argue that its generalised scheme of preferences is a world leader, but that does not mean it is perfect. It is important for us to recognise that there may be ways we can further develop it, given our ability to deploy our development expertise around the world.

I also understand the Minister’s argument about the first regulations being essentially to replicate the EU scheme, so why should we take up our valuable time debating them? The noble Lord, Lord Purvis of Tweed, shared the point that our global tariff is not the same as the EU’s tariff. In so far as there are differences, it will have consequences for the least developed countries. Some of those consequences—for some products for some countries—might be really significant, and the noble Lord gave us examples of that. That is especially true if we do not have rollover agreements. It is bound to be true in that the EU has, for example, regional trade agreements that give rise to accumulation opportunities that we will not necessarily have in place early next year. So, easy as it is to say that we will simply replicate the EU scheme, I am afraid that there will be differences from the outset. I want to make sure that those differences are not negative and we find ways to deal with the potentially negative consequences for the neediest countries, but also go on, perhaps, to find new opportunities in the future.

I hope this is a debate that the Minister wants to have and that we will continue to have but, in view of everything he said, I do not want to press it now. As someone who has participated in all these Committee days—as my noble friend Lord Bates will recall, we did the same back in the early part of 2019—I think the Minister can rest assured that he has had an effective, capable and impressive first outing as a Minister working on a Bill. In response to his kind words to noble Lords, we have all very much appreciated the way that he, my noble friend Lord Younger of Leckie and officials have gone about the process of working with us. We look forward to that being continued on Report. I beg leave to withdraw Amendment 92.

Trade and Agriculture Commission and Trade Remedies Authority

Lord Grimstone of Boscobel Excerpts

Thursday 15th October 2020 Lords Chamber

[Baroness McIntosh of Pickering]

To ask Her Majesty’s Government what is the budget for (1) the Trade and Agriculture Commission, and (2) the Trade Remedies Authority.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, the commission members are unpaid and are reimbursed for reasonable travel costs. They are supported by a secretariat run by DIT, made up of officials from various government departments and paid for out of their respective departmental budgets. We estimate the cost of the commission’s secretariat to be £770,000 over the duration of its term. The 2020-21 financial year budget for the Trade Remedies Investigations Directorate is £12,210,307. Once established, provisions will be made in accordance with usual procedures to fund the TRA.

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

My Lords, I am grateful for that Answer. It confirms that the Trade and Agriculture Commission is not independent but run entirely by the Department for International Trade. Will my noble friend concede that there is a widely held view that the commission should become a permanent body or, as suggested by his adviser, Henry Dimbleby, replaced by an independent, permanent body to make sure that the commission and its standards are statutory, and that it has its own budget, resources and staff. Otherwise, it is a sham, an empty vessel, and is not able to do the work that it has been charged by the Government to do.

[Lord Grimstone of Boscobel (Con)]

My Lords, I am afraid that I do not agree with my noble friend. The commission is an independent body and is made up of independent-minded representatives from across the agriculture, retail, consumer, hospitality, animal health and environmental sectors. It questions their integrity to think that they are other than completely independent.

[Lord Davies of Gower (Con)]

With regards to the Trade Remedies Authority and its resourcing, given that we are fast approaching the end of the transition period and in an uncertain climate, if I may put it that way, can my noble friend assure us that the authority will, come January, have sufficient resources to be effective and capable of supporting ongoing and topical tariff issues between Boeing and Airbus, given all the implications for competitiveness and manufacturing, which means so much for employment, particularly in Wales?

[Lord Grimstone of Boscobel (Con)]

My Lords, current plans are for the TRA to have 129 posts. Currently, more than 75% are filled within the TRID. I am certain that there are enough resources and the authority will be able to undertake the duties given to it.

[Baroness Hayman (CB)]

My Lords, during our debates in Committee on the Trade Bill, Ministers have resisted making amendments to align trade policy and agreements with our environmental and climate obligations in the Bill. They have, however, assured us of

“the Government’s commitment to addressing the global environmental challenges that we face.”—[Official Report, 13/10/20; col. 1068]

What mechanisms will they put in place to ensure that the TRA and the Secretary of State receive appropriate advice on climate and environmental considerations? Will there, for example, be consultation with the Committee on Climate Change?

[Lord Grimstone of Boscobel (Con)]

My Lords, the Government take their responsibility towards climate change and net zero extremely conscientiously. I can reassure the noble Baroness that we take advice from and consult all those bodies as appropriate when we are considering FTAs.

[Baroness Young of Old Scone (Lab) [V]]

My Lords, the Trade Remedies Authority is basically about locking the stable door after the horse has bolted and dumping has occurred. Given the Minister’s statement, it has a generous budget compared with that of the Trade and Agriculture Commission, which is about maintenance of standards and preventing dumping before it happens. Is that a sign of how unimportant the Government believe the Trade and Agriculture Commission to be, as already signalled by its stunted remits and limited period of existence?

[Lord Grimstone of Boscobel (Con)]

My Lords, with all due respect, I do not accept the hypothesis advance by the noble Baroness. The Government have been clear that we will not sign a trade deal that will compromise our high environmental protection, animal welfare and food standards. We are a world leader in these areas and this will not change.

[Lord Purvis of Tweed (LD)]

My Lords, the Government’s extraordinary move to trigger the Parliament Act to prevent MPs from even debating a Lords amendment to the Agriculture Bill on a trade standards commission was described by the Tenant Farmers Association’s chief executive George Dunn as,

“a shocking piece of political chicanery to prevent MPs from a vote on this important piece of legislation.”

If, at Report on the Trade Bill, we seek to strengthen the Trade and Agriculture Commission, as the noble Baroness, Lady McIntosh of Pickering, indicated, will the Minister assure the House that there would be no such chicanery, as described by the Tenant Farmers Association, and that we would be able to pass an amendment that the Government would allow MPs to have a view on?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am happy to remind and perhaps educate the noble Lord on how parliamentary procedures work in this area.

[Noble Lords]

Oh!

[Lord Grimstone of Boscobel (Con)]

Decisions on financial privilege are taken by the Speaker, following clear parliamentary procedure. The Government do not have any input into this process.

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

My Lords, after the Trade Bill receives Royal Assent, the Secretary of State will have the power to appoint the TRA chair and its non-executive directors and approve the appointment of the TRA chief executive officer, all without independent scrutiny or parliamentary approval. How do those authoritarian powers protect the TRA’s operational independence and ability to make impartial assessments, as required by the Bill?

[Lord Grimstone of Boscobel (Con)]

My Lords, we will be debating these matters during the Trade Bill Committee this afternoon, when I will cover the topic in more depth. However, I can assure the noble Lord that, in appointing people to the TRA board, we will strictly adhere to the code on public appointments and make sure that people who are appointed are all completely fit for purpose.

[Lord Cormack (Con)]

My Lords, I refer my noble friend to the letter in the Times this morning from the admirable president of the NFU, Minette Batters, in which she makes a plea for Parliament to,

“take back control of our trade policy”,

so that British farmers are,

“not undercut by imports that would be illegal to produce here”.

There is widespread concern on these matters that is given voice by Minette Batters. Can my noble friend give an encouraging reply to her concerns?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am afraid that I have not seen that letter, but I will certainly read it afterwards. The Government are focused on getting trade deals that protect and advance the interests of our farmers and consumers. If a deal is not the right one for our farmers, we will walk away from it.

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

My Lords, the Trade and Agriculture Commission has been given a very tight timetable within which to produce what we hope will be a meaningful report. Does the Minister accept that the timetable, as given, may be difficult, and would he be willing to extend it if necessary? How soon can we expect a report from the commission to be tabled before the House for Parliament to discuss?

[Lord Grimstone of Boscobel (Con)]

My Lords, the noble Lord is right to say that the TAC has a fixed term, as set out in its terms of reference. Members of the commission accept their appointments on that basis and, I am sure, feel satisfied that there is sufficient time. At the end of the TAC’s term, it will submit its advisory report, which will be presented to Parliament by the Department for International Trade at that time.

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

My Lords, I welcome with pleasure the appointment of the president of the Farmers Union of Wales—a union I worked for as a legal adviser when I was a young man—to the Trade and Agriculture Commission. Specifically, what are the objections to extending the period of the commission’s remit, and when will it publish its reports?

[Lord Grimstone of Boscobel (Con)]

My Lords, the commission has a specific task: to provide strategic advice to the Government and write a report on a particular area. As I said previously, it will produce its report at the end of its six-month term and that report will be presented to Parliament. I am grateful for the noble and learned Lord’s acknowledgement of the quality of at least some of the commission’s members.

[Lord Bradshaw (LD) [V]]

When this report is completed, on what basis will it be submitted to Parliament? Will it be a document of which we are to take note? Will we have an opportunity to debate it or change the legislation if necessary? How much power will Parliament have once this report is published?

[Lord Grimstone of Boscobel (Con)]

I am sure that that will be discussed in the usual channels and considered by the Leader of the House at the appropriate time. If I find more information, I will write to the noble Lord.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has now elapsed.

Trade Bill

Lord Grimstone of Boscobel Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I am very grateful to the noble Lord, Lord Purvis, for putting forward this amendment. We should also be grateful to other colleagues in the Chamber for asking key questions on this.

Bad trade deals produce clear winners and losers. Surely our task is to make sure that British businesses, including those in Northern Ireland, do not lose out in trade agreements and face unnecessary costs. British businesses have faced an incredibly tough year; the pandemic in particular has seriously impacted on UK trade. We have seen big falls in exports and imports in the three months following April 2020; the ONS found that trade exports fell by £33.1 billion in those three months, while imports fell by £29.9 billion. These were the largest three-monthly falls since comparable records began in 1997. Trade will be vital for businesses in the post-Covid recovery period. The Government should make sure that businesses do not face unnecessary costs arising from trade agreements.

I am glad that the Minister has said previously that the Government have committed to publish their negotiating objectives alongside an initial impact assessment. Can he confirm that a full impact assessment for each agreement will be published by the Government at the end of negotiations? Will this full impact assessment be reviewed by an independent body? Will the Government act on any findings that come as a by-product of the review?

There are clearly major problems for Northern Ireland. Does the Minister expect different costs for businesses exporting or importing goods and services to or from Northern Ireland to result from an EU-UK FTA and any rollover agreement for the Japan agreement? Other businesses in the rest of the UK will clearly be affected by this.

The amendment’s explanatory note also refers to additional costs to businesses operating within the UK’s internal market. Labour firmly believes that there is a need for a strong internal market so that businesses can trade freely across the UK’s four nations, which will be vital for our economy and shared prosperity. This will be discussed at length in the Internal Market Bill, which has some important implications for this Bill.

I hope that the Minister is following these debates closely. I hope that we can be reassured that the impact assessments will be transparently conducted and published, and that the Government will take note of their findings. Rather like the noble Baroness, Lady Noakes, I accept that there are costs both ways, but we need transparency. That transparency will enable our businesses to trade better, more freely and more competitively.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I welcome this amendment, put down by the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Suttie. As I told the House on the first day of Committee, and as we have touched on since, our continuity agreements seek to replicate the effects of EU agreements, and the 21 agreements that we have already signed show that we are not diverging or introducing new obligations. These agreements are continuity by name and continuity by nature. We therefore do not think it proportionate to produce impact assessments for trade deals that only maintain the status quo. I emphasise that point because I will come to other free trade agreements later.

This is not to say that we intend to deny Parliament information on these agreements. That is why the parliamentary reports that we have committed to publish alongside signed agreements contain detailed information about the volume of trade, the composition of imports and exports, and the wider economic impact of those agreements. As I have said, we will continue to lay these parliamentary reports voluntarily, with Explanatory Memoranda, alongside each new continuity agreement. The recently signed new agreement with Ukraine will of course be treated in that way.

New FTAs are not included in the scope of the Bill—neither are the EU arrangements—but we have committed to publishing in advance of opening negotiations initial economic scoping assessments for the new FTAs setting out what impact we believe the agreements might have. At the end of negotiations, we will produce an impact assessment for the final treaty, alongside an Explanatory Memorandum, prior to it being laid before Parliament for scrutiny under CRaG. The Government believe that this strikes the right balance.

The noble Baroness, Lady McIntosh, and the noble Lord, Lord Bassam, asked what kind of independent assessment will be made of these assessments. I am pleased to say that those assessments will be made by the Regulatory Policy Committee. I can also let the House know that the International Agreements Sub-Committee has already received these assessments in relation to the Japan FTA, which we signed a few weeks ago. These agreements and reports have been made available to the IAC on a confidential basis. We committed that the committee would have these agreements to review in good time before the CRaG process started; I am pleased to say that I had a good meeting with the IAC yesterday where we talked through these processes. I look forward to receiving its report in due course.

The noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Suttie, asked various questions relating to trade with the EU, particularly on customs arrangements and other contingency arrangements, including Northern Ireland matters that will arise at the end of the transition period. If I may, I will write to the noble Lord and the noble Baroness on these matters.

Given these reassurances, I ask the noble Lord to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

I have received no requests to speak after the Minister, so I call the noble Lord, Lord Purvis.

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

My Lords, we have had yet another interesting debate where the expertise of noble Lords has been on full display, even if that meant repeating what have perhaps become familiar arguments.

Amendments 54 and 55 in the names of my noble friend Lady McIntosh of Pickering, and the noble Baronesses, Lady Henig, Lady Ritchie of Downpatrick, and Lady Jones of Moulsecoomb, would set up a new trade body, the international trade commission. This body would be responsible for setting criteria for assessing whether provisions in FTAs on imports of goods into the UK meet or exceed domestic standards of production and would, as a result, set restrictions for which goods could be imported under trade agreements. The other place has debated whether imports would need to meet our domestic production standards—a requirement which would be in addition to meeting existing specifications such as on food safety standards—and decisively rejected such a suggestion.

The Government absolutely recognise the strength of feeling around standards and imports of agricultural products into the UK. We have not only reaffirmed our commitment to maintaining high standards during debates on both this and the Agriculture Bill, and on many other occasions, but have taken clear action. I hope to explain this in more detail shortly. However, I first ask your Lordships to consider the real effect of Amendment 54. It would establish a new, permanent and unelected body, which would set criteria for assessing and scrutinising international trade agreements before they could be laid in Parliament.

The Government consider that this would be inappropriate and harmful to the due process of parliamentary scrutiny—a process which already includes an assessment of the impacts of the trade agreement and allows time for both the International Agreements Sub-Committee of our House, and the International Trade Committee in the other place to produce an independent report on it. The amendment would suspend parliamentary scrutiny of new trade agreements until this new body had been established and the criteria set. I believe that this would harm the interests of UK businesses and consumers. Importantly, it would also leave Parliament beholden to the terms set by the international trade commission. Moreover, the establishment of such a body would place it in direct conflict with existing bodies, which already have the remit and expertise to oversee and advise on standards, such as the food standards agencies, the trade advisory groups and the new Office for Environmental Protection. The creation of an international trade commission would only cause confusion with these trusted agencies, to the detriment of all. Furthermore, the amendment would require overseas countries to produce—and demonstrate that they produce—to UK standards before we would be able to import those goods. As I said, the criteria for such assessment would rest in the hands of a new, untested and unelected trade body.

Currently, the UK imports enormous volumes of food from overseas, including from the developing world. An amendment such as this could have far-reaching and, I am sure, unintended effects, preventing the UK being able to import a range of foods, with significant knock-on effects for supply chains, businesses and consumers within the UK, as well as, importantly, for developing countries and other export partners, which send agricultural products to the UK. For example, Vietnam, Ghana and Indonesia are major exporters of coffee to the UK, and we receive large volumes of bananas from countries such as the Dominican Republic, Belize and Cameroon. The impact of this amendment, requiring countries to meet the UK’s specific standards across a range of criteria, could ultimately prohibit imports from these trade partners and, in doing so, lose a valuable income stream for those developing countries as well as, frankly, affecting the British businesses and consumers who depend on them. My noble friend Lord Lansley made some powerful points in this regard about the damage that this would cause.

The standards that this amendment seeks to protect are already enshrined in domestic statute and the Government will uphold them. Of course, any changes to existing standards would require new legislation to be scrutinised by Parliament. Decisions around standards are a matter for Parliament and will be made separately from negotiations. I hope that the noble Lord, Lord Purvis, will agree with me, even as a new boy, that statutory instruments are a statutory process.

The Government have taken decisive action to uphold our commitments to high standards. First, we have established new trade advisory groups, including a dedicated agrifood group, which will provide technical and strategic expertise that will feed directly into negotiations. Members include such organisations as the Agriculture and Horticulture Development Board, the British Retail Consortium, the British Beer and Pub Association, the Scottish Seafood Association, UK Hospitality and Tesco, among others. I hope that the noble Baroness, Lady Henig, will accept that it would be highly prejudicial to the United Kingdom if our negotiating stance became public when we are in the middle of negotiations. We want to draw on the expertise of the members of these groups during negotiations. This is not secrecy for secrecy’s sake but common sense in asking them to keep confidential the information they receive from their privileged position in these groups.

In June, the Secretary of State for International Trade established the Trade and Agriculture Commission, which brings together stakeholders from across the sector to provide recommendations that will inform the Government’s decisions and policy-making in relation to agriculture. The commission will produce a report with its recommendations and the Government have committed to laying this before Parliament. My noble friend Lady McIntosh of Pickering asked about the resources available to the commission; sadly, I do not have this information to hand but I will write to her.

The recommendations made in the Dimbleby report are under consideration by Defra and will no doubt be responded to by my colleagues there in due course; as my noble friend Lady Noakes reminded us, this report has not yet been finalised. Furthermore, we have listened to concerns around animal welfare in production and have committed to a rapid examination of what can be done through labelling to promote standards and high welfare across the UK.

Our various new initiatives and the setting up of new groups for exploring issues around standards and international trade policy are already looking to tackle some of the issues raised by this amendment. I would, of course, be very happy to meet the noble Lord, Lord Stevenson, to discuss these matters further. In summary, however, we consider that the creation of a further new body would risk harmful conflict with existing groups with similar functions. I hope that I have managed to reassure my noble friend and other noble Lords that there is no need for the body they propose. I therefore ask that the amendment is withdrawn.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

My Lords, I have received requests to speak after the Minister from the noble Lords, Lord Lansley, and Lord Purvis of Tweed. I call the noble Lord, Lord Lansley.

[Lord Lansley (Con)]

I am grateful to my noble friend for his response to the debate. I want to make one point. I fear that the noble Lord, Lord Purvis of Tweed, may not have understood my point about the unilateral scheme of preferences in developing countries. It was simply that, since Amendment 54 bites only on those international trade agreements that are subject to the CRaG process, it would not bite on the unilateral scheme of preferences at all. So, it does not do what the mover of the amendment is looking for it to do; when they look again on Report, noble Lords should—as the noble Lord, Lord Stevenson of Balmacara, suggested —take it away and think about how they can support the Government to maintain and deliver our standards, rather than seek to go around them.

[Lord Grimstone of Boscobel (Con)]

My Lords, I have nothing to add to those perceptive comments from my noble friend.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the clarification from the noble Lord, Lord Lansley. I think that we will come back to this issue.

The Minister referred to Ghana as a good example. I referenced Ghana in the previous debate. We are still engaging on whether we will have a continuity agreement with it; it has not been agreed yet. The disruption in trade with Ghana will come if we revert to a non-EPA basis at the end of the year, rather than from anything to do with anything in this amendment regarding standards.

Can the Minister state whether we currently import, or will import, any goods from GSP countries or LDCs that do not meet our standards? My understanding is that we do not and will not. We offer them tariffs that are preferential to those for other countries if they have goods to be imported into the UK that meet the standards, because that is under the unilateral trade preferences scheme, but it is not standards that we seek to reduce. The Minister said that insisting on maintaining UK standards would somehow act against least-developed countries, but that does not apply because they do not currently export to us if they do not meet our domestic standards. I wonder whether he can clarify that.

Given that, yesterday, the Agriculture Minister did not categorically shut down the requests from MPs that the Trade and Agriculture Commission’s life be extended and sent over to the DIT, is the Minister’s mind open to the longevity of this Trade and Agriculture Commission? One of the ways forward could conceivably be to extend the lifetime of that commission; we could progress on that basis.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his question. We will come to GSPs in a later debate; if the perceptive points he made are not answered then, I will perhaps write to him. Secondly, I always keep an open mind about the matters that we debate. We will reflect on the debate that happened in the other place last night.

[Baroness McIntosh of Pickering (Con)]

I am grateful to those noble Lords who contributed. I would be most grateful if my noble friend could extend his invitation to the noble Lord, Lord Stevenson, to myself and the other co-signatories of this amendment, and perhaps also invite the noble Lord, Lord Purvis. This formula worked extremely well with his predecessor, the noble Baroness, Lady Fairhead, who I am sure would commend it to us.

I suspected, even though I raised this in the House yesterday, that my noble friend would not have the figures on the Trade and Agriculture Commission’s budget. He will be pleased to know that I have the topical Oral Question on Thursday, when I am sure he will be able to provide those figures because they are the subject of the Question.

The International Trade Secretary herself referred to Kenya as a wonderful new country that we are going to do deals with. It subsequently found itself in a spot of bother with avocado pears; we will certainly wish to revisit that.

I do not think that any of the signatories to these amendments intend to tie the Government’s hands; indeed, I do not. The purpose of the amendments was to understand the thinking on the role of, and resources available to, the current Trade and Agriculture Commission. I have no doubt that current members of the commission do not wish to carry on, so this is an opportunity to either reappoint new members to the Trade and Agriculture Commission or revamp it into a new body, such as the one in the US calling itself an International Trade Commission.

--- Later in debate ---

[Lord Bassam of Brighton (Lab) [V]]

My Lords, we should be grateful to the noble Lord, Lord Lansley, for his amendment on trade promotion and strategies. It has stimulated an interesting debate. It is interesting to me because it provides me with the an opportunity of agreeing, for once, with the noble Baroness, Lady Noakes, about the need to make any trade promotion strategy government-wide, which goes without saying. It is also interesting because the noble Baroness, Lady McIntosh, mentioned the trade in pigs, our influence on China and how we might learn from its ability to market pigs’ trotters. It is some years since I consumed a pig’s trotter, but the thought of it fills me with great joy.

As has been mentioned throughout these debates, trade offers many benefits to UK businesses and will play a vital role in our post-Covid recovery. The Government must make sure that when they sign trade deals those benefits are shared across SMEs and large companies, as well as different regional groupings.

The amendment usefully refers to trade and export strategies, and I shall pick up a few points on the Government’s approach, especially their export strategy. Their stated ambition is to increase exports from 30% to 35% of GDP, with the Department for International Trade and UK Export Finance playing a key part in achieving that goal. Their previous ambition of increasing exports to £1 trillion by 2020 was not achieved. The National Audit Office has criticised the evidence underlying the strategy to increase exports to 35% of GDP and has said that it is not clear how stretching such an ambition is and that the timetable in which the target is expected to be achieved is not clear. The Public Accounts Committee has also said that it is unclear how the DIT’s work is well-linked to the Government’s export strategy ambition.

I have questions for the Minister. How and when will the Government achieve their 35% target? How are the overseas networks of DIT and UKEF staff working closely together to avoid missing export opportunities? The Federation of Small Businesses supports the 35% target but would welcome a grant scheme to support smaller businesses in particular—which is where we look for growth—looking to invest in new export processes. Are the Government giving that active consideration? It goes without saying that we need a strategy that actively promotes trade internationally in these new times, as the noble Lord, Lord Purvis, called them, as we find our way in the new world free of the EU. We must have that strategy in place, and this debate has highlighted that. Colleagues have brought into it the valuable experience, knowledge and insight that they gained from the all-party parliamentary group.

The Minister in the other place has said that he is developing a new export strategy. What is it to be and when will it be published? Can we have more debate on it and can the House expect to have regular updates and reports based on it?

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank my noble friend Lord Lansley for his amendment and his wise words in his introduction, honed by his years of experience.

As discussed when I met my noble friend to speak about this amendment, international trade agreements are not worth the paper they are written on if businesses and consumers are not educated and enabled to take advantage of their contents. I also fully agree with the noble Lord, Lord Purvis, about the need to operationalise those agreements. He and I were in complete agreement when we discussed this. I therefore agree that it is right that the Government should regularly review the benefits realised through the measures adopted for the international trade agreements they negotiate and the trade and export promotion strategies that they deploy. The strategies are vital, and I and all my ministerial colleagues in the department are well-seized of this.

The new all-party parliamentary group for trade and export promotion is an important development, and I am pleased to thoroughly endorse it. The energy of the noble Viscount, Lord Waverley, as co-chair, and its eminent sponsors will surely lead to its success.

Coming to the substance of the amendment, I hope that my noble friend will be pleased to hear that my department already has plans to publish such a report every two years. I hope that noble Lords will appreciate that the two-year period is appropriate because to do so more regularly would be overly burdensome for the department to pull together and would provide insufficient time to monitor the benefits realised. I assure noble Lords that the fact that the period is two years rather than one year in no way means that we do not agree on the importance of this topic.

The noble Lord, Lord Purvis, referred to the trade access programme. I am well aware from my contacts with SMEs how valuable many of them find it, and I will write to give him an update on its present stature.

I can assure the noble Lord, Lord Bassam, that we are fully seized of the points he makes and that my domestic and international colleagues work closely together on this. If at any time a conversation with me or my ministerial colleagues would help him, we would be happy to have one.

I hope that my noble friend Lord Lansley is reassured that the Government share the objective behind his amendment and that our proposal for a biannual report meets it in a proportionate way. Consequently, I ask that the amendment be withdrawn.

[Lord Lansley (Con)]

I am most grateful to the Minister for his response and to all those who took part in the debate. Everyone expressed their views in a positive way, and there was widespread support for the amendment’s objectives. I particularly thank my noble friend for his support for the objectives of the all-party parliamentary group. We look forward to working with him, his ministerial colleagues and officials in trying to ensure that we engage fully, not only here in Parliament but with the business community, in making that happen.

I was grateful to the noble Lord, Lord Bassam, not least for referring to the Federation of Small Businesses. In the report it published earlier in the year relating to SMEs and more recently when Make UK published its report on exports, it was abundantly clear how important it will be for us as a country to bring small and medium-sized businesses into export markets, not only in Europe, to which many have been accustomed, but beyond it. Thirty years ago, I set up an active exporting scheme through the British Chambers of Commerce that mentored small businesses to help them get into exporting activity. I hope that we can look at schemes of that kind because it is important to make that happen.

It was a very interesting debate about the nature of reports. I gently say to my noble friend Lady Noakes that the amendment refers to “the Secretary of State” because “the Secretary of State” is every Secretary of State, not just the Secretary of State for International Trade—so it can within the amendment be a cross-governmental report.

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

My Lords, I add my thanks to the noble Lord, Lord Alton, for his amendment and his excellent speech, which said everything that needs to be said around this very difficult area, with considerable skill and a huge amount of information that we will need time to absorb.

The House seems united in the view that this is a serious issue that has a lot of support and needs to be implemented. I will be interested to hear how the Minister responds to it. What is most attractive about the amendment is the innovative use of the courts as a way of trying to give a point of factual accuracy around which decisions can be taken. I have not seen this before; it is not something that we have ever had proposed and it is worthy of further consideration. Indeed, it may have wider applications.

That puts the House in a bit of a spot. If it is clear that there is a way of checking, in a way that is respected in the use of our courts, to assess whether or not an action needs to be taken, are we not put on notice to live up to our responsibilities as signatories to this convention to prevent, protect and punish? Indeed, if we care about our moral values as a nation, we should have no grounds not to support the amendment.

Having said that, I wonder whether it is worth picking up one or two points that suggest that a bit more work on the amendment might make it achieve even more. Others have picked up on the question of why it is applied only to rollover agreements when it has the capacity to deal with all free trade agreements. Although this is a terrible thing to say, why stop at the issue of genocide? Are there not other egregious issues that would need to be considered in the same class as genocide? As my noble and learned kinsman Lord Hope said, the torture convention may well be an opportunity for further thinking around this area.

While I support what has been said today about the proposal and I want to give whatever assistance we can to the movers of the amendment, I suggest that maybe there should be other discussions before we reach Report, because what is said in the amendment goes with the grain of so many other amendments that we have looked at around the question of human rights that it would be good to see if we could find something that brought them all together. We need something that is helpful to the broader causes that the noble Lord, Lord Alton, espouses but is capable of bringing in other issues that other Members of the House also care about.

[Lord Grimstone of Boscobel (Con)]

My Lords, I turn to Amendments 68 and 76A in the name of the noble Lords, Lord Alton of Liverpool, Lord Forsyth of Drumlean and Lord Adonis, and the noble Baroness, Lady Falkner of Margravine, which seek to ensure that any regulations made under Clauses 1 or 2 are revoked in the event that the High Court makes a preliminary determination that they should be revoked because the partner country has committed genocide. I was very thankful for the opportunity to discuss the amendments with the noble Lord, Lord Alton, and my noble friend Lord Blencathra yesterday.

I unequivocally reiterate the Government’s commitment to upholding human rights and opposing genocide in all its forms. It is the British Government’s policy that any judgment on whether genocide has occurred is a matter for judicial decision, rather than for government or non-judicial bodies. Our approach is to seek an end to all such violations of international law and to prevent their further escalation, irrespective of whether these violations fit the definition of specific international crimes. Any determination as to whether war crimes, crimes against humanity or genocide have occurred is a matter for competent courts after consideration of all the evidence available in the context of a credible judicial process.

As your Lordships are aware, the Bill enables the Government to ensure continuity in relation to specific agreements we were party to through our membership of the EU. These agreements met international obligations in respect of human rights and we have maintained, and will continue to maintain, those obligations in the agreements we sign. Should we have any concern about the behaviour of any partner country in relation to human rights abuses, we would take it up with them through the appropriate channels. In continuity agreements —the subject of our deliberations today—there are often suspensive clauses that allow us to suspend agreements in the event of human rights breaches.

We have heard again today, as we did during the debate on Amendment 33, the passion of the noble Lord, Lord Alton of Liverpool. The examples he gave of the Uighur Muslims in China are truly chilling. I understand and share his concerns; the Government condemn any human rights abuses, including the egregious situation in China. As the Foreign Secretary told the Foreign Affairs Committee in the other place on 6 October, this is not something that we can turn away from. The UK Government are playing a leading role in co-ordinating international efforts to hold China to account for these violations and we will continue to do so. We will of course continue to raise these concerns with Chinese officials.

I do not disagree with what the noble Lord, Lord Alton, said about the amendment he and other noble Lords have tabled being within the Bill’s scope. However, and I say this with regret and almost in a sense that I am using bureaucracy to counter the most passionate arguments that we have heard today, Clauses 1 and 2 can be used only to implement the GPA and non-tariff obligations from those continuity agreements we signed as a member of the EU before exit day. China is not a party to the GPA. Additionally, China does not have a free trade agreement with the EU, so Clause 2 cannot be used to implement any future free trade agreement with it.

I am of course very happy to discuss these matters further with the noble Lord, Lord Alton, and the other sponsors of the amendment. I reassure noble Lords that the Government take issues relating to genocide extremely seriously. I hope, for the reasons that I have offered, that the noble Lord will have confidence to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

There are no requests to speak after the Minister, so I call the noble Lord, Lord Alton of Liverpool.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I will address Amendments 71 and 72, tabled by the noble Lords, Lord Clement-Jones and Lord Freyberg. I express my sympathy to the noble Lord, Lord Freyberg, having heard the background to his interest in health data. Before I turn to the detail of these amendments, I hope I made clear on the second day of Committee the Government’s absolute commitment that the NHS is not, and never will be, for sale to the private sector, whether overseas or domestic.

I have heard your Lordships’ concerns that medical data or access to suitable medicines may be affected by our programme of trade agreements. I am pleased to reassure your Lordships that this is not the case. As noble Lords know, the NHS is usually protected through a range of exceptions, exclusions and reservations in trade agreements. The Government will continue to ensure that the same rigorous protections are included in future trade agreements, safeguarding the NHS against the privatisation that we are often accused of plotting. Our published negotiating mandates for the US, Australia and New Zealand make the Government’s commitment to the NHS crystal clear: it is not for sale.

We need the powers in this Bill to provide continuity of trading relationships with existing partners, avoiding disruption for businesses and consumers. Our continuity programme does not seek to change the way in which public services or health services are delivered. None of the 21 agreements we have signed has had any substantive effect on the way in which health services will be provided.

Amendment 71 stipulates that regulations could be made using Clause 2 of the Trade Bill only if they allowed for the scrutiny of medical algorithms, technology or devices with respect to the methodology for the processing of sensitive data. I reassure your Lordships that before any medical device can be placed on the UK market, it must have been assessed as complying with the Medical Devices Regulations 2002. These regulations cannot be superseded by a trade negotiation without further legislation.

The MHRA is the designated competent authority that administers and enforces the law on medical devices in the UK. At the end of the transition period, the role of the MHRA in the UK will be the same as now. It will retain sovereignty over all aspects of medical device regulation in the UK, regardless of any FTAs agreed. Furthermore, the Government are clear that health and care data should only ever be used and/or shared where used lawfully, treated with respect, held securely and where the right safeguards are in place. The UK’s high standards of data protection will be maintained in all trade agreements. In other words, these are decisions for Parliament and Parliament alone. Your Lordships, and colleagues in the other place, will have full oversight over continuity agreements through the use of the affirmative procedure for any regulations made relating to medical devices.

I turn to Amendment 72. This stipulates that regulations could be made using Clause 2 of the Trade Bill only if they do not restrict our ability to process and manage patient, public health and social care data, and if they contain an explicit exclusion of investor-state dispute settlement for access to medical data. No trade agreements, whether with continuity partners or new FTAs, will affect our ability to decide which services involve private providers. The Government are acutely aware of the strength of feeling on these issues in this House and of our colleagues in the other place. I repeat: the NHS is not, and never will be, on the table, not least because your Lordships would not allow it.

I agree with the noble Lord, Lord Clement-Jones, that it is absolutely crucial that data is always protected to the highest standards, including when the NHS enters into partnerships with research and commercial organisations. NHS organisations must continue to meet the highest standards of transparency and accountability and ensure that partnerships have explicit benefits to patients and people in the UK. Decisions made about the use of health and care data will prioritise patient and public benefit and ensure that data is kept safely and securely.

As I have said before, none of the 21 agreements we have signed makes any provision for investor-state dispute settlement in the UK. However, because our signed agreements do not have explicit exclusions relating to ISDS for patient data, this amendment would force us to return to negotiations with all 21 partners and seek the introduction of this exclusion. This cannot be a proportionate step.

I have confirmed to your Lordships that our health service will be protected through trade negotiations. However, the Medicines and Medical Devices Bill, which will also progress through Committee in this House in the coming weeks, may be a suitable vehicle if your Lordships consider that further reassurances on this technical subject are required. I would be happy to facilitate a conversation to that effect if it would be helpful.

I hope that these reassurances will give your Lordships confidence that the NHS will not be harmed by our trade agreements and that the amendment can therefore be withdrawn.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I have received no requests to speak after the Minister so I call the noble Lord, Lord Freyberg.

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[Lord Bassam of Brighton (Lab) [V]]

My Lords, this is an important and valuable group of amendments and I congratulate my colleagues on bringing them forward and providing us with the opportunity to shine a bit more light on the Trade Remedies Authority. Labour believes that the creation of the TRA is necessary and welcome, in principle, once the UK has finally left the EU, so that we can protect domestic industries in our own right, investigate allegations of unfair practices by overseas competitors and seek their resolution via the WTO’s dispute settlement mechanisms.

However, we are also worried that the new Trade Remedies Authority lacks the stakeholder engagement, independence and parliamentary oversight and accountability to ensure that it will operate transparently and fairly when investigating and challenging practices that distort competition against UK producers, in breach of international trade rules. It is no secret that similar concerns were shared by your Lordships’ Constitution Committee, which said that

“it is not clear why … the functions and powers of the Trade Remedies Authority cannot be set out in more detail in this Bill”.

Schedule 4 states that the Secretary of State will appoint the chair of the Trade Remedies Authority, who will in turn appoint the chief executive and non-executive members. This process needs to ensure an independence of thought and action at the TRA. The Secretary of State should not appoint someone just in their own image, or necessarily with the same political leanings and economic opinion. We cannot have an unbalanced TRA that looks only at the approach favoured by the Government. The chair must balance interests in exactly the right way to do these things. Can the Minister therefore explain how independence at the TRA will be guaranteed? Can he explain what parliamentary involvement there will be to ensure that independence and that, whoever the chair is, they receive representations from across industry, employers, the unions, consumer groups, and the devolved nations? How will the TRA ensure a wide membership?

It is clear that we need a functioning TRA and a functioning trade remedies system, but that functioning will be undermined if there is no independence. This group of amendments enables us to focus on that important thing. I must say that I am very much drawn to the constitutional innovation of having confirmation hearings, so that at least questions can be asked by parliamentarians of the process and of those involved.

[Lord Grimstone of Boscobel (Con)]

My Lords, I recognise that the amendments tabled by noble Lords are intended to reinforce the independence and impartiality of the TRA, but I reassure them that this legislation has already been designed with this in mind. Both the Trade Bill and the Taxation (Cross-border Trade) Act have inbuilt protections of the TRA’s impartiality that already address many of these points. I reassure the Committee that we want the TRA to be independent and impartial, because it is the absolute requirement for a body of that sort.

Turning first to Amendment 78, in the name of the noble Baroness, Lady Kramer, it is of course important that the Secretary of State has regard to the operational independence and impartiality of the TRA. But imposing a positive duty may require the Secretary of State to take potentially excessive steps to protect the TRA’s independence, which might prevent her making any requests at all, thereby depriving her of the vital expertise that the TRA holds.

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[Lord Lansley (Con)]

I am grateful. Just for the avoidance of doubt, will my noble friend the Minister agree that it is not without precedent for pre-appointment hearings to take place for appointments made by Ministers? I think that under the Cabinet Office guidance there are about 50 of such. I was not proposing that the chair of the Trade Remedies Authority be included, although, frankly, the fact of it having public impact, being important and being required to be independent would justify including it in that list. Will my noble friend go away and consider whether this appointment should be subject to pre-appointment hearing?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord, Lord Lansley, for that question. I have some skin in this game, because I was the author of the public appointments code in which these requirements appear. I shall certainly consider the point that he has raised and write to him about it, but, frankly, with no great confidence that I will agree with him when I do so.

[Baroness Kramer (LD) [V]]

When the noble Lord, Lord Grimstone, drew up that framework for public appointments, there was no way in which he could have anticipated this role, so I hope that he will look closely at the role of the TRA chair and listen closely to the noble Lord, Lord Lansley.

I was delighted to hear from the Minister that the Secretary of State cannot vary duties recommended by the TRA and cannot, without the TRA’s say-so, impose those duties. I appreciate that clarification.

I smiled at the thought that there might be “excessive steps” to protect the independence and impartiality of the TRA. It is hard to think of anything that would be excessive if it were to support those principles of independence and impartiality, so fundamental are they to the role.

Given the lateness of the hour, I beg leave to withdraw my amendment.

Trade Bill

Lord Grimstone of Boscobel Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[Lord Bassam of Brighton (Lab) [V]]

My Lords, Labour supports the amendments in this group. As we heard, Amendment 28 seeks to reinsert a government amendment made to the previous Trade Bill, which would reduce from five years to three years the period during which the EU FTAs can be rolled over and in which previously rolled-over FTAs can be reamended. Amendment 29 would reinsert another government amendment from last year. If the Government decide to extend the period in which to make regulations under Clause 2, any such period should not be more than three years.

In commentary, I must say that I am surprised that these sunset provisions are not already included. As the noble Lord, Lord Purvis, explained, the Government themselves made the changes last time round. Only last year, they committed to reducing from five years to three years the length of the period in which the implementation power can be used. My argument is simple. Let us put these amendments back in the Bill, so that the Minister can demonstrate the same faith in the department and in the Government as previous Ministers did to complete these rollover agreements in a timely fashion.

What has changed? Why do we face the prospect of not having these rollover periods? What is the problem with having the sunset clause as it is? If it was right last time, surely it must be right this time. I am drawn to sharing the suspicion of the noble Lord, Lord Purvis, that the advent of a larger majority has made the Government think that they do not need these provisions, but that cannot be right either. When this was discussed the last time round, the Government said that the period would be renewable by agreement in both Houses of Parliament and that they were committed to engaging the devolved Administrations in that decision-making process in advance. I hope that those points still stand and I look forward to the Minister confirming that they do, as that seems a sensible way forward, which I am sure would find agreement on all sides of the House.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I will now address Amendments 28, 29, 30 and 32, in the names of the noble Lords, Lord Purvis of Tweed and Lord Bassam of Brighton, and the noble Baroness, Lady Kramer. The amendments would reduce the sunset period from five to three years and reduce the period by which it can be extended also from five to three years.

I am afraid that I have to say to the noble Lords, Lord Purvis and Lord Bassam, and to other noble Lords that, after careful consideration, we believe that the current sunset provisions in the Bill strike the right balance between allowing flexibility for negotiators, the ability to keep agreements operable and providing Parliament with appropriate constraints and scrutiny.

As I have said to noble Lords previously, the Government and I are very aware that at the time of the 2017-19 Trade Bill there was uncertainty and concern from Parliament as to the nature of the Government’s continuity programme. That is why the Government brought forward a number of amendments to the 2017-19 Bill. Noble Lords might be rather bored of hearing me repeat the fact that we have now signed 20 continuity agreements, so they will be pleased to know that, as the noble Lord, Lord Purvis, acknowledged, we have now signed 21. The United Kingdom and Ukraine have signed a political, free trade and strategic partnership agreement, which will help to further strengthen the partnership and serves as a foundation for a deeper strategic political and trading relationship between the UK and Ukraine. Trade between the UK and Ukraine was worth £1.5 billion in 2019 and we are committed to protecting and growing that trade. Signing this agreement will no doubt help us to do that.

We have now signed 21 continuity agreements and expect to make positive progress with remaining continuity agreements before the end of the transition period. Indeed, before this Bill completes its passage through your Lordships’ House, perhaps I will no longer have to say 21 but can come back with a higher number. I am pleased that these agreements have given Parliament more certainty as to the practical effects of the Government’s continuity programme.

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

My Lords, I was delighted to hear from the Minister that a new trade agreement has entered the books. Could he confirm that the same arrangements that apply to the Japan agreement will apply to that agreement in respect of the ability of the International Trade Committee and the EU International Agreements Sub-Committee to have view of the documentation and to make a response to Parliament, should they wish to do so?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that question. The arrangements that we have put in place in discussion with the committees for the Japan free trade agreement relate to the fact that we described it as an enhanced continuity agreement, which is why we have been putting it through enhanced scrutiny compared to other free trade agreements. This latest agreement, the Ukraine free trade agreement, will be scrutinised in the same way as other continuity agreements were previously scrutinised.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for that response to the noble Lord, Lord Stevenson, because I think the Minister—and I hate to say this to him—is wrong. Parliament will not have the ability to scrutinise continuity agreements going forward that it did last time, because the Government have removed the reporting to Parliament on differences.

The Minister has just outlined the Ukraine agreement. I was happy to mention it and pleased to hear the Minister refer to it. If that helps continuity in our trade, I support it strongly, but what the Minister described as the title of the Ukraine agreement is not what we had. As I mentioned before, there were four different criteria or four different categories. We had a deep and comprehensive free trade area with Ukraine, and it does not sound as if we are replicating that. In the past, we had the fact that the Government were bringing forward reports to show any differences between the two. I am not sure if it is in order for the Minister to reply to this, having summed up—I do not think it is—but I am sure I will return to this further on. It might even be on the next group. There are potentially considerable differences and, under the Bill’s proposals, we would see that they are considerably weaker. I hope that the Minister might be able to reflect on that during the course of Committee.

I am grateful for the contribution of the noble Baroness, Lady McIntosh, and can clarify to her that these amendments relate to the sunset clause of the order-making powers. We will come to the TRA elements later on, but she raises good questions that we will discuss under the TRA aspect.

My noble friend Lady Kramer made a strong point.

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The whole purpose of Parliament is scrutiny and the process requires active engagement. The Government are hiding behind the royal prerogative in order to behave like a despotic ruler of ancient times. This debate has once again demonstrated that the status quo on parliamentary scrutiny is just not acceptable to this House, to civic society or to the people of this country. I am sure that we could find a mutually acceptable way forward and I appeal to the Minister to use the time that we will have before Report to find a common, sensible solution and a way forward.

[Lord Grimstone of Boscobel (Con)]

My Lords, the amendments that I will speak to now all relate to the crucial role of parliamentary scrutiny. Having listened carefully to the words of the noble Lord, Lord Stevenson, I believe that, if one puts CRaG and the royal prerogative to one side, we are in much closer agreement about what the role of the House and the committees should be in this matter than people might think.

Before I start, let me answer the question posed by the noble Lord, Lord Purvis, on the Ukraine agreement that we have just signed. The noble Lord researches his interventions so carefully that I fear that he was right and I was wrong, but I am pleased to confirm that we will voluntarily publish a report on Ukraine, highlighting the differences between the agreement that we have signed and the underlying continuity agreement. Also before I start, I thank my noble friend Lady Fairhead for her references to me, which were more than kind. I thank her very much for that.

I begin this grouping with Amendment 35, in the names of the noble Lords, Lord Purvis and Lord Fox. As I said, I believe that the noble Lords and I, along with many of your Lordships, share common ground in so far as we agree that it is important for Parliament to effectively scrutinise the Government’s trade policy and have sufficient information in order to do that. As I have made clear, both at Second Reading and subsequently during our debates in Committee, this Bill primarily concerns continuity for our existing EU free trade agreements, although noble Lords may be pleased to hear that I will not restrict my comments in this debate just to those continuity agreements.

This Bill does not and has never been intended to deal with the scrutiny processes for all our free trade agreements, including those with new partners such as Australia. In formulating our approach to scrutiny of future international trade agreements, we have, of course, rightly and properly, considered the approach of international comparators, including the United States and countries with similar Westminster-style democracies such as New Zealand and Canada. The UK Parliament will be able to conduct scrutiny in a way that is appropriate and proportionate to the UK’s constitutional context and in areas goes beyond that of New Zealand and Australia.

The making of treaties, including international trade agreements, is a function of the Executive held under the royal prerogative. At the same time, it has long been held—and I emphasise that this Government continue to hold—that Parliament should have the opportunity to scrutinise treaties effectively. The Constitutional Reform and Governance Act 2010 confirmed, after a process of consultation, the respective roles of the Government and Parliament in treaty making. The Government will continue to support and facilitate parliamentary scrutiny of treaties under CRaG, including laying the agreement before Parliament for a period of 21 sitting days for full scrutiny. Continuity agreements will—and in many cases have already been—scrutinised through the framework set out in CRaG. Additionally, noble Lords will know that we have voluntarily published parliamentary reports alongside signed continuity agreements, outlining any major changes with the underlying EU agreement. As I said earlier to the noble Lord, Lord Purvis, I can confirm that we will continue to publish these reports for remaining continuity agreements.

I will set out for noble Lords what the Government have committed to in this area, because I believe that we have moved significantly from our original position, having listened to the views shared by colleagues across both Houses. The Government have committed that, before we begin FTA negotiations, we will publish our negotiating objectives, alongside a response to the public consultation, and an initial economic assessment. In response to the point made by the noble Baroness, Lady Smith, this is the mandate that we give our negotiators and it is covered by the royal prerogative. I understand that the noble Baroness finds this old-fashioned, but that is the way our constitution works. I was pleased that my noble friend Lady Noakes spoke in confirmation of this.

This has already been undertaken for our negotiations with the US, Japan, Australia and New Zealand. In its most recent report, the EU International Agreements Sub-Committee praised the Government’s approach to pre-negotiation information sharing, stating that these publications had been helpful in initiating its scrutiny work. We feel that we have nothing to hide in this area. In addition, the Government have committed to keeping Parliament updated on the progress of negotiations. We have done this throughout current new FTA negotiations, with I and my fellow Trade Ministers having met with a large number of colleagues to update on progress and discuss trade policy issues. I have always been keen—and have held round tables and briefing sessions—whenever there have been new developments to discuss. I can absolutely confirm that throughout, we have engaged and will continue to engage, closely with the EU International Agreements Sub-Committee—the IAC—in your Lordships’ House and the International Trade Committee in the other place. I have taken steps in my department to ensure that we treat the IAC absolutely on all fours with the ITC, which clearly should be the appropriate way that we interact with your Lordships’ committee.

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[Lord Grimstone of Boscobel (Con)]

It must have been hard enough following my remarks without a break, so I hope that noble Lords do not find it even harder now.

Once an FTA has been negotiated, it will need to be implemented and ratified. I remind the Committee that free trade agreements cannot of themselves change domestic law. If changes to legislation are required, Parliament will have the opportunity to scrutinise and approve them in the normal way. I hope that this demonstrates that the Government are committed to Parliament being able to scrutinise future trade agreements. I will amplify these comments in a moment.

Regarding the devolved Administrations, international relations, including the negotiation of free trade agreements, are a reserved matter under the devolution settlements. The suggestion made by the noble Baroness, Lady Finlay, about giving the DAs a formal role would not therefore be appropriate, but as we heard from my noble friend Lord Younger, there are many points of contact between the DAs and the Government on these matters. The UK Government will therefore be acting on behalf of the whole of the UK in free trade agreement negotiations, and our overall principle is to ensure that all parts of the UK benefit from any deal. As a reserved matter, it would not be appropriate to give the devolved Administrations a statutory role, as opposed to an informal role, in international trade negotiations.

Of course, the UK Government recognise that modern trade deals cover an increasingly wide scope and interact with areas of devolved competence. As such, we recognise that the devolved Administrations have an interest in international trade policy and DIT works closely with them to deliver policy that reflects the interests of all parts of the UK. In recognition of the importance of this relationship, we have recently launched a new ministerial forum for trade with the devolved Administrations. This has already met to discuss our approach to FTA negotiations and will meet regularly as negotiations progress.

In line with our commitment, the Government have already published an initial economic assessment for each of the new FTAs we are currently negotiating. Once negotiations have concluded, we will publish an updated assessment based on what has been negotiated. This will be presented to Parliament alongside the final treaty text and an Explanatory Memorandum to aid parliamentarians in their scrutiny role, in addition to the CRaG procedure.

As I have set out, this Bill is not about free trade agreements with countries that the EU did not have an agreement with before 31 January 2020, but, none the less, I trust I have reassured the Committee that the Government are committed to a transparent trade policy and to engaging with Parliament.

Next, I would like to address Amendment 36, which is also in the names of the noble Lords, Lord Purvis and Lord Fox. Noble Lords will be aware that despite the previous Bill falling, we have committed to and are delivering on publishing these parliamentary reports on a voluntary basis to assist noble Lords with the scrutiny of agreements. We have provided this additional scrutiny, over and above the statutory framework set out in CRaG, in response to the genuine concerns raised by noble Lords.

While it is of course true that we have not carried forward the amendment from the previous Bill, we have not done so because it is unnecessary. We have adhered to the commitment we gave, as our record demonstrates. We have not required a legislative commitment to see the benefit of these parliamentary reports, which have been invaluable in assisting noble Lords with the scrutiny of continuity agreements. Again, I can confirm that we will continue to publish reports for all continuity agreements yet to be signed.

Turning specifically to Amendment 37, we fully intend to publish parliamentary reports alongside agreements as they are signed. I hope that noble Lords will judge us by our record and accept our commitment—including my personal commitment—in this area.

With regard to Amendment 38, in Committee in the other place, my colleague, the Minister of State for Trade Policy, made the astute comment that

“trade negotiations … have a habit of going down to the wire.”—[Official Report, Commons, Trade Bill Committee, 23/6/20; col. 199.]

The eminent businesspeople and negotiators in this House do not need to be reminded of that fact. Thus, it is possible that we may sign a continuity agreement very shortly before the transition period ends. This may make it difficult to leave a period of 10 sitting days before any SIs are brought forward if we are to avoid a cliff edge in trading relationships with the country in question. However, I assure your Lordships that we will leave as much time as possible for parliamentary scrutiny before regulations are brought forward. Of course, CRaG allows a period of 21 sitting days for agreements to be scrutinised in Parliament before they can be formally ratified, which—I hope and believe—provides an effective period of time for parliamentarians to scrutinise agreements.

Moving to Amendment 41, while the command paper was published under the previous Administration —since then, of course, we have had a general election and secured our exit from the European Union—I hope that noble Lords will recognise that this Government have continued to give Parliament further opportunities to scrutinise our trade agenda effectively. This Government remain committed to the key principles of transparency and ensuring effective scrutiny of our trade policy. That is why we have made our own commitments, which I outlined in reference to Amendment 35. Noble Lords will notice that those commitments repeat many of the commitments made in the 2019 command paper.

The noble and learned Lord, Lord Goldsmith, spoke about the role of the committee that he ably chairs: the IAC. I carefully read its report on working practice, and I must say that I found it in the main sensible and pragmatic. I commit that we want to work pragmatically with the IAC going forward so that it can do the job that Parliament has asked it to do. The noble and learned Lord asked for my views on the IAC’s report, given that I was not the responding Minister during the Lords debates on it. As he knows, I welcome his committee’s vital scrutiny work. Frankly, I also welcome the praise specifically for my department’s working practices, which the committee, in its wisdom, advised other departments to follow.

On the point made by my noble friend Lady Fairhead, the noble Earl, Lord Sandwich, and the noble Lord, Lord Stevenson, we are not just standing still on this. I reassure noble Lords that we are in active discussions with the ITC and the IAC to ensure that we can work together to ensure satisfactory progress for the scrutiny of FTAs. I hope that those discussions will lead to a pragmatic approach that both committees will welcome.

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[Lord Lansley (Con)]

My Lords, I am very grateful to the Minister but I would like to add one point that arises from what my noble friend Lady Noakes said. It is important that we recognise precisely how the CRaG process works. The Government do not require a positive Motion from the House of Commons to ratify a treaty. However, if the House of Commons has voted that a treaty not be ratified, the Government cannot then proceed to ratify it. The Government can ask the question again as many times as they like, but they cannot ratify it if the Commons has said that they should not. That is why it is such an important issue that, if the House of Commons has received a report from a relevant committee saying that it should consider such a treaty, in my view that debate has to take place before ratification can happen. Legally, however, the Government can use their power to control the timetable and avoid a debate, the period of 21 days can expire, and the Government can ratify. That is the legal position. If the Government have a requirement of urgency, under Section 22 of the CRaG the Government can lay a Statement saying, “This treaty must be ratified”, but that must be apparent right at the outset and not become something to which the Government resort because they wish to avoid a critical Motion in the House of Commons.

We will have to come back to this on Report—we will have to—because there is a risk. It is a small risk, and not something that the Government have been guilty of, but as Angus MacNeil, the Chair of the International Trade Committee in the other place, said a couple of years ago, one has to look at this legislation on the basis, perhaps, that—he said it a couple of years ago—Jeremy Corbyn were Prime Minister. Would we want him to have this power? Therefore, let us just make sure that we think about this, and I invite the Minister also to think about it in the intervening period.

[Lord Grimstone of Boscobel (Con)]

I thank my noble friend and I will certainly think about it. The comments he makes are perfectly rational. It is not for me to impinge on the prerogative of the Leader of the House and the usual channels to debate on whether time should be found. Of course, in a rational world, one would expect time to be found to debate a matter as important as that. I will consider his comments carefully.

[Lord Lansley (Con)]

I have been leader of the House.

[Baroness Finlay of Llandaff (CB)]

My Lords, I realise that I should have declared at the outset that I am on the committee advising the Welsh Government, at their request, as we proceed through Brexit. I asked to come in after the Minister to correct the assertion made by the noble Baroness, Lady Noakes. I want to point out that supporting this group—and particularly Amendment 57—is not a last-ditch anti-Brexit move: it is because we have devolved competencies that are deeply affected. Sadly, the Government have not seemed to be adequately discussing with, consulting or bringing into confidence the Welsh Government. Wales voted for Brexit and is unionist. It feels as if the Government have been short-sighted to see the Government in Wales as somehow a cloaked enemy who cannot be trusted to keep confidentiality. The Welsh Government know only too well that the future of Wales depends on these trade agreements and that compromises will need to be made for the future welfare overall, and they respect the vote cast by the people of Wales.

The noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Fairhead, highlighted many strong points within the amendments, and we must find a way forward. There is a need to bring the devolved Administrations into the inner circle in negotiating if the good of the whole UK is to be achieved. I ask the Minister to please consider that.

[Lord Grimstone of Boscobel (Con)]

I have noted carefully the noble Baroness’s comments. I am sure that both I and other Committee members will consider them carefully.

[Lord Grantchester (Lab)]

I have one more small point. The Minister’s reply to the question of CRaG and how it applies to continuity agreements did not really reflect on the remarks of the noble Lord, Lord Lansley, regarding TRQs, as they go wider than just the Japan deal. The status quo underlying EU agreements and continuity agreements cannot really ignore TRQs and any outcomes. Can the Minister respond more fully on TRQs and their differences and how they are reported on under the CRaG process?

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his question. I will write to him and place a copy of my reply in the Library.

[Lord Purvis of Tweed (LD)]

My Lords, I thank all noble colleagues for taking part in this debate and the Minister for giving a comprehensive response. If we could legislate to guarantee a rational world, there would be unanimous support for it in the Committee. However, we will have to reflect on where we have got to whereas the noble Lord, Lord Lansley, and others such as myself who welcome what the Government are doing voluntarily, think that it should be the basis of a future statutory framework. I do not impugn the integrity of the Minister or his word, as I did not with the noble Baroness, Lady Fairhead, who spoke so well in this debate. It is very nice to see her making a speech. I am glad that the noble Lord, Lord Stevenson, apologised if he had caused her tears because that means I do not have to—I thought it was me. I hope the fact that I have been citing her quite a lot does not give her more discomfort on trade issues.

While we do not impugn the integrity of Ministers, we want a sustainable mechanism. The noble Lord, Lord Lansley, referenced the attempts in the House of Commons and he is absolutely right that my Amendment 35 started with Jonathan Djanogly MP. I had very good discussions with him but the reason I did not lead on that is that I did not want people to think it was simply a cheeky initiative. It was an initiative by six Conservative MPs in the House of Commons but I think it has genuine cross-party feeling behind it.

I am glad that the Minister gave a reassurance about the report that will come on the Ukrainian deal and on all others, going forward. I am still perplexed as to why the Minister is comfortable giving the assurance that all subsequent agreements will have a report, yet the Government do not want to reinstate an amendment which would guarantee that. We will just have to reflect on that.

The noble Lord, Lord Lansley, and the noble Baroness, Lady McIntosh, made an important point on timing and certainty and I was grateful to her for giving the example. The noble Baroness, Lady Fairhead, will remember the debate that I activated through the CRaG process because the Government had chosen not to bring a debate to the House of Lords. I activated one on the Faroe Islands and the Minister admitted, very graciously, that there could be improvements on consultation because, on a fisheries deal with the Faroe Islands, there had been no consultation with Scottish Ministers. That was quite breath-taking but the fact is that it happened and was corrected, so we were able to move on. It helps that there have been examples of this.

The next point was made by the noble Baroness, Lady Noakes, and I want to address it. My noble friend Lady Smith related the fact that the noble Baroness, Lady Noakes, think some of us are just animals with insatiable appetites to get more and more powers. I am just a wee timorous beastie here; I am just trying to do my best. I am not threatening or insatiable, or anything, but I am glad that she mentioned the Constitution Committee report. I took part in that debate and read the committee’s conclusions. The noble Baroness is right that paragraph 76 of the report said that the committee did not argue for Parliament to have a resolution on the negotiating objectives on any treaties. That is one point. However, she did not state the rest of this paragraph—I hope, Minister, that this is accurate research—but I can quote it. It said that

“for significant or controversial treaties, the Government will want to ensure that it has the support of Parliament at the outset of negotiations in order to secure ratification to the final text of the agreement.”

Now, we are in the realms of how that is done: either through informed consultation and debate, or through having a resolution on objectives in order for the Government to consider their mandate to then be stronger because it has parliamentary backing. That is the area that I am in.

That report was on all treaties. Jack Straw was referring to some of the sensitivities with Spain over the treaty of Utrecht. We consider a huge range of treaties, from relatively minor ones through to nuclear non-proliferation. But, as indicated by the noble Baroness, Lady Jones, and others, there is consensus that deep and comprehensive trade agreements go far beyond simple tariffs and quotas. They will impinge on consequential domestic legislation, and therefore this is justified.

That is why I am so glad that the noble Baroness, Lady Finlay of Llandaff, came back to the Minister. It is why Canada, for example—which the Minister referred to—has a federal-provincial committee on trade and a federal-provincial committee designated to agriculture, for example. The provinces are involved. They have a formal role and there have been federal state clauses in treaties that Canada argued for. Canada has a dualist system, as we do. Australia has a treaties council with the Prime Minister, the chief Ministers and the state premiers, if it wishes to activate it. The Minister sought to respond to my comments on Japan. I am glad he did, but he did not—and I am happy to be corrected—deny that Japan will have a vote in both houses of the Diet on the agreement to authorise the formal signatures.

Ultimately, the Minister asked me whether I am happy that the Government have gone above and beyond CRaG. Yes, I am delighted. I want it not to be, as the noble Lord, Lord Lansley, said, at the discretion of Ministers or for us to allow Ministers to decide whether it is appropriate. Going beyond CRaG once means that it is harder not to do it, and I am pleased about that, but for it to pass the Jeremy Corbyn test, or even the Jeremy Purvis test, I hope to have some kind of discussion on a framework.

Finally, the noble Lord, Lord Stevenson of Balmacara, referred to the fact that my amendment went through the House of Commons. There was a vote on it. The Government also chose not to progress the amendment in his name. We will reflect on this before Report, but I warn the Minister that there has been sufficient support for putting mechanisms that go beyond CRaG on the statute book to warrant this coming back on Report. In the meantime, I beg leave to withdraw Amendment 35.

Trade Bill

Lord Grimstone of Boscobel Excerpts

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

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, it has certainly been an erudite and extraordinarily interesting debate, and I congratulate all noble Lords who have taken part in it. I certainly understand the point made by the noble Baroness, Lady Chakrabarti, that it is right and proper that noble Lords should be allowed a free rein in debating these matters, and I entirely recognise the legal competence that we have in this House, which has been displayed to such great effect in the Grand Committee today.

Your Lordships might expect me to start off, as I always do, by saying that this Trade Bill does not deal with the implementation of FTAs with new partners, such as the USA or Australia. Instead, as noble Lords are no doubt tired of hearing me say, the Trade Bill provides powers to implement those trade agreements to which the EU and third countries were already signatories before we left the EU. I will come back later to the points that noble Lords have raised about the status of ISDS in those agreements.

Having said that, of course I understand completely the concerns that have been raised about ISDS, but I believe that these may be overstated. Perhaps I may be allowed a couple of minutes to try to elaborate this argument. We have heard that the UK has never faced an ISDS claim before an arbitral tribunal; nor has the threat of an ISDS claim affected our legislation. We are clear that the UK and treaty partners retain the right to regulate in the public interest, and this is already recognised under international law.

Before going into the detail of the amendments, which, understandably perhaps, focus on foreign investors in the UK, it is important that we remember that there are two sides to ISDS. It would not be right to let go unremarked the great benefit that UK investors overseas obtain from ISDS. Arguably, the benefit that our investors overseas obtain from ISDS is, for reasons that I will come to later, significantly greater than the benefits that overseas investors obtain in the UK.

We should not forget that ISDS disputes generally arise when private assets are expropriated by the state without paying compensation or where foreign investors are discriminated against compared to domestic investors. These two factors are the essence of the ISDS mechanism. I would suggest that these are perfectly laudable matters to want to protect for investors—either our investors overseas or foreign investors here. I ask that we remember these two points as we debate these amendments.

On Amendment 17, in the names of the noble Lords, Lord Hendy and Lord Hain, and the noble Baronesses, Lady Blower and Lady Chakrabarti, the proposed new clause would result in the UK being unable to implement a continuity agreement that contains ISDS unless the matter in respect of which an ISDS claim was brought had its exact parallel in UK domestic law for UK investors.

Of course, foreign investors in the UK already have access to legal redress against the UK Government through domestic remedies. These will often be quicker and more cost-effective than resorting to ISDS, and the UK’s courts and legal system are held in high regard internationally, so it is not surprising that people often choose to go to our courts in the UK. However, it is important for foreign investors to have a means of redress which is seen to be completely independent of the UK state, and, as I said previously, ISDS remains valuable for UK businesses when investing overseas. It is very much seen as a mechanism of last resort but may in some cases be the only form of legal redress available to investors.

Like other noble Lords, I admired the erudition of the speech made by the noble Lord, Lord Hendy, to which I listened closely. He set out a long list of cases and argued cogently that ISDS may have a chilling effect on a state’s ability to regulate in the public interest. My noble friend Lord Caithness also made that point. However, while some cases that were cited are examples of ISDS impinging on the rights of the state, investor protection agreements do not eradicate the Government’s ability to regulate in the public interest, and it is this right to regulate that is recognised in international law.

The UK has more than 90 bilateral investment treaties in place with other countries, and there has never been a successful ISDS claim brought against the UK, nor, importantly, has the threat of potential claims ever affected the Government’s legislative programme. Let me be clear to put people’s minds at rest: ISDS tribunals cannot overrule the sovereignty of Parliament; they cannot overturn or force any changes in law.

Further, it is likely that the UK’s treaty partners would insist on reciprocal provisions—if I may come back to the amendment—for the implementation of trade agreements. This would result in UK investors overseas being unable to bring an ISDS claim unless there are also equivalent forms of domestic legal redress in those states, which in many cases, or some cases, there will not be.

One of the key benefits of investment treaties is to agree the precise details for an effective and common form of legal redress. Requiring this to reflect different domestic laws could disadvantage UK investors overseas by introducing uncertainty in a well-understood mechanism and denying them the same means of legal redress available to other international investors. I will come later, if I may, to the point that these mechanisms evolve and improve over time.

The noble Baroness, Lady Blower, raised the potential impact of ISDS on the NHS, and I would like to deal with that quite straightforwardly. ISDS does not and cannot force the privatisation of public services. Under current UK agreements, claims can be made only in respect of established investments—that is when a company is already operating in the United Kingdom—and claims cannot be made in relation to an alleged failure to open up public services to a potential investor. ISDS claims can only lead to compensation where the tribunal finds that treaty commitments or obligations have been breached, and they do not lead to a change in the law.

To be absolutely clear, ISDS will not oblige the Government to open the NHS to further competition, and overseas companies will not be able to take legal action to force us to do so. The NHS will continue to be free at the point of use for everyone who needs it. Protecting public services, including the NHS, remains of the utmost importance to the United Kingdom.

Similarly, Amendment 43, in the names of the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Kramer, would require that the UK sign a trade agreement only if it commits all parties to pursue the establishment of a multilateral investment tribunal system and an appellate mechanism for the settlement of investor-state disputes. This would apply to both continuity agreements and future trade agreements, even though the latter are outside the scope of this Bill.

Not all trade agreements include investment protection and investment dispute settlement. It is therefore not appropriate to require all trade agreements to include a commitment to pursue a multilateral investment tribunal system. To include such a requirement on the UK and our treaty partners for ratification in such a manner would hinder the progress of UK trade policy. It would also require reopening agreements to make these significant changes.

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[Lord Purvis of Tweed (LD)]

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

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

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

[Lord Grimstone of Boscobel (Con)]

The noble Lord raises two good points. On the first point, I will, if I may, write to him setting out in more detail the disadvantages and advantages that I see of the negative as opposed to the affirmative process. On the court, I make it clear that we welcome changes in the ISDS mechanism and potentially the formation of an MIC if, once the details are worked out, it seems that nations will sign up to it and it will be workable and in the best interests of the UK. We do not have our head in the sand in these matters. Like the noble Lord, I recognise that, if improvements can be made to the ISDS process, it is incumbent on us to do that. The point that I was trying to get across was that these are still early days in the discussions at the UN on this and it did not seem right to put our weight firmly behind it until we see how the discussions move forward. But I assure the noble Lord that we are open-minded about this and we will see where it gets to.

[Lord Hendy (Lab)]

My Lords, I am very grateful to the Minister for his response and to my noble friends Lord Hain, Lady Blower and Lady Chakrabarti for supporting Amendment 17. I am also grateful to all noble Lords who made such elegant and persuasive contributions to this debate, which has been wide-ranging and has covered a lot of issues.

I will not presume on the time of the Committee by commenting on particular contributions, save for two. The noble Lord, Lord Lansley, mentioned the fact that the central issue in the Philip Morris case was litigated in the World Trade Organization dispute mechanism, where the case was lost. His knowledge of the WTO is certainly greater than mine, but my understanding is that the rules, and hence the basis of the claim in the WTO, were different from the basis of the claim under the ISDS, not least because the claim in the WTO—as I understand it; I could be wrong—was brought by nation states rather than investing corporations.

The Minister made many points in his summary that I would like to take up, but I must resist. I will make just three points. First, he said that there were great benefits to UK investors overseas. Of course I accept that that is the case, but there appear to me to be four points to bear in mind.

First, this country should not support a mechanism that provides an avenue of challenge to other democratic states, just as it should not support a mechanism that enables a challenge to our democratic state. A remedy under ISDS is not available to citizens of either state except for investing corporations, but many citizens are affected by the matters covered by these trade agreements—food standards, environmental standards and labour standards.

Secondly, the Minister overlooked the globalised economy that we now have. UK corporations can establish almost anywhere in the world, just as foreign corporations can. So UK corporations can take advantage of ISDS arrangements by establishing a subsidiary to bring a case against the United Kingdom. There are dangers there, too.

Thirdly, when overseas investors make their investments, they of course evaluate the risk that things could go wrong or that the state might change the law. That is a matter for them. I do not see why we should put at risk our democratic standards by inviting a mechanism to protect overseas commercial investors.

Fourthly, this country has an admired legal system, as do many other countries. It is wrong in principle to provide a mechanism of legal challenge that is outside the domestic laws of any country.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Viscount. I agree with one point he made in his speech: it is for Parliament to seek guarantees on our standards. In essence, that is what we are seeking to do: to have a statutory underpinning to ensure that our trading relationships and trade agreements do not undermine them through various different mechanisms which can be beyond amending primary legislation.

It is certainly not uncommon for there to be duties in law on Ministers that frame how they carry out their duties. Most legislation that comes before Parliament has such duties. We are seeking the equivalent for the new approach we have for Ministers and the Department of International Trade when carrying out their trade negotiating duties. There should not be any great surprise about that. This legislation has restrictions in Clause 8 on the new powers for HMRC. There are duties in Schedule 1 about how Ministers carry out their duties on consultation. There is no great surprise that this legislation has restrictions and duties. We are simply arguing that, when it comes to the elements within our amendment, we are expanding the scope of those restrictions and those duties. The noble Baroness, Lady Noakes, might consider that to be appeasement, which I will refer to a little further on, but I disagree with her.

I wish to move government Amendment 23. I want to use those words because I doubt I will ever be able to move a government amendment, but a government amendment was moved on the previous Bill and, without wishing to be facetious, I shall go a little further and quote:

“My Lords, I am bringing forward amendments designed to maintain UK levels of statutory protection when implementing continuity trade agreements … The fact that I am able to do so is testament to the cross-party working that makes this House so valuable, and I have no doubt that this process has enhanced the legislation.”


That was the Minister, the noble Baroness, Lady Fairhead. Later, she said it was

“an improvement to the Bill”.—[Official Report, 20/3/19; cols. 1439-40.]

That is testament to cross-party working. It is not déjà vu or Groundhog Day, and I say to the noble Baroness, Lady McIntosh, that it is not a race or sprint in which we got there first because she is a dogged campaigner on these areas. I think this is more of a relay race between legislation and different individuals. I hope the Minister feels from knowing and seeing the Agriculture Bill and this Bill that it is the settled will of a cross-party consensus that the Trade Bill should be strengthened by the reinsertion of what the Government themselves had considered a strengthening of it.

I want to refer back to the Agriculture Bill, as other noble Lords have indicated. When the noble Lord, Lord Gardiner of Kimble, summed up, he referred to me and the noble Lord, Lord Rooker. In rejecting what we had argued for at that time—although the House did not agree with the Government and passed the amendment—he said that

“none of the 20 continuity trade agreements signed to date would undermine domestic standards.”

He then set us a challenge, saying:

“I look forward to those noble Lords who are determined that this is not the case at least having the courtesy to say, ‘Actually, our fears have been allayed’. I set that as a challenge.”—[Official Report, 22/9/20; col. 1755.]


In around five years’ time, if I am still here, I will say to whoever the Minister is that allays have been feared. The powers under this legislation are for five years and the Government have indicated that some of these continuity agreements are likely to change. Countries that we have signed continuity agreements with will have changed their agreements with the European Union over that period because many of them are discussing changes. The UK will have to choose how it changes its agreements. We are saying that any changes being brought forward must comply with our statutory standards.

The Government have indicated that that is not really necessary because they have pretty much got all the agreements done anyway, so it is purely an academic exercise. We have signed 20 agreements and there are 18 to go. Half is not all of them done and dusted. Given the fact that the Government had this amendment in the legislation when 18 were signed, not 20, what has changed? The noble Lord, Lord Gardiner, did not give a proper response. I look forward to the Minister giving one. The noble Baroness, Lady Noakes, said it was because the previous Government appeased those who wanted to keep our statutory functions. I would be grateful if the Minister can indicate why the Government have changed their position.

I turn to the issue of whether we should be completely reassured that, as the Minister has said before, no trade agreement can ever change statutory provision. The noble Viscount, Lord Younger—who is now back in his place—indicated in the previous group that that would be the case. On the face of it, that is correct. Any trade agreement would require statutory changes, if necessary, to change the primary legislation. However, we have already seen decisions made, for example, on quotas on imported sugar. Decisions have been made over the summer that will have a big and damaging impact on our domestic agricultural market because we will be giving a competitive advantage to those who are operating without the environmental or labour standards that we find acceptable. They also undermine commitments that we have given to the least developed countries.

It also comes back to the issue of chicken. I have been struck by the Government’s language about chicken and the use of chlorine washing. It was helpful that the NFU gave us the details of some of the concerns about this. It comes back to the specific food hygiene regulation. We are carrying this regulation over but the Government have said that it will change on completion of the implementation period. I shall quote from it:

“Food business operators must not use any substance other than potable water—or, when”


a regulation

“permits its use, clean water—to remove surface contamination”.

That is what the Minister has quoted to us in the past, and that is correct, but I found it really interesting, because the Minister did not finish the quote. It goes on to say

“unless use of the substance has been prescribed by the appropriate authority”.

So materials can be used—in a trade agreement that we can accept from America, for washing any of their products—if we simply prescribe that by an approved authority, and that can be done by negative resolution.

My suspicions always grow when Ministers, when they want to give us reassurance, give us half the situation. The record of the Government this year up to now is, I am afraid to say, that they say they have no intention of doing something just before they do it. The Government say “Trust us, because we have no intention in our future trading relationships of undermining any environmental standards” in the same week as they appoint a trade commissioner, Tony Abbott. I remind the Committee that the week he was appointed, when we were raising concerns on standards in previous proceedings on this Bill and on the Agriculture Bill, he told a conference in London, when he was giving his top tip on how to achieve success in trade negotiations, that they needed,

“not to be held up by things that are not all that important, and not be distracted by things that are not really issues of trade but might be, for argument’s sake, issues of the environment”.

I think the House believes that those aspects are issues of trade. Therefore, the current legislation lacks the enhancements that had been made by the previous Government in their amendment.

In conclusion, the Government’s previous position was:

“A key aspect of that continuity is to ensure that UK statutory protections are maintained. These protections are highly valued by our businesses and consumers and are an important component of the UK’s offer to the world”.


That is correct, and our offer to the world should be the highest standards. The Minister, the noble Baroness, Lady Fairhead, continued:

“It makes it clear that the power can be used only in a way that is consistent with the maintenance of UK levels of statutory protection in the listed areas”—[Official Report, 20/3/19; col. 1439.]


but the agreements, some now very old, will need to be updated, and, in updating them or replacing them, we will have to ensure that any of those changes will be upholding our current standards.

The noble Viscount, Lord Trenchard, suggested that some of this may restrict our negotiators or put extra burdens on them. I do not agree, for an historical reason. The noble Lord, Lord Lilley, said on Second Reading that the party of free trade should not be imposing restrictions. That was half the story. We got rid of the Corn Laws and introduced free trade at the same time as we got rid of adulterated bread, beer and milk and put in place public food standards against them and against counterfeiting.

The Sale of Food and Drugs Act 1875 was a major precursor of the Food Safety Act 1990, itself the precursor of the standards that we are now inheriting. Upholding them is the strongest tradition of Britain, where we have led since Victorian times and other countries have followed. Reinserting this amendment, with the addition of food standards, by the noble Baroness, Lady Bennett, and others and the support of the noble Lord, Lord Grantchester, would be a very strong signal to our trading partners in the world that we will be upholding our standards—British standards.

[Lord Grimstone of Boscobel (Con)]

My Lords, no one listening to this debate today could be in any doubt about the importance that noble Lords attach to the maintenance of the highest standards in the areas that we have been discussing. To make the Government’s position clear, we entirely concur.

I turn to the amendments, starting with Amendment 20 in the names of the noble Lord, Lord Grantchester, and the noble Baroness, Lady Bennett of Manor Castle. It is intended to ensure that regulations can be made under the Clause 2 power only if they adhere to UK standards of food production and safety and that partner country products are in line with our domestic health policies and policy targets.

I was grateful to my noble friend Lady Noakes for reminding us that Clause 2, to which many of the amendments that we considering today relate, relates to continuity agreements, not to new free trade agreements. As your Lordships are aware from the many debates that we have had on this issue in both this Bill and the Agriculture Bill, the UK already has extremely high import standards of food safety enshrined in domestic law. I say again that we have no intention of lowering these; I completely reassure my noble friend Lady McIntosh of Pickering on this point.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My noble friend Lord Grimstone has just confirmed my worst fears about this interchange of terminology between food safety and food standards. We owe the noble Lord, Lord Purvis, a great debt of gratitude because he clearly stated what Heather Hancock, as chair of the Food Standards Agency, has said on numerous occasions: that our current food safety standards can be changed overnight by the passing of a regulation—that is, a statutory instrument. I think he said that that could happen via the negative procedure, not even the full affirmative procedure.

There we have it. That is the problem. We are not even speaking the same language, which concerns me greatly. On food standards, whatever chemical you want to rinse with—such as chlorine—or hormone you want to inject your beef with, it is not something that the consumers of this country want to consume. I just wish that my noble friend Lord Grimstone would accept that this goes to the heart of our concern, reflected in this group of amendments and the other amendments that we will come on to when we discuss the International Trade Commission and what the future criteria will be.

It is not that the chicken or beef might be unsafe to eat; it is that the product does not meet the high standards of production that our farmers must meet. It will therefore undercut our farmers, who could potentially be put out of business. That is precisely what happened under a previous Conservative Government in the mid-1990s; as a result, 50% of pig producers—who were largely in north and east Yorkshire, I might add—went out of business. That is a position to which I do not want to return. Will my noble friend accept that this terminology is extremely important and that what the noble Lord, Lord Purvis, said in regard to the regulation being amended literally by the sweep of a pen is what goes to the heart of this argument?

[Lord Grimstone of Boscobel (Con)]

My Lords, of course I apologise if I caused any confusion in my remarks —but I stand by them. It would require a statutory process for these food standards to be altered.

Trade Bill

Lord Grimstone of Boscobel Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

[Lord Purvis of Tweed (LD)]

My Lords, I am very grateful to the noble Lord, Lord Lansley, for stating in very clear terms the benefit of putting into statute some of the restrictions on some of the activities of our political leaders, so that we do not need to trust them, because these are in the law. I hope that when it comes to future groups in this debate, the noble Baroness, Lady Noakes, and others will remember those very wise words of counsel that it is important to have things in writing in our statutes to protect our valued principles and institutions. I am grateful to the noble Lord for doing that.

As my noble friend Lord Fox pointed out—this is at the heart of the debate on this group—the NHS is not just a greatly valued health and social service for our nation but is seen by many as a great economic asset. The noble Lord, Lord Lansley, is right that, when it comes to procurement and the provision of services, there is a great deal that is provided by the private sector. In the debate on the first group, I highlighted that about half the public procurement of the entire UK Government relates to health and that around one-quarter of the beds in the mental health service in the north-west of England are operated by an American health operator. I made no judgment about the good or bad side of that, but simply stated it as a fact. And it is a fact that the United States wants to expand market access to the provision. The question that then comes is: what is the limit and, as my noble friend Lord Fox indicated, what is the right balance? That is a question for the Government.

The Government have stated, as they would say, “categorically”, that the NHS is not for sale. Michael Gove was in the Scottish Parliament just this week, and he said to MSPs:

“The NHS is not for sale under any circumstances.”


My question is: what does he mean by the NHS? For many people, intellectual property and pharmaceuticals, the access to and price of medicines, the delivery of services, the buildings that people are in, and the employers of the people providing those services, are the NHS. We can outline concerns about some of the risks of a trade agreement facilitating greater market access for the provision of the private service situation from America, but what is the Government’s view about the limits of that? This is a genuine and legitimate question that Members speaking on this group have asked.

Before I move on to Amendment 75, in the name of my noble friend Lady Sheehan, reference was given to the potential American deal. The noble Lord, Lord Lansley, is absolutely correct that much of the Bill is about how the continuity agreements are in operation; he cited the existing agreements that we have and he cited CETA. On IP and ISDS, which we will come to later, there is a different approach, which we want to explore further.

One of the things that gave us a degree of reassurance —there was of course debate on CETA and the health service; I remember that very clearly—and one of the differences was that British parliamentarians were able to take part in discussions agreeing the mandate for CETA when it came to the remit and extent to which health and pharmaceuticals and intellectual property would be within the agreement. The INTA committee in the European Parliament would have seen the text of the mandate and the negotiation position, the offer from the European Union and a draft text before it was signed, and it would have seen the final text before it went for a final review. None of us in this Committee will have any opportunity to have any of the equivalent for the American deal. It is therefore right to ask probing questions, especially since the question asked—I think by the noble Baroness, Lady McIntosh—was: what do the Americans want? I agree with the noble Baroness, Lady Noakes, that wanting something is not getting it. However, knowing what they want, and asking the Government what their position is on whether we are offering it, is correct scrutiny.

What do the Americans want? As we have heard, on intellectual property they refer to TRIPS, and page 8 of its negotiating mandate says it wants to

“ensure that the Agreement fosters innovation and promotes access to medicines, reflecting a standard similar to that found in U.S. law”.

When it comes to procedural fairness for pharmaceutical and medical devices, it wants to:

“Seek standards to ensure that government regulatory reimbursement regimes are transparent, provide procedural fairness, are nondiscriminatory, and provide full market access for U.S. products.”


We know what the American request is. We have not seen any of the negotiating offer from the UK—any counter-offer or any draft text—and the committee of the noble Lord, Lord Lansley, has not been provided with any draft text, as far as I am aware. Therefore, it is right to have in this Bill, at this time, proper questions along those lines. If the Government do not say what they mean by the NHS and the extent to which market access is open to new American providers then we must have the continuation of scrutiny.

On Amendment 75, I think my noble friend did the Committee a great service in bringing this amendment forward. My noble friend Baroness Northover has given the international context, as part of the debate on this group is around the international considerations. I am a member of the International Relations and Defence Select Committee, and we published a report in July this year which highlighted some of the truly drastic impacts of Covid-19 on Africa. We looked not just purely at the health elements but at the economic impacts. Of course, any economic impacts on the continent of Africa are also trade impacts for the United Kingdom’s relationship with those countries.

The African Trade Policy Centre of the UN Economic Commission for Africa has seen a 40% fall in African exports and GDP has effectively halved. The worst-case scenario looks like GDP falling by $120 billion, and UN ECA estimates point to Covid-19 pushing 27 million people into extreme poverty while imposing £44 billion to £46 billion in additional health costs. We know that those additional health costs will also incorporate what is likely to be a huge burden on many countries to provide vaccines and other medical support for a long-term, sustainable recovery from Covid-19.

It is right that my noble friend has raised the issue of the TRIPS Agreement and the Doha Declaration and whether the United Kingdom should activate, under that TRIPS Agreement, the ability of taking products over patents and then making them accessible. They would be accessible not just here in the United Kingdom but through a trading relationship. It is absolutely right that she has made that case. The noble Lord, Lord Lansley, has pointed to the Government’s capability to do that. My question to the Minister is: is it the Government’s intention to do it?

Canada did it in March. Canada Bill C-13—

“An Act respecting certain measures in response to COVID-19”—


authorised the Government of Canada to supply

“a patented invention to the extent necessary to respond to a public health emergency that is a matter of national concern.”

The Prime Minister indicated that Canada’s role within that is not just at home but abroad. If Canada was able to do that in March, knowing what the likely global impact would be not only on Canada but on the least-developed countries in the world, what is the UK’s position? If we have not activated that agreement, why not? If it is the Government’s intention to do it, how will they implement it?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am sure noble Lords remember that when they first entered your Lordships’ House, they would occasionally find it hard to remember how to get from A to B. There have been times during this debate, echoing the words of my noble friend Lord Lansley, when I thought perhaps I had wandered into the wrong Committee Room by mistake, because a lot of what we have discussed—in what has been a most stimulating debate—did not seem to relate to the purpose of the Bill, which is the rollover of continuity trade agreements. Leaving that to one side, I turn first to the amendment proposed by the noble Lord, Lord Bassam of Brighton, and the noble Baroness, Lady Bennett of Manor Castle, which would mean that the Clause 2 power could not be used to implement agreements that restrict the delivery of public services through public monopolies, exclusive rights or nationalisation.

As noble Lords know, we need the powers in the Bill to ensure continuity of trading relationships with existing partners. To date—I say yet again—we have signed 20 agreements with 48 countries, accounting, I am pleased to say, for £110 billion of trade in 2018 numbers. I can confirm that none of these signed agreements have impacted our ability to deliver public services effectively. We have always protected our right to choose how we deliver public services in trade agreements and will continue to do so. No trade agreement has ever affected our ability to keep public services public and that will not change. I am happy to give the noble Lord, Lord Bassam, a complete reassurance on that. I also reassure the noble Baroness, Lady Bennett of Manor Castle, that we will not do anything that impugns the democratic control of these matters.

Noble Lords will observe from our record of signed agreements that the continuity programme is seeking to preserve current trading relationships, not alter the way in which our public services are designed or delivered. If this is not an unparliamentary term, I think it is a red herring to suggest otherwise.

Amendment 51, tabled by the noble Baroness, Lady Thornton, the noble Lords, Lord Patel and Lord Fox, and the noble Baroness, Lady Bennett of Manor Castle, seeks to stipulate that regulations can be made using Clause 2 of the Trade Bill only if the agreement does not undermine the way in which the NHS is delivered as a public good, universal and free at the point of service.

No one listening to the debate could be in any doubt of the important place that the NHS has in the nation’s heart. I am pleased to put on record that I and the Government share the sentiment behind the noble Baroness’s amendment. We have been consistently clear about our commitment to the guiding principles of the NHS: that it is universal and free at the point of need. I tell the Committee the same thing that my colleague, the Minister for Trade Policy, told the other place, that

“the NHS is not and never will be for sale to the private sector, whether overseas or domestic.”—[Official Report, Commons, Trade Bill Committee, 25/6/20; col. 315.]

The Government will ensure that no trade agreements will affect our ability to keep public services public.

--- Later in debate ---

[Baroness Thornton (Lab) [V]]

I thank the Minister for his explanation. The Minister faces two main problems with this Bill. The first is the lack of transparency, which many noble Lords have mentioned during the debate. Until there is transparency, the Minister may be in some trouble over the issues of public services, particularly the National Health Service.

The second problem is this: I know that the Minister is relatively new at his job but it is our job to test Bills and decide what is relevant. Nothing is more relevant to most of the noble Lords who have taken part in this debate than the safety and security of the National Health Service, so my conclusion is that the Minister would perhaps be wise to discuss this issue with us between now and the next stage of the Bill. Can we meet and discuss it? Of course he reassures us and of course we know what the policy is but, with the exception of two or three speakers today, I think that we would all feel a lot safer if this measure were in the Bill.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Baroness for those comments. If she, as an experienced hand, is prepared to lend some of her experience to a new boy, I would be delighted to receive it. I cannot think of a better person to have a meeting with to enable me to do that. I meant absolutely no discourtesy at any point about the scrutiny of this Bill.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

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

[Lord Purvis of Tweed (LD)]

My Lords, in his remarks, the Minister referred twice to the mandate that the negotiators have for a future trade deal with America and stated that the mandate excludes the NHS. The language that the Government have always used is that they do not have a “mandate” for these negotiations, but “negotiating objectives”. If there is a mandate, as the Minister referred to, will he write to me about what it is? If he would prefer that to be confidential, he can write just to me, but it would also be beneficial and helpful if he wrote to the International Agreements Sub-Committee about it.

Secondly, the Minister must have been briefed before the debate on this group of amendments on both the consequences and the global implications of my noble friend Lady Sheehan’s very proper amendment, which raises these questions. My question to him—on the Government’s policy on utilising the TRIPS flexibilities that exist for medicines patents, which could then be available through our trading relationship with the least developed countries—could not have been more specific. He did not respond to it in his winding-up speech, so what is the Government’s position there? If they have not implemented legislation, as Canada did in March, why not?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that question. I draw no distinction between our negotiating objectives, which were made public before we started the US FTA negotiations, and the mandate. When I used “mandate”, I was referring to our negotiating objectives. I apologise if that caused the noble Lord any confusion. I will write to him on his point about TRIPS.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

I call the noble Lord, Lord Bassam of Brighton.

Trade Bill

Lord Grimstone of Boscobel Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 29th September 2020 Grand Committee

[Lord Purvis of Tweed (LD)]

My Lords, I wish to address Amendment 6, referred to my noble friend Lord Fox, and to support Amendment 3, spoken to by my noble friend Lady Birt and to which she has put her name. In so doing, I thank the noble Baroness, Lady Noakes, for supporting in principle the idea that we are asking the Government to outline how they will be supporting British business to take advantage of the GPA agreement of which we are now a member in our own right as agreed by the other members. I reassure her that this Bill will never be long enough to address all the fears that me and my colleagues may have of this Government, but the amendment is practical, sensible and simply asks the Government to be clear. We will not rely on the Minister’s winding-up speech in this short debate in Grand Committee; rather, as my noble friend Lord Fox has indicated, we are asking for a proper report from the Government setting out how they will support our businesses.

We want the UK to prosper and our businesses to benefit from any new opportunities while also not being burdened if trading relations with our biggest market in Europe are harder. Procurement is one area where our businesses can seek contracting opportunities across all the GPA members, but there are practical barriers to those, whether it is language, knowledge of that country’s government procurement system, having local partners or legal protections. These are just some of the factors among many and it is a complex area in which to do business.

According to the OECD, taxpayers’ money that is spent by the Government on goods, services and infrastructure such as roads, hospitals and schools accounts for over 13% of gross domestic product, so there is a huge market. I can reference Amendment 51 in a later group, but let me refer to the NHS here at home. My noble friend Lord Fox gave the figure of £67 billion of UK procurement. NHS England spends around £27 billion on goods and services every year. Ward consumables are delivered through the American-founded and German-owned DHL. Mental health beds are operated by American companies providing about 13% of in-patient beds in England. In some areas, the proportion of US-owned mental healthcare facilities is much higher. In Manchester, patients have a 50:50 chance of being admitted to a privately owned hospital and a one in four chance of that bed being provided by an American-owned company. Patients think that the NHS is purely British from beginning to end, but services are being provided by an American-owned company. There is thus no question about the need for the British Government to provide more support for British companies to take up opportunities abroad. The Government strategy is for the NHS supply chain to be expanded and to make it easier for companies around the world both to bid for and to secure NHS services within this country. Of course, they will assist British businesses in doing the same but—I am not necessarily critical of this—the Government operate a level playing field.

The US sees this market as a valuable one because it is colossal, so it is no surprise that it has within its negotiating mandate with the United Kingdom to ease barriers so that its companies can benefit from greater market access to provide over £30 billion-worth of basics and consumables in addition to £7 billion in deals for capital contracts. It has been interesting to note that procurement opportunities within the UK have expanded and that that is positive. It opens up the UK to more international co-operation, but as my noble friend Lady Birt, has said, we want to see greater support for British businesses to enable them to take up some of these opportunities too.

It is interesting to note that the European Union has emphasised that the final market access offer presented by the UK for membership of the GPA was

“commercially credible and viable, replicating the UK’s current coverage under the EU schedule with minor technical adjustments.”

The EU was a fairly enthusiastic supporter of the UK application, and why would it not be? It replicates the same basis as it has at the moment.

I note that the noble Baroness, Lady McIntosh of Pickering, asked the Minister about the thresholds. She referred to $130,000 being the threshold. That is the threshold of every single GPA member other than Japan and Aruba, which have it set at $100,000. Can the Minister say, if we are to have opportunities in our own right, why that threshold is the same as what we had within the European Union?

The reason the WTO and the EU were enthusiastic about replicating what we have at the moment is because the WTO said when it approved our GPA membership in our own right

“It was underlined that the United Kingdom accounts for over a quarter of the EU’s total procurements covered by the GPA and that, when taking into account just central government entities, the UK accounts for nearly half of the EU’s covered procurements.”


There is no doubt that the EU is happy because it has retained market access to nearly half of all of that covered within the EU.

We were led to believe that the Government would negotiate nothing without using British leverage to get a better deal for Britain. Can the Minister explain what we have done with that? The Government did not include procurement in their mandate for a future relationship with the EU, while the EU’s mandate did. It wanted to go beyond the GPA, including utilities and supplementing the GPA with additional areas of coverage which would have opened up the European market for British businesses under procurement. But, no, the Government wish to go on the GPA model, which means that the European Union has in effect preferential access to UK procurement where we have not sought to open up some of the barriers to the European market.

I have a final question to ask the Minister regarding what is happening here at home. The 1998 devolution settlement means that public procurement is an area of responsibility for devolved government in Scotland and Wales. The Government have indicated that they wish to seek divergence in our current approach to procurement. How would this be seen in the devolved areas? I know this as a former constituency Member in the Scottish borders who fought many campaigns on the issue of being against centralisation and the Government centralising procurement policy and bundling up contracts, which makes it harder for smaller, local businesses, as my noble friend Lady Birt has indicated. The White Paper states

“For both goods and services, these provisions will be supplemented by the non-discrimination principle. For goods, non-discrimination will apply within certain excluded areas such as procurement.”


Paragraph 145 goes on to say that the Government are considering

“whether and to what extent it should apply to public procurement, in particular for above-threshold procurements.”

That means that, in effect, the UK Government for England can decide what the threshold levels and the policies for procurement would be for the devolved Administrations. No reference is made to procurement in the Bill, so can the Minister clarify the position on procurement within the internal market?

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, it is a pleasure to speak for only the second time in a debate and my first time in Committee, but as with my maiden speech, it is on matters of great importance to the businesses and consumers of the United Kingdom as we prepare to take our first steps as an independent trading nation for the first time in over half a century. I look forward to working with your Lordships to bring this Bill on to the statute book. I listened to the vast experience of Members of the House when we debated the Bill at Second Reading, an experience which I have already heard repeated in this Committee, and I know that noble Lords will take great care to scrutinise the provisions of the Bill thoroughly.

As I said at Second Reading, the intention of the Bill is to ensure continuity and certainty for the UK and our trading partners once the transition period ends. It will establish an independent body to protect UK producers from injury caused by unfair trading practices. It will enable better use of data to facilitate and improve trade. It will also ensure—the subject of this group of amendments—that UK businesses continue to have access to £1.3 trillion a year of government procurement contracts globally through our independent membership of the WTO’s Agreement on Government Procurement, or GPA. What the Bill will not do is lower our standards in any area.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, I am sitting here looking at the small surface wipes, which profess to kill 99.9% of all viruses. In his speech, the Minister used broadly the same terms twice, and substantially the same terms once, when describing the follow-on GPA agreement. That is equivalent to the 0.1%, which is important these days. Could the Minister tell us what is not the same, because “broadly” and “substantially” is not “identical”? Therefore, there is a difference. In what areas are we seeing variation?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord, Lord Fox, for listening so intently to my speech to make those calculations. It is of great benefit to me that he did so. The changes are technical. I do not have them in front of me, although I know what they are. However, if I may, I shall write to the noble Lord and recount them for him.

[Lord Lennie (Lab) [V]]

I thank the Minister and other noble Lords who have taken part in this debate, in particular my noble friends Lord Hain, Lord Hendy and Lady Blower for their contributions on Amendment 5, my noble friend Lord Rooker on Amendment 100, and my noble friend Lord Judd for his childhood memories from the age of 13 about maintaining standards.

We are about trying to avoid any possibility of lowering standards or racing to the bottom. Maintaining current standards and including provisions in current EU law in the crossover to post-EU exit would be the greatest reassurance that we could all receive about the Government’s intentions. I am not in any way doubting the Minister’s well-intentioned summary of his intention and the Government’s provisions. However, if it is not carried over, it leaves the possibility of escaping from one or other provision at some time in future.

The noble Lord, Lord Balfe, remembers Jacques Delors coming to the TUC and talking about the EU’s intentions to provide standards across the whole of the continent. At the time, part of the TUC felt conflicted with those who believed that collective bargaining was the only way forward. A long time has passed since then, and we recognise the importance of legislation in supporting workers and standards, and other provisions that are subject to public procurement.

Therefore, there is no clear-cut decision to be made on these amendments, and the affirmative process brings things into the open. It is not just about the minimum decisions about changing departments’ names; it is about matters, from that, right the way through the procurement process that can be brought out into the open and debated in both Houses as and when it is necessary. It provides the Government with the opportunity to avoid the charge that they are not subjecting themselves to proper scrutiny. That said, for the moment, I beg leave to withdraw these amendments, but we may well return to this at a future stage of the Bill.

--- Later in debate ---

Finally, it was helpful to receive both a grammar lesson from the noble Lord, Lord Stevenson, and an insight into the mind of a Minister from the noble Lord, Lord Lansley. On this, I am on the side of the noble Baroness, Lady McIntosh of Pickering, and the Law Society of Scotland. I hope the noble Lord does not mind, but I will stick with the Scottish lawyers on this one. The argument that was made was that necessity is a stronger test, whereas “appropriate” can be used and does not necessarily mean that other non-legislative remedies can be sought by the Government. Therefore, the clarity that the noble Lord, Lord Stevenson, has asked for from the Minister would be helpful. It is necessary for the Minister to clarify how the Government define “appropriate”.

[Lord Grimstone of Boscobel (Con)]

My Lords, before I start, I acknowledge the point just made by the noble Lord, Lord Purvis, about the wide-ranging nature of modern FTAs. We will no doubt return to that point in our future debate.

On Amendments 7, 9, 10 and 103, I shall turn first to Amendment 9, which stipulates that Clause 2 would apply only to agreements that the EU has ratified with third countries, as opposed to simply having signed them. Unfortunately, this amendment would mean that important agreements with key strategic partners would be excluded from the scope of the clause and so, once signed, would be left without an implementing power. My noble friend Lord Lansley has picked up this point in relation to Canada. This would include an agreement with Canada, because CETA has not been fully ratified by each member state of the EU, despite being in effect for some time now. We have heard from businesses large and small that providing continuity in this particular trading relationship is essential; unfortunately, this amendment would threaten these vital trade flows and commercial relationships.

I also draw your Lordships’ attention to the fact that a number of international development-focused agreements between the EU and third countries have not been fully ratified, despite being in force for some time. One example is the economic partnership agreement with the CARIFORUM states. Developing countries are sometimes unable to ratify agreements in full before entry into effect. Sometimes this is for procedural reasons; sometimes it is due to issues of domestic governance. Whatever the reason, this amendment would deny the UK’s trade for development assistance to these countries, simply because the predecessor trade agreement was not fully ratified.

I reassure my noble friend Lady McIntosh that the agreements that this amendment seeks to exclude have been subject to comprehensive EU scrutiny processes at mandate, negotiation and concluding stages. We were fully involved in those processes. As noble Lords are no doubt aware, the delay to ratification relates to individual country or state processes, as opposed to those carried out at the level of the European Union.

On Amendment 10, just as the previous amendment sought to exclude a number of key trading partners from the scope of the Bill, this amendment seeks to bring a number of new FTA partners into scope, including the USA, Australia and New Zealand. As I explained to the House at Second Reading, this Bill is a vehicle for the implementation of continuity agreements only. I am grateful to my noble friend Lady Noakes for picking up this point. Scrutiny and implementation of new free trade agreements is an important conversation but one that must be had separately from the Bill. No doubt we will be having that conversation at various points in the future.

However, I recognise that many colleagues would like some indication of and clarity about how this process will work. As noble Lords are aware, when negotiating new free trade agreements we have gone above and beyond the baseline CRaG process, providing extensive information to Parliament, including publishing our objectives and economic scoping assessments prior to the start of talks. We also hold regular open briefings for MPs and Peers throughout the negotiations. We will continue to keep Parliament updated on negotiations as they progress, including close engagement with the International Trade Committee in the House of Commons and the international agreements committee in the House of Lords. I give full recognition to the valuable work of these committees.

At the end of negotiations, we will produce an impact assessment of the final treaty prior to it being laid before Parliament for scrutiny under CRaG, alongside an Explanatory Memorandum. In addition, we will seek to allow time between finalising a new FTA and laying it before Parliament under the CRaG procedure, so that the relevant scrutiny committees in Parliament may produce an independent report on the agreement.

I am sure we will return later in Committee to the whole question of scrutiny and the important role of Parliament. I hope that the noble Lords, Lord Purvis, Lord Blunkett and Lord Haskel, and my noble friend Lord Lansley will not feel short-changed if I keep some of my power dry until that later debate.

My noble friend Lord Lansley asked about legislation for implementing future free trade agreements. As we have said on a number of occasions before, the Government will bring forward specific implementing legislation—the primary legislation necessary—for new free trade agreements, providing Parliament with plenty of opportunities to scrutinise and vote on these agreements. I hope that reassures the noble Lord, Lord Purvis. I look forward, no doubt, to our debating the matters that we have debated on this Bill on future Bills which would implement future free trade agreements.

In a nutshell, I do not believe that the established and well-functioning process for scrutinising continuity agreements needs to be changed at this point. This House has held three debates covering six continuity agreements, following reports published by the European Union Committee. As your Lordships will be aware, none of these debates has resulted in a Motion to Regret. This process has been fair, open and, most importantly, proportionate to the nature of the continuity agreements.

On Amendment 7, like other noble Lords I enjoyed the noble Lord, Lord Stevenson, parsing the meaning of “appropriate” and “necessary”, and my noble friend Lady McIntosh has given us the benefit of her Scottish expertise on this matter. I can speak quite plainly and say that all regulations made under the Clause 2 power to implement international trade agreements will be necessary. The Clause 2 power is needed to implement legislative obligations arising from trade continuity agreements into our domestic statute. Our expectation is that this power will be mainly used for obligations relating to procurement or recognition of product conformity assessments. To clarify, tariff-related provisions will be implemented using powers in the Taxation (Cross-border Trade) Act.

Without the ability to make such changes, we would be at risk of breaching our international obligations. It is the Government’s responsibility to ensure that this does not happen. However, this proposed amendment could prevent that by constraining the vires or scope of the regulations that can be made under Clause 2, in particular when using the concurrent powers to legislate in areas of devolved competence. We will be debating that topic later in Committee.

I can assure the House that, despite the suspicions that some noble Lords have, the powers in this Bill will only be used in a proportionate way and that consultation with all stakeholders is a fundamental part of our approach and will remain so going forward.

On Amendment 103, I thank the noble Lord, Lord Stevenson, for his amendment. However, I fear I may be beginning to sound like a broken record, as I am going to say yet again that this is a continuity Bill. The Government have no desire to seek sweeping powers to be able to use this Bill to implement all our future free trade agreements, with the likes of the US, Australia and New Zealand. I dare say that, if we had tried to do that, our knuckles would have been very sharply rapped by this House.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend the Minister for the assurances, although I note his powder is as yet dry in relation to some of the subjects we will discuss later.

If I may make a point about what I am looking for from my noble friend, it is very clear that if future trade agreements—not continuity agreements—give rise to a requirement for changes in domestic legislation that are of significance, that must be achieved by bespoke primary legislation. I am sure that is what he intended by what he said. That is why, I am afraid, the noble Lord, Lord Purvis of Tweed, said about Amendments 10 and 103 is wrong, because they would, in effect, create a super-affirmative procedure for the implementation into domestic legislation of future trade agreements. We do not want that. We want it to be done by primary legislation because then it is capable of being amended.

We have to keep in mind, as we go through this, that there is a clear difference: ratification of a trade agreement is not the same as changing our domestic law, as my noble friend just said. Therefore, the CRaG process does not change UK law; what it does is enable the Government to ratify, or not to ratify, a trade agreement or an agreement into which it has entered. That is the distinction that we have to continuously keep in mind: the CRaG process is not changing UK law; it is determining on what basis we have agreed with another country. If we then need to change our law, we must do it ourselves, and Parliament will have the ability to decide in what terms we do so.

[Lord Grimstone of Boscobel (Con)]

I thank my noble friend Lord Lansley for giving me the chance to clarify my comments. We have already said, and I am happy to say again, that we will bring forward primary legislation as necessary for future FTAs with new trade partners. As my noble friend quite appropriately spotted, we could not implement those free trade agreements without bringing forward primary legislation. The CRaG process does not do that—it ratifies the treaty but cannot, in itself, alter domestic legislation.

[Lord Purvis of Tweed (LD)]

My Lords, I listened carefully to the Minister. He said two things, one with regard to the scope of this Bill. We have heard Ministers many times state their desire for this Bill to be very limited in scope and look only at continuity of trade. The Government have brought amendments to this Bill to widen the scope quite significantly, for example on data sharing. The debates we will be having fall squarely within the spirit of what the Government have done to open up the scope.

We will be returning to this valid debate area, but I want to ask the Minister a specific question. I listened carefully to what he said. In objecting to some of the amendments, he referred to the fact that some of the agreements did not require scrutiny within this Parliament because, he said, they had already undergone the EU scrutiny process, mandate, negotiation and ratification stages. That was by the European Parliament, where British MEPs sat and were able to take part. For new agreements, we will have no equivalent. To be clear, is the Government’s position that the EU scrutiny process—when it comes to the agreements that have been approved by the European Union and gone through it but not yet been put into domestic legislation—is equivalent to the CRaG process the Government are asking to use going forward?

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Purvis, for his comments. The continuity agreements were those that were in force before 1 January or had been agreed to by the EU, even if not fully ratified, before then. We were fully participating members of the European Union then. The committees of this House and the other place that scrutinise European legislation—the noble Lord knows much more about that than I do, being a new boy—scrutinised these agreements and did that satisfactorily.

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

My Lords, I thank everybody who has spoken in this debate. It has been a bit of a rollercoaster ride. I have felt optimistic at some moments and deeply depressed at others. I am going to end up being optimistic because I am that sort of chap. I will take the good that I have heard from my noble friends Lord Blunkett and Lord Haskel, in particular. I was grateful on this occasion not to be attacked by the noble Baroness, Lady Noakes. It is always a good day when that happens—I am only joking.

The noble Lord, Lord Lansley, made some good points about keeping in mind the difference between ratification and implementation as we go forward. He is right to stress that point and I am sure we will come back to it. The noble Lord, Lord Purvis, raised a number of questions that had a bearing on that. I started to get slightly worried about where he was heading —for example, on the issue about the implementation of agreements made under the royal prerogative being ratified under the CRaG arrangements. This is an obvious consequence of where we stand with our current procedures. It leaves the question open as to why we need primary legislation. If the Minister is saying that all future deals are to be made in relation to existing standards that will never be lowered, in view of not changing or disadvantaging our labour and environmental standards and our future arrangements on climate change—on the agenda later today—what is this primary legislation of which he speaks? This is something we will need to come back to and I will be thinking about it.

Finally, I want to pick up the point made by the noble Baroness, Lady McIntosh of Pickering, which I thought was a good one. Can I join her in asking the Minister whether he could write to us about it? Paragraphs 44 and 45 of the Explanatory Notes refer to varieties of trade agreements and the Minister did not deal with that in his response to the noble Baroness. The types of agreement within the definition of “international trade agreements” include memorandums of understanding and he will know that this matter has been raised with him by the International Agreements Committee of your Lordships’ House. It is a topical point and I would be grateful if he could give us some further information when he is able to do so. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I remain be-seated to beseech the noble Baroness, Lady Noakes, and others to support Amendment 45 in this group. I shall try to address some of her specific points about that amendment a bit later.

It was very helpful that the noble Lord, Lord Hunt of Kings Heath, was able to take part in the debate on this group, and it is a pleasure to follow him. What he outlined very clearly, in many respects adding to what my noble friends Lady Kramer and Lady Northover said, is that it is now almost impossible to strip out human rights considerations from global trade. We require a degree of pragmatism from our Government in the scope of how much extra global trade we can have. Over the last couple of years, there has been a huge narrative saying that, once we are free of the shackles of the European Union, there will be massive growth potential in untapped markets around the world. Of course, there are constraints on that: in opening up those markets, there can be unfair access to our country that puts us at a disadvantage, or we can reduce standards or set them aside. That means setting aside new international norms on human rights and sustainability, inasmuch as they are a legitimate restriction on total and unlimited free trade.

The narrative therefore needs a degree of adjustment. I wish to address Amendment 45, which I hope is a reasonable addition to this debate but should also be seen within the package of Amendments 23 and 39, which are not in this group. It is about an overall framework of what the restrictions should be on our entering into trade agreements, the level of scrutiny that should exist and how we report on their impact. I hope that together they might allay some of the concerns of the noble Lord, Lord Lansley, given what he said in the previous group about the need for a proper level of scrutiny.

Every year the Government publish a human rights and democracy report. This year, Human Rights and Democracy: the 2019 Foreign and Commonwealth Office Report ran to nearly 70 pages. The noble Lord, Lord Ahmad of Wimbledon, prefaced it, after the Foreign Secretary, by saying:

“Every day, across the globe, UK Ministers and officials stand up for a set of universal rights that, if fully realised, would afford everyone, everywhere, dignity and allow people to flourish.”


I agree with him, and I am not sure that anybody would disagree with that. It is now inevitable, since we have an independent trading policy, that the impact of our trading relationships will have to be incorporated into our reporting. I am fairly open-minded as to how that is done, as long as it is done, and I am very happy to develop the idea further along the lines of the discussions suggested by the noble Lord, Lord Lansley. But I want to give a reason why it is also important and raise some questions for the Minister.

As we have said, it has become the practice for human rights to be part of the political and social chapters of trade deals. That has been the case over recent years and it has been the case in the EU common approach to the use of political clauses agreed in 2009. According to EU practice, in trade agreements human rights are to be included in EU political framework agreements under “essential elements clauses”. EU FTAs are to be linked to those political framework agreements. If no political framework agreement exists, essential elements clauses are to be included, and serious breaches of those clauses may trigger the suspension, in whole or in part, of the overall framework agreements. All the agreements, including the trade agreements, are linked. Are we seeking to continue this approach to future trade agreements? Will we deviate from an approach that we helped design in 2009?

My second point relates to Clause 2 powers, which we have already referred to this afternoon. I remind the Committee that it provides the authority to make regulations considered

“appropriate for the purpose of implementing an international trade agreement”,

including those that make provision for modifying primary legislation that is retained EU law. The Minister referred to that during debate on the first group. I remind the Committee that retained EU law includes primary legislation such as the Equality Act 2010, the Energy Act 2013 and the Modern Slavery Act 2015, as referred to. Therefore, it is important to know that the implication of the regulation-making power in this Bill is an ability to change primary legislation on human rights. For example, the Equality Act gives effect to four EU law mandates: the race equality directive, the equal treatment directive, the equal treatment in goods and services directive and the equal treatment recast directive. Therefore, to allay many of the concerns, can the Minister tell us whether the Government will rule out using this regulatory power to amend primary human rights legislation? If he cannot give that commitment, I am afraid that he will have to appreciate that concerns about the Government’s intentions will remain, because the Bill has insufficient safeguards to ensure that human rights legislation, debated and voted on in primary legislation, cannot be amended by regulations.

Coming back to international trade, my final point concerns continuity and pragmatism. It is not the case that there has been no consideration of human rights in continuity agreements so far. I am a member of the International Relations and Defence Select Committee, which has written to the Government and the Minister about human rights considerations regarding trade and continuity agreements with Israel and the Palestinian Authority. We have agreements, that have been EU agreements, with Algeria, Cuba, Egypt, Eswatini, Iraq, Kazakhstan and the Palestinian Authority. They are all classified by Freedom House as not free, but all those agreements have human rights components within them. I will be the first to say that this is not a panacea and that some—with Vietnam, for example—are fairly problematic, but they all exist. Therefore, if the Government are seeking powers over the next five years to amend those agreements by regulations, what are their intentions for the human rights clauses of those continuity agreements? If the Minister can clarify that, it will be very helpful.

Canada has been referred to in debate on this group and it is a very interesting example. The approach for Canada has developed beyond simply those that we have had for other continuity agreements. A European Parliament briefing on the CETA says that

“a particularly serious and substantial violation of human rights or non-proliferation, as defined in paragraph 3, could also serve as grounds for the termination of the EU-Canada Comprehensive Economic and Trade Agreement.”

Therefore, for the first time, what is envisaged is not simply the suspension of trading relationships but the termination of those relationships—a nuclear option, as it were. One would imagine that that would never become the situation between Canada and the EU, but the possibility exists.

Given that it is government policy to have a Canada-style agreement, there is no reference in the draft text from the Government to the EU that they published over the summer to any equivalence for human rights. There is none at all. The only reference to human rights in the draft text would be to deny most favoured nation status to other third countries if they violate human rights. If we are to trust the Government, which the Minister says repeatedly for us to do, why is it that in their draft text for the EU agreement, they have not put in any draft text for any human rights clauses as far as we operate with the European Union? The very least we can do is to have the ability to ask the Government to report on its impacts.

With reference to the comments by the noble Baroness, Lady Noakes—and I will conclude on this point—the Government publish a comprehensive human rights and democracy report every year. That is not onerous; that is what the Government do. As they say, it underpins their foreign policy. With regard to sectors in our amendment, they are sectors linked to all of the sections within the agreement. That is fairly straightforward. When it refers to our commitments, and the countries we have signed commitments with, yes, it is the whole lot, because that also covers what we currently have within the Commission.

The only reference to human rights, in what the Government are proposing with future trade agreements, is other countries not adhering to them. We do not believe this is sufficient. I am very happy to speak to the Minister, and to the noble Lord, Lord Lansley, and others, if there is a better way of having this. Given the fact that trade is going to be a fundamental part of our foreign policy and our foreign relationships, we will require a reporting mechanism of the impact of trade on human rights for the United Kingdom and those we trade with.

[Lord Grimstone of Boscobel (Con)]

My Lords, before I come to Amendments 11, 18, 33 and 45, I want to put on record that we have heard some very powerful views on human rights expressed by noble Lords in the Committee today. I deeply respect those views and when I say, with all due respect, they are not relevant to this Bill, which is about continuity agreements, I hope that is not in any way taken as me belittling those views that have been expressed. I would also like to put on record that we do not see it as a choice between securing growth and investment for the UK, and raising human rights. There is not a trade-off here that we are looking to make.

The UK is active in raising human rights concerns. In the case of China, it raises those concerns both directly with the Chinese authorities and in multilateral fora. For example, on 30 June the UK delivered a statement on behalf of 28 countries at the UN Human Rights Council, highlighting some of the matters that noble Lords have raised today—that is, highlighting arbitrary detention, widespread surveillance and restrictions, particularly those targeting Uighurs and other minorities, and urging China to allow the UN high commissioner for human rights meaningful access to Xinjiang. When I say these concerns are not relevant to the Bill, I am in no way say these concerns are not relevant in a wider context and deeply felt.

Coming to the amendments we have been debating today and turning first to Amendment 11, I am proud to say the UK has a strong history of protecting human rights and promoting our values globally. This will not change once we leave the EU. We have always been clear that we have no intention of lowering protections in these areas, as the Prime Minister set out in his Greenwich speech earlier this year. We are not engaged, as the noble Lord, Lord Hain, said or feared, in a race to the bottom. The bottom would not be an appropriate place for the United Kingdom to find itself.

It should come as no surprise that our continuity programme is consistent with existing international obligations as it seeks to replicate existing EU agreements which, of course, are fully compliant with such obligations. By transitioning these agreements, we are reaffirming the UK’s commitment to international obligations on labour and human rights. As noble Lords know, we are seeking to provide certainty and stability in trading relationships for UK businesses and consumers through our trade agreement continuity programme.

--- Later in debate ---

[Baroness Cox (CB) [V]]

My Lords, I will speak very briefly, just to put on record the issues I would have highlighted in my speech if I had not ineptly failed to identify the amendments to which I intended to speak, for which I apologise. I will have much more to say when we reach Amendment 68, on genocide, at later sittings.

It is a privilege to speak in support of Amendment 33. On 29 June I spoke in support of an amendment, also moved by my noble friend Lord Alton, to the Telecommunications Infrastructure (Leasehold Property) Bill, saying:

“This is not about China or Chinese companies … It is a conflict of values between … democratic societies and repressive, cruel regimes”—[Official Report, 29/6/20; col. 529.]


such as China—and I would add today, as they are especially relevant, Turkey and Azerbaijan.

China is undertaking religious persecution of Muslims and Christians, using slave labour and incarcerating Uighurs in concentration camps, as noble Lords have already heard. There is also the enforced sterilisation of Uighur women in four prefectures, which would violate the 1948 Geneva convention.

The United States has banned imports, including cotton and computer parts, from five regions in China, claiming that these extraordinary human rights violations demand an extraordinary response. This is modern-day slavery. As I finish my brief resumé, for the protection of our national security, our national interest and our values, I believe Amendment 33 is essential and Parliament should have the right to ratify trade agreements.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Baroness for those comments. I have carefully noted them.

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

My Lords, I am conscious of time and I will try to be brief. We had an interesting discussion because this was a good group, even though it was quite widely drawn. We touched on the limits and what the Government should have to say about their policies going into negotiations. We talked about what aspirations they might have, how they go forward and the scrutiny arrangements that should follow. Out of that came a sense, that we all shared, that if you wanted evidence that trade matters to Parliament, this debate and particularly the section on the amendment from the noble Lord, Lord Alton, proved that we were talking about substantial issues at the heart of what we think about a democracy and that are important for how we relate to society more widely.

Having said that, we should not forget the earlier discussions, particularly those led by my noble friends Lord Hendy and Lord Hain. I thought that the speeches from the noble Baroness, Lady Stroud, and my noble friend Lord Judd, were also important and I also appreciated the comments made by my noble friend Lord Hunt. We covered a lot of ground, have a lot to think about and will read Hansard carefully. In the meantime, I beg leave to withdraw the amendment.