Trade Bill

Lord Haskel Excerpts

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

I come to my conclusion and reiterate that the sustainability of the NHS is an absolute priority for the Government. That is why we are clear that, in any negotiations on future trade agreements, we could not, would not and will not agree to any proposals on medicines pricing or access that would put NHS finances at risk or reduce clinician and patient choice. These are red lines for us, and I absolutely reassure the noble Baroness, Lady Sheehan, on this point. I therefore ask that the amendments in this group be withdrawn.

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

I have received requests to speak after the Minister from the noble Baroness, Lady Thornton.

[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.

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

We now come to the group beginning with Amendment 15. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 15

Moved by

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[Baroness Kidron (CB) [V]]

My Lords, I shall speak to Amendment 34 in my name and that of the noble Baroness, Lady Kennedy of the Shaws, and the noble Lords, Lord Clement-Jones and Lord Holmes of Richmond. I declare my interests as set out in the register, particularly as chair of the 5Rights Foundation.

The purpose of the amendment is to ensure that the online safety of UK children and other vulnerable users is not compromised in any UK trade deals, which is of particular relevance to the trade deal between the UK and the US for two reasons. First, the US has recently taken a determined stance in this area and inserted a requirement for recipients of US trade deals—including Mexico, Canada and Japan—to accept aspects of the broad and hugely contested US domestic law, Section 230 of the Communications Decency Act which even the US Attorney-General William Barr describes as enabling

“platforms to absolve themselves completely of responsibility for policing their platforms”

and an IP regime that unduly benefits the mega corporations of Silicon Valley.

Secondly, such broad protection from any liability threatens to put a chill on, if not undermine entirely, existing UK law and threatens the efficacy of the much-anticipated online harms Bill. By contrast, Amendment 34 would make negotiators unable to agree to terms in any trade agreement that did not uphold the UK’s regime of child online protection.

New paragraph (a) captures laws and undertakings in current UK legislation and treaties. This would allow the Government to cite treaties such as the UNCRC, which the UK has ratified but the US has not, and also domestic legislation that has already been passed, for example protections for children from pornography in the Digital Economy Act 2017.

New paragraph (b) specifically refers to the data protections brought into law on 2 September in the form of the age-appropriate design code, an initiative introduced and won in the House of Lords by a similar all-party grouping. It is already having a profound impact on the safety and privacy of children online around the world. New paragraph (b) also ensures that the Data Protection Act 2018 is protected more generally, since the code is built on the broader provisions of the DPA.

New paragraph (c) would allow the Secretary of State to determine that domestic legislation which protects children online can be subject to a carve-out in trade agreements. We cannot directly protect a Bill that is yet to be brought forward but, if this amendment were adopted, the advances promised by the online harms Bill, such as a duty of care tackling the spread of child sexual abuse material, and the introduction of minimum standards, could all be upheld.

Finally, the amendment defines children as persons under 18. This is crucial, since the US domestic consumer law, COPPA, has created a de facto age of adulthood online of 13, an age of maturity that flies in the face of our law, our culture and all known understanding of childhood development.

Turning to the amendment’s relevance to the Bill, I have listened carefully to the Minister, who is at pains to point out that the powers of the Bill are limited to continuity agreements. However, much has been repeatedly said about the lack of parliamentary oversight of the UK’s values as a new trading nation. The Committee can only judge the Government’s priorities on what is in front of it, and I am hopeful that their long-term commitment to making the UK the safest place for a child to be online will be one such priority.

I am not an expert in trade, but I have consulted widely with colleagues and legal experts who are. Their collective confusion would suggest that it remains unclear to what extent agreements between the EU and the US in relation to data flow, data protection and liability services might be considered in scope under language about mutual recognition agreements, which we have yet to hear much about. The Library’s briefing on the Bill points to the fact that:

“The bill does not specify that the new agreement between the UK and a partner country must replicate or be similar to the original EU agreement.”


Were the EU-US agreements to bring these into scope, this leaves a great danger that the safety of UK children will be undermined through the mechanism of a Trade Bill with no oversight or challenge. When the Minister responds, I would appreciate some clarity that this is not the case.

I want to be clear about what it would mean if we sign away the UK’s right to protect children online. The tech sector would be able to continue to regulate itself, meaning more young people having their data harvested and used to recommend dangerous self-harm and suicide content. More games with no breaks or save buttons would trap children in twilight worlds of gaming. More children would be suggested as potential friends to strange adults through risky design features, and more would face the images of their horrific sexual abuse being circulated online forever. These are just some of the harms that the code and the upcoming online harms Bill are designed to end. All would be at risk if the tech companies get their way—as they are furiously lobbying to do—through the “back door” of a Trade Bill. This is not a risk we need to take.

I note the point made by the noble Lord, Lord Lansley, that amendments of this nature hamper the free hand of trade negotiators and, simultaneously, give sight to trade partners of the UK’s red lines. I hope he will forgive me for saying that that is indeed my intention.

I will finish by hijacking a comment from the noble Baroness, Lady Noakes, during Tuesday’s Committee to point out that it is not only those on the Liberal Democrat Front Bench who want their anxieties to be answered in the Bill. Online harms are an issue that causes anxiety to Members of all parties in both Houses and to vast swathes of the public. There was undoubtedly a majority in the country for releasing the UK from its European trade partners, which forms the context for the Bill, but there is a far greater majority in the country for regulating technology companies. A survey undertaken last year by 5Rights showed that 90% of parents wanted internet companies to be required to follow rules to protect children online, and 67% of those wanted them to be enforced by an independent regulator or the Government.

I appreciate that the noble Lord, Lord Grimstone, has sought to reassure me on Zoom and by letter that the Government will try to maintain their ability to protect users from emerging online harms in a UK-US trade agreement, and I very much welcome his personal commitment to child online safety. However, given the importance of the issue, I ask the Government to put that reassurance in the Bill. It is not scaremongering. The US, at the behest of the richest and most powerful companies in the world, has already inserted Section 230 into each of its recent trade agreements. As the UK becomes the author of its own priorities in the world, there must be no greater priority than putting beyond doubt that it will not trade away the safety and security of its children.

Therefore I ask the Minister whether he can persuade the Government to adopt the substance of the proposed amendment and, in doing so, categorically take our kids off the table.

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

My Lords, next to speak are the noble Baroness, Lady Kennedy of the Shaws, and the noble Lord, Lord Holmes, but they are not present and are not logged on to Zoom. The noble Baroness, Lady McIntosh of Pickering, has withdrawn. I call the noble Lord, Lord Judd.

[Lord Judd (Lab) [V]]

My Lords, Amendments 15 and 16 speak for themselves, but I just want to take a moment to say how glad I am that the noble Baroness, Lady Kidron, has brought her amendment on safeguarding. The significance and importance of this cannot be overemphasised, and I hope that she will find support from across the House.

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

I call the noble Lord, Lord Sheikh. No? I call the noble Baroness, Lady Ritchie of Downpatrick.

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

My Lords, I support the amendments in this group, but I particularly want to speak to Amendment 34 in the name of the noble Baroness, Lady Kidron. This issue is particularly dear to my heart. I know that the noble Lord, Lord Lansley, and the Minister will say that this does not fall within the remit of the Trade Bill, which simply deals with continuity agreements, but by that very fact this feature to do with online child safety is of vital importance. The noble Baroness, Lady Kidron, has comprehensively addressed this amendment. She has clearly said that its purpose is to ensure that the online safety of children and other vulnerable users is not compromised as a direct consequence of clauses that appear in free trade agreements.

As we are already aware, the UK does not have a highly developed system of negotiation. As the Bill stands there is no parliamentary oversight, meaning that the terms of the agreements are exclusively in the hands of the negotiators and the Government of the day. This is of particular concern in the area of online protection, for two reasons. First, this is an area on which the US has already taken a determined stance and inserted a requirement for recipients of US trade deals to accept aspects of a broad and hugely contested US domestic law unduly benefiting the mega corporations of Silicon Valley in the USA. Secondly, such a broad lack of liability threatens to undermine or put a chill on the existing UK law and the much-anticipated online harms Bill, as referred to by the noble Baroness, Lady Kidron.

Overall, the amendment would make negotiators unable to agree to any trade agreement that did not protect children online to the same degree as UK domestic legislation and treaty obligations. I suppose, in summary, this amendment would copper-fasten, ensure and safeguard UK domestic attitudes, legislation and guidance, protecting children’s safety online as a necessary requirement of any trade agreement. I submit that it should be in the Bill.

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

My Lords, the noble Baroness, Lady Noakes, has withdrawn, so I call again the noble Lord, Lord Sheikh.

[Lord Sheikh (Con) [V]]

My Lords, I apologise because I did not unmute myself, but I think that Lady Sheikh has managed to unmute me.

I support Amendment 34 in the name of the noble Baroness, Lady Kidron. While the internet is a space for innovation, expression and communication, it can also be damaging. As our digital world develops and innovates, so do the risks of online harm. Children are increasingly exposed to inappropriate content, grooming, harassment, malicious behaviour, misinformation and breaches of privacy. Two-thirds of vulnerable children and young people, supported by Barnardo’s sexual exploitation service, were groomed online before meeting their abuser in person.

Social media companies have failed to prioritise children’s safety. Last year, the NSPCC found that more than 70% of reported grooming took place on the main social media networks—Facebook, Instagram, WhatsApp and Snapchat. The global platforms are not taking enough responsibility for content on their sites, or being held accountable. More needs to be done to verify user identities, monitor harmful content and handle reports of abuse effectively. Harmful content and activities have a damaging effect on children’s mental and physical well-being and can lead to exploitation, trafficking, substance abuse and radicalisation. Those impacts are rarely short term; they stay with the children for the rest of their lives.

The UK is committed to being the safest place in the world to be online, and we must do more. We need better safeguards, and I urge the Government to prioritise the online harms Bill, which will be world leading in safety requirements and holding the industry accountable. As we leave the European Union and continue to develop our place in the digital world, we must ensure that our standards and goals are not jeopardised. We recently signed a trade deal with Japan; this historic agreement will advance digital standards through data provisions that maintain and improve digital safety. This year, Japan was ranked first in the child online safety index for low cyber risks. Those risks refer to bullying, misuse of technology, the detrimental effect of gaming and social media, and exposure to violent and sexual content.

In the UK-Japan trade deal, the rights and protection of children online have not been undermined, as Japan shares a similar ambition to ours for legislative standards. But what will happen when we look to sign with other countries that do not have the same level of protection? Unlike Japan, the United States came 22nd out of 30 countries in the child online safety index for cyber risks.

Although this is only one aspect of the index, it shows that children are particularly at risk online in the United States. We cannot expose our children to the same abuse. The new trade agreement between the US, Mexico and Canada has created a legal shield for tech companies, whereby the service providers are not held liable for content on their platforms or the harm it may cause to users. This fails to hold social media companies to account, and is not an effective safeguard for children.

Supporting the amendment would mean that our existing protections could not be traded away, and would ensure that we could fulfil our duty of care to children. If we do not support the amendment, we risk undermining our commitment to create a safer world online for the protection of children. Furthermore, if we do not do this, we could cause a situation in which social media giants are not transparent in how they deal with abuse online, and may be less accountable.

The pandemic has reinforced the importance of the digital world in our lives. When we return to normality, we must have better safeguards. We should not just maintain our existing safeguards; we should endeavour to strengthen them. The amendment would mean at least that our existing laws, and therefore the rights of our children, were protected. I hope that it will be accepted.

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[Viscount Younger of Leckie (Con)]

My Lords, I will first speak to Amendments 15 and 16, tabled by the noble Lords, Lord Clement-Jones and Lord Stevenson, and my noble friend Lady Neville-Rolfe. I thank them for their engagement on the Bill and for their wider work over many years on the vital issue of intellectual property. As my noble friend Lady Neville-Rolfe said, this debate is rather reminiscent of six years ago when I was somewhat steeped in intellectual property in the old BIS department. The noble Lord, Lord Stevenson, was my opposite number, and my noble friend Lady Neville-Rolfe was my successor. This could therefore, perhaps, be described as a continuity debate on a continuity Bill.

These amendments would require the Government to publish reports detailing the impact of a trade agreement on intellectual property and data flows before they could make implementing regulations under Clause 2. I am proud to say the UK’s IP regime is consistently rated as one of the best in the world. That is a point also made by the noble Lord, Lord Clement-Jones. Now that we have left the EU, in line with our WTO commitments, the Government will continue to maintain our high level of protections of intellectual property. Let me say that at the outset. We recognise that an effective intellectual property system needs to strike a balance between supporting the UK’s world- class technology sectors to research and innovate and reflecting wider public interests. This balance will be reflected in our approach to intellectual property when striking new free trade agreements.

None of the 20 continuity agreements we have signed has weakened IP protections in any way, replicating as they do the provisions in the underlying EU agreements. They do not introduce new or diluted provisions in the fields of IP, data flows or any other areas. As a result, we heard positive endorsements of the Bill during Committee in the other place from service-oriented industries including the Advertising Association, the Institute of Directors and EY.

The noble Lord, Lord Fox, invited me to take the questions that were raised by the noble Lord, Lord Clement-Jones, and I say at the outset that I should and do take his questions seriously. One of the points that he raised was: will the Government include a wide range of specified provisions on IP in the trade agreements? Given that this is a continuity Bill, I suggest to him that the answers to his question can be found in the status quo. He mentioned negotiations on IP with the USA and New Zealand, which are not included in the scope of the Bill. However, DIT Ministers hold regular briefings with Peers on the progress of negotiations; I have attended at least two, and I encourage him to join up next time round.

Further to this, the noble Lord asked about the question of IP in our negotiating objectives in the US agreement. If he would like more information on our approach to IP in the negotiations with the USA, he can consult our negotiation objectives. Giving him a bit more detail, I assure him that, first, we will secure copyright provisions that support UK creative industries through an effective and balanced global framework. We will project UK brands while keeping the market open for competition, and we will promote transparent and efficient administration and enforcement of IP rights.

We have already mentioned the parliamentary reports we publish alongside signed agreements explaining our approach to delivering continuity. We believe that publishing additional reports alongside these would slow down the process of concluding agreements and increase the bureaucracy involved. In fact, taken cumulatively, all of the amendments tabled to the Bill by your Lordships would compel the Government to publish no less than 11 new reports alongside every single continuity agreement we sign. I believe that this would not be a good use of time or resources, and I hope the Committee agrees with that.

The UK has long been, and remains, a strong supporter of an open, rules-based international trading system. The WTO’s TRIPS—which was referred to in the debate on the last group—sets out the minimum standards for trade in intellectual property across all WTO member nations. As the UK updates the terms of its WTO membership, we will be making sure that we remain compliant with the TRIPS agreement and, as part of future trade deals, the UK will look to refer to—and improve on—the standards set out in international agreements.

With regard to future FTAs—although they are not included in the scope of this Bill—we support ambitious and liberal provisions that support international cross-border data flows while understanding the importance of ensuring that personal data protections are not put at risk. The UK Government are committed to ensuring that uninterrupted data flows can continue between the UK, the EU and other countries around the world. I reassure the noble Lord, Lord Clement-Jones, that the free flow of data, including personal data, is crucial to international co-operation in the modern world, but it must be underpinned by high data protection standards. We are equally committed to ensuring high standards of data protection and privacy after the end of the transition period.

The noble Lord, Lord Fox, mentioned in his remarks the 2020 Schrems II judgment, which I will say a few words about to help him with some more information. As I said earlier, the UK Government are committed to ensuring high data protection standards and supporting UK organisations and businesses is very important. The UK Government are reviewing the details of the judgment in the case referred to earlier—Schrems II— and considering its impact on data transfers for UK organisations.

As he may know, the UK Government intervened in the case, arguing in support of standard contractual clauses—so-called SCCs—and are pleased that the court has upheld this important mechanism for transferring data internationally. Therefore, the UK may independently take steps to address issues arising from the judgment after the transition period. The Government are working with the Information Commissioner’s Office to ensure that updated guidance on international data transfers will be available as soon as possible. The Government will continue to work with the commissioner’s office and international counterparts to address the impacts of this particular judgment.

The Government have been clear that FTAs do not provide a legal basis for the cross-border transfer of personal data. I make it clear that this will be controlled by our domestic data protection legislation. Moving forward, as we develop our trading relationships with other countries, our approach must be transparent and inclusive. We are working closely with a wide range of stakeholders to develop our priorities around trade and intellectual property, including the devolved Administrations, industry and consumers. Getting the right outcome for UK inventors, creators and consumers will be key. Given that we are seeking to replicate commitments in existing EU trade agreements, I do not believe that producing further reports, in addition to those we already publish, alongside each signed agreement is necessary or proportionate.

I now turn to an important part of this debate. Amendment 34 is intended to prevent the Clause 2 power being used to implement continuity agreements which do not comply with existing domestic and international obligations regarding the important subject of the protection of children and other vulnerable user groups using the internet. We heard passionate speeches from the noble Baroness, Lady Kidron, and others, including the noble Baroness, Lady Ritchie. I want to be clear, perhaps echoing the words of the noble Baroness, Lady Kidron, that this Government are, and must be, committed to making the UK the safest place in the world to be online and for children to be online. We carefully consider any interaction between trade policy and online harms policy in trade agreements. I can confirm that we stand by our online harm commitments, and nothing agreed as part of any trade deal will affect that.

In 2019, as the noble Baroness and others will know, the DCMS published the online harms White Paper, with the initial government response in February this year, setting out the direction of travel. The DCMS will publish a full government response to the White Paper consultation later this year. This will include more detailed proposals on online harms regulation and will be released alongside interim voluntary codes on tackling online terrorist and child sexual exploitation, as well as abuse content and activity. The DCMS will follow the full government response with legislation, which is currently being prepared and will be ready early next year.

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 are themselves fully compliant with such obligations. By transitioning these agreements, we are reaffirming the UK’s commitment to international obligations on protecting young and vulnerable internet users, which is so important.

The noble Baroness, Lady Kidron, asked whether the agreement between the EU and the US on data services should be considered in the scope of the Bill and be able to be rolled over. The scope of the Bill applies to either FTAs or agreements that relate mainly to trade between a partner country and the EU signed before the UK left. She will know that we are in negotiations with the US on an FTA, as I mentioned earlier, and we will bring forward separate legislation on that if required. I hope that that gives her enough reassurance at this stage.

Our continuity agreements will safeguard, not undermine, our domestic protections and international commitments regarding online protection of young and vulnerable internet users. In the light of those reassurances covering all the amendments, I hope that Amendment 15 will be withdrawn and that noble Lords will not press Amendments 16 and 34.

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

My Lords, I have had two requests to speak after the Minister from the noble Lords, Lord Fox and Lord Stevenson. I now call the noble Lord, Lord Fox.

[Lord Fox (LD)]

I thank the Minister for his response on Schrems II, which was very helpful. I would like just one further detail. Can he confirm that the advice, when it comes, could concern where databases are domiciled? If so, the advice needs to be made available earlier rather than later so that companies are able to comply. Therefore, can he give some indication of the timetable for when business might get some guidelines so that they can work out their new data management policy?

[Viscount Younger of Leckie (Con)]

Absolutely. That is a very fair question from the noble Lord. As he will expect, I do not have a timeline, so the best thing for me to do is to look at his question and write to him, giving whatever information we have from the department, together with any extra information that might be helpful to him.

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

I have also had a request from the noble Baroness, Lady Kidron, to speak after the Minister, but I now call the noble Lord, Lord Stevenson.

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

My Lords, I apologise if I did not make myself very clear when I was speaking earlier, but the Minister did not seem to answer my point. If we are talking about the standards set for any rollover agreements covered by this legislation and—as we hope to persuade the Government—the future free trade agreements that are still to be negotiated with other countries, what standards of child protection can the Government assert they will use if legislation that is going to contain that has not yet been put into primary legislation? For example, he mentioned the commitment in a White Paper, and presumably there will have been legislation, on an issue that deals with child harm. It deals specifically with the question of whether or not the future basis under which this would be done is a duty of care. These are quite important and quite difficult concepts. If they are not there they do not give us a standard. If they are delayed, or in some way changed as they go through the parliamentary process, they may not eventuate into a situation which can be used. My question remains: is this not an issue where it would be helpful to the Government to have something very clear on the face of the Bill that dealt with that particular issue of child harm, which as we have heard, is so important to the people of this country?

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

I now call the noble Baroness, Lady Kidron.

[Viscount Younger of Leckie (Con)]

I believe I should respond to the noble Lord, Lord Stevenson, if I may. The noble Lord makes a very fair point. It is fair to say that this is, just by dint of the coincidence of timing, tied up with all the work we are doing on the online harms White Paper. He will know that more detailed proposals on the regulations will be released alongside the interim voluntary codes. We need to look at this in tandem with what we are doing with free trade agreements. That is the answer I can give to him at the moment. Again, I will write to him with more details on this because it is a very important subject.

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Amendment 16 not moved.

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

We now come to the group beginning with Amendment 17. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.

Amendment 17

Moved by