Trade Bill

Lord Purvis of Tweed Excerpts

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

I entirely agree with the conclusions of the Constitution Committee. The purpose of these two amendments is to ask the Minister to explain, in his summing up, what the Government’s thinking is about why this is purely presumptive and what prevents them from putting this clearly on the face of the Bill. It may be appropriate to press this to a vote today. I would prefer that the Government agree with me, and the Constitution Committee of the House, and bring forward their own amendment at Third Reading. I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure, as always, to follow the noble Baroness. I have a great deal of sympathy with the intention behind these amendments, which also relate to the fact that, from January onwards, the Bill will have to operate for agreements it was never intended to implement. The House does not need reminding that it was the Government’s categorical position in the past that there was no doubt that all continuity agreements would be signed by March 2019, then summer 2019, then the end of 2019—it goes on. The reality is that there are currently 13 countries outside the EU with which we will be trading on terms less favourable than we did before, because those agreements have not been rolled over. The status of those agreements, with regard to this Bill, is now in a degree of limbo. For example, we know that our agreement with Canada is a temporary continuity agreement because we expect the negotiations to roll on regarding an almost immediate successor agreement. It is justifiable for the Government to clarify what status that has with regard to these powers.

Some of the agreements that we did reach have run out of time for full ratification, so they will have to be provisionally applied. That means that the Bill will be used for implementing agreements as well as adjusting ones that are made and ratified, ones that have been made but not yet ratified, and ones to be made and to be ratified. This is a very broad scope for these delegated regulatory powers. In Committee, the Government said that these delegated powers had a purpose. The Minister was quite clear that they are simply for technical adjustments to things, such as the names of quangos or certain terminology, that you would not wish to reopen a treaty for. That has a degree of sense; they should be limited. However, we are in a different position now, even from where we were at the beginning of Committee, with the full knowledge that there will be very many agreements that have not been successfully rolled over and will have to be implemented, some of which will be initiating new agreements at the same time.

I am, therefore, glad that the noble Baroness has again asked the Government to be clear what the intended purpose of these powers is. We want to avoid them being used to implement agreements. We also want to completely avoid them being used for implementing part of a border operating model that we know the Government are not ready for. We want the reassurance that any implementation of a response to questions for our export procedures which are still outstanding will not be used under the Bill. It would reassure the House if the Minister gave the assurance that the intended purpose of these delegated powers remains technical and limited.

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

My Lords, I am grateful to the noble Baroness, Lady McIntosh of Pickering, for raising this issue and, through her, to the Law Society of Scotland for reminding noble Lords of some of the detailed points which we often ignore when we put down amendments, particularly at this stage of a Bill’s progress. As the noble Baroness said, and as was picked up by the noble Lord, Lord Purvis of Tweed, some rather unforeseen issues are now arising, particularly in relation to the rollover agreements which were originally intended to be done and completed by 31 December but which, for a variety of reasons, are not going to be. Some of them are being done under emergency power provisions; some will not be done at all. We need to have on the record from the Minister where exactly these will fit in the structure of this Bill. I look forward to his response.

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Moved by

[Lord Purvis of Tweed]

6: After Clause 2, insert the following new Clause—
“Parliamentary approval of trade agreements
(1) Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement.(2) If a decision has been made by the Secretary of State to commence negotiations towards a free trade agreement, a statement must be made to both Houses of Parliament.(3) Negotiations for that trade agreement may not proceed until the Secretary of State has laid draft negotiating objectives in respect of that agreement before Parliament, and a motion endorsing draft negotiating objectives has been approved by a resolution of each House of Parliament.(4) Prior to the draft negotiating objectives being laid, the Secretary of State must—(a) consult each devolved authority on the content of the draft negotiating objectives, and(b) produce a sustainability impact assessment including, but not limited to, an assessment of the impact of the proposed negotiating objectives on human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(5) A sustainability impact assessment under subsection (4)(b) must include—(a) a statement on how the proposed trade agreement will advance the meeting of the Sustainable Development Goals; and(b) a plan to maintain UK levels of statutory protection on the protection of human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(6) The Secretary of State must inform both Houses of Parliament, and any Select Committee charged by the relevant House with scrutinising trade negotiations in a manner and to an extent agreed with the Committee, of developments in the negotiations, but this does not affect the power of the Secretary of State to conduct negotiations as the Secretary of State considers appropriate.(7) For the purposes of subsection (6), “developments” means—(a) a pause in negotiations;(b) an ending of negotiations;(c) the conclusion of a negotiated round of discussions;(d) the decision to agree in principle an agreement; or(e) other necessary aspects of the negotiations of which the Secretary of State considers it necessary to inform Parliament.(8) The United Kingdom may not become a signatory to a free trade agreement to which this section applies unless a draft of the agreement in the terms in which it is to be presented for signature by parties to the agreement has been laid before, and approved by, a resolution of each House of Parliament.(9) Before a Minister of the Crown moves a resolution to approve the text of a proposed free trade agreement in either House of Parliament, the Secretary of State must— (a) consult each devolved authority on the text of the proposed agreement, and(b) lay before Parliament an independent impact assessment of the agreement including, but not limited to, the requirements in subsection (4).(10) In this section—“devolved authority” has the meaning given in section 4(1) of this Act;“free trade agreement” means any agreement which is—(a) within the definition given in section 4(1) of this Act, and(b) an agreement between the United Kingdom and one or more partners that includes components that facilitate the trade of goods, services or intellectual property;“UK levels of statutory protection” means levels of protection provided for by or under any—(a) primary legislation,(b) subordinate legislation, or(c) retained direct EU legislation,which has effect in the United Kingdom, or the relevant part of the United Kingdom, on the date on which the sustainability impact assessment is produced.”

[Lord Purvis of Tweed (LD)]

I rise to move Amendment 6, and I look forward to hearing the noble Lord, Lord Lansley, on Amendment 12, because these amendments concern an issue that has been a focus of Committee and a major part of today’s debate on Report. I listened carefully to the Minister’s response to the debates we had in Committee on scrutiny of agreements. There seemed to be some areas of agreement across the House, and I hope I am accurate in outlining what I consider them to be: it is the Government’s prerogative to make a decision to open, conduct and conclude negotiations; the Government believe the scrutiny powers of the European Parliament and the role of British MPs in agreements made by the European Union were effective; Parliament needed a greater role here at home; the Constitutional Reform and Governance Act process is insufficient in itself to allow for proper scrutiny and accountability. This last point has been agreed by everybody, including the Government, who have been at pains to say that they acted “above and beyond” the requirements of CRaG on the Japan EPA—in fact, the noble Viscount referred to that in an earlier group. It is fair to suggest that any Government who go above and beyond the legislative requirements they have to have regard to might point to those requirements being insufficient.

Outside groups as varied as the National Farmers’ Union and the BMA have been in touch with noble Lords asking them to support Amendment 6, and I am grateful for their support. It shows the breadth of interest in updating and improving parliamentary accountability for agreements that go far beyond tariffs and quotas, as we have stated repeatedly during the passage of the Bill.

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[Lord Grimstone of Boscobel (Con)]

I would like to thank noble Lords for the courteous way in which this debate has been conducted. I will begin with Amendment 6, in the name of the noble Lords, Lord Purvis of Tweed, Lord Stevenson of Balmacara, and Lord Curry of Kirkharle, and the right reverend Prelate the Bishop of St Albans. During the passage of this legislation, I believe there has been a general acceptance on all sides of the importance of Parliament’s being able to effectively scrutinise trade policy, including our new FTAs with the likes of the US, Australia and New Zealand. We have consistently ensured that there is sufficient scope for Parliament to do this.

The Government have taken a number of important steps, and it is pleasing that noble Lords recognise this and have supported us. For example, we have shared extensive and comprehensive information with Parliament ahead of negotiations with the US, Australia, New Zealand and Japan. On 12 October, I made a Written Ministerial Statement setting out the transparency and scrutiny arrangements for specific international trade deals, starting with Japan. Today, I have made a further comprehensive statement setting out arrangements for trade agreements with the United States, Australia and New Zealand and the UK’s proposed accession to the CPTPP. I believe this statement adds further weight to the enhanced procedures we have already outlined. I was pleased that the nobel Baroness, Lady Hayman, picked up on and welcomed the reference to environmental impacts, and grateful for the pragmatic comments about the statement from the noble Earl, Lord Sandwich. I was also grateful for the comments made about the statement by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Stevenson.

I believe that our approach to transparency, and openness to scrutiny by Parliament and stakeholders, is at least as strong as any other Westminster-style democracy, such as Canada, Australia and New Zealand. I can assure the noble Lord, Lord Purvis, that nothing should be read into the omission of South Africa from this list.

Your Lordships have drawn comparisons between our approach and those taken by the EU and US. They are more similar to each other with their federalised arrangements, than they are to the UK. The European Commission negotiates on behalf of the interests of the 27 member states and its scrutiny arrangements reflect the specific and unique structure of the EU. The same applies to the US. The role the US Congress plays in scrutinising international trade agreements is a product of the constitutional make-up of the United States. I suggest it would be wholly inappropriate for the UK, with our own unique constitutional framework, to import the regime of another country, particularly one where the constitutional circumstances differ so markedly.

We have frequently repeated our commitment to ensuring a transparent trade policy and we have delivered on this time and time again. We have made significant progress in this space. We have listened to concerns from parliamentarians and have taken actions to address them, including putting the Trade and Agriculture Commission tack on to a statutory footing, which will be discussed in the next group of amendments.

We have kept Parliament regularly updated on the negotiations as they have progressed. We have done this via Written Ministerial Statements to update Parliament on key milestones and we have held regular, open briefing sessions for all parliamentarians throughout the negotiations on our FTAs. We have engaged closely with the International Trade Committee and the International Agreements Sub-Committee, including writing to the chairs of both committees at every key stage and facilitating private briefings for them with Ministers and our chief negotiators. My noble friend Lord Lansley, as a member of the IASC, has seen us in action on this and has complimented us on it. We will continue to share confidential treaty text on the FTAs that are currently under negotiation, and on the CPTPP when it comes down the track, with the ITC and the IAS. We will ensure that they both have time to produce a report on any such concluded agreement before it is laid before Parliament under the CRaG procedure.

I hope noble Lords will also realise and accept that we have demonstrated this with the Japan agreement. I accept absolutely the importance of this, as described so cogently by the noble and learned Lord, Lord Goldsmith. Both of the committees’ reports on Japan have now been published, with, if I may say, both committees praising the engagement that they have had with my department. The IASC report notes that

“DIT has been a constructive partner in helping to determine the right processes by which parliamentary scrutiny of the Government’s new function of negotiating trade deals can be facilitated.”

In addition, the ITC and IASC reports congratulate the Government on their achievement in securing the Japan agreement, noting the warm welcome that it has had from witnesses in their inquiries.

I turn to the devolved Administrations. The Government have always been clear that we want to engage meaningfully with them on our trade policy. As Counsel General for Wales, Jeremy Miles MS, recently confirmed in his evidence on 19 November to the Welsh Affairs Committee, the DIT has listened to the devolved Administrations. We have established a new ministerial forum on trade and we have used it to consult the DAs on all of our trade agreements. The forum has met three times already this year and will meet for a fourth time later this week. I can assure the noble Baronesses, Lady Finlay of Llandaff and Lady Ritchie of Downpatrick, and the noble Lord, Lord Wigley, that our desire to engage with the devolved Administrations is both deep and sincere, and we will continue to do so. I believe that putting these arrangements into statute would upset this balance. While in practice, the Government engage with the devolved Administrations on international trade policy, it is important to remember that this has legal status as a reserved matter. We have to take care to preserve this status.

I turn to impact assessments. The Government are committed to an inclusive and transparent trade policy. Scoping assessments are published to assess analytically the impacts of new FTAs in advance of negotiations, and following the conclusion of negotiations currently in train, a full impact assessment will be published prior to implementation. This will be presented to Parliament, alongside the final treaty text, together with an explanatory memorandum to aid parliamentarians in their scrutiny role. Of course, this is in addition to the CRaG procedure. We will also ensure that the impact assessments are independently scrutinised by the Regulatory Policy Committee.

In drafting the amendment, I welcome the fact that the noble Lord has tried to address our point at previous stages of the Bill; namely, that the negotiation and making of treaties, including international trade agreements, is a function of the Executive held under the royal prerogative. However, despite the drafting of subsection (1), that

“Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement”,


I am afraid that the amendment does exactly that because it places restrictions on the ability of the Government to enter into treaty negotiations and to ratify treaties. With all due respect to the drafters of the amendment, it starts by saying one thing and then it goes on to say another. I am grateful to my noble friends Lord Lansley and Lady Noakes for also spotting that and pointing it out to your Lordships.

Giving Parliament a veto over our negotiating objectives would curtail the royal prerogative, whatever the preamble to the proposed new clause says, and would limit our flexibility to negotiate in the best interests of the UK. I know that noble Lords are aware that the Constitution Committee of this House recommended in its 2019 report on the scrutiny of treaties that mandates for treaties should not be subject to parliamentary approval.

Ultimately, if Parliament is not content with a trade agreement that we have negotiated, it can—like for the majority of all other treaties—raise concerns by resolving against ratification under the statutory CRaG procedure. Under that, as noble Lords will know well, Parliament can delay ratification indefinitely, giving it, in effect, the power to block ratification. The Government are committed to a transparent trade policy with comprehensive engagement with Parliament. We have already demonstrated this and we will continue to do so. The Government have moved a long way in developing comprehensive scrutiny arrangements that are appropriate to our constitutional make-up.

I turn now to Amendment 12 in the name of my noble friend Lord Lansley. I thank him for the amendment. He and I have already had constructive discussions on the topic, and I think it is fair to say that we are in mutual agreement on the importance of strong parliamentary scrutiny and the transparency of our trade deals.

On implementing our trade deals, noble Lords will be aware that it has long been UK practice not to ratify international agreements until any necessary implementing legislation has been passed domestically. This is a well-established process that the FCDO has followed historically for treaties for centuries in order to ensure that the UK will not be in breach of the treaty when it enters into force. The Government have no intention of deviating from this process in relation to our new trade agreements. However, we believe that putting this on to a statutory footing would be inappropriate and would deprive and restrict the Government’s flexibility in the conclusion of our international trade agreements, as well as curtailing the treaty-making prerogative.

I know that my noble friend has expressed concerns about the level of detail in the explanatory memorandums that are laid alongside treaties. I agree with him that Parliament should know clearly how the Government intend to implement any commitments made in an FTA and what legislation Parliament will need to pass in order to implement it domestically. I would argue that, in part, we already do this. For example, in paragraph 5 of the Explanatory Memorandum to the recent Japan agreement, we outline how the agreement will be implemented in domestic legislation. It includes details on how commitments in specific policy areas, such as tariffs, procurement and technical barriers to trade, will be implemented, and where legislation will need to change. I can say without reservation that I would be more than happy to explore with my noble friend how we might make this clearer and more useful to parliamentarians. However, I do not believe that this is an issue which is best resolved in legislation.

In respect of facilitating debates on FTAs as part of CRaG, we have been clear that the Government will facilitate requests for debate on the agreement—including, of course, those from the relevant Select Committees—with the only caveat being that it is subject to available parliamentary time. As many noble Lords know far better than I, it would not be appropriate for the Government to guarantee debating time in the way suggested in this amendment. As I am sure my noble friend with his ministerial experience can appreciate, any Minister would like to be able to guarantee debating time. However, the pandemic and other matters have shown us the need to remain flexible in how we manage precious parliamentary time.

I assure noble Lords—I said this in Committee and willingly repeat it now—that it is not the Government’s intention to shy away from scrutiny. I believe that scrutiny gives us better free trade agreements; the Government want these agreements to be examined by parliamentarians and effectively scrutinised. I hope that noble Lords do not mind my saying that the Government’s practical record on this has been good. Requests for debates have been met, most recently on our FTA with Japan, which was debated in your Lordships’ House on 26 November. I am very pleased that 31 speakers participated in that debate, which followed on from the six earlier debates on our continuity agreements that we facilitated. I hope that these will be the first of many debates on our forthcoming agreements that the Government will facilitate, where—I repeat—parliamentary time allows.

This debate has allowed me to outline the extensive steps that the Government have taken to ensure that Parliament has an effective scrutiny role in the constitutional context of the UK. This includes our long-standing commitments to provide comprehensive information to Parliament in advance of starting negotiations—beyond what many other partner countries undertake—along with conducting thorough engagement throughout negotiations. In addition, we have further enhanced arrangements at the end of negotiations. On this point, I thank noble Lords for helping us to shape these arrangements; I am sure that we will continue to shape and improve them as we go forward. Noble Lords have helped to improve the process of FTA scrutiny and, frankly, persuaded the Government to bring forward their amendments on the Trade and Agriculture Commission. The EU International Agreements Sub-Committee of your Lordships’ House persuaded the Government to ensure that it is given time ahead of the start of the CRaG period to produce a report on the agreement. This will ensure that your Lordships are better informed and able to scrutinise our new agreements more effectively.

As many noble Lords have expressed over the course of this Bill, this is the first time in nearly 50 years that the UK has undertaken trade negotiations; I hope that noble Lords recognise that my officials are not doing a bad job of it. I believe that we should utilise the flexibilities afforded to us under our constitutional arrangements to ensure a robust scrutiny process. I repeat the Government’s commitment to continue to ensure that these arrangements remain fit for purpose, working in close collaboration with the relevant committees.

I hope that I have been able to address your Lordships’ concerns adequately. I therefore ask my noble friend Lord Lansley not to move his amendment and the noble Lord, Lord Purvis, to withdraw his amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for a very thorough response; he will find out how persuasive I have found him in a moment after I draw out two or three points from the debate. I am grateful to all those who have taken part and, indeed, for the support that I have received, including from the noble Lord, Lord Stevenson of Balmacara.

I have been a Member of this House for seven years. While the noble Lord was making his remarks, I reflected on the fact that if the noble Earl, Lord Caithness, supports a liberal amendment and the noble Lord, Lord Lansley, persuades a Green Peer, it is pretty evident that there is some cross-party backing. We can rely on the noble Baroness, Lady Noakes, to be consistent in her position. I am grateful to her. She always makes me think in these debates, even though she does not often persuade me. I have a copy of the Written Ministerial Statement, which I can share with her if she likes; I am afraid that it is rather heavily annotated, which will not surprise her. I think the point that she made was ably addressed by the noble Earl. Yes, these are our first trade negotiations in 50 years, but almost by definition, as the noble Earl and the noble Baroness indicated, these agreements are very different in nature from those of 50 years ago. They are primarily concerned with non-tariff measures rather than tariff measures.

I agree with the Minister that our approach must suit our own unique constitutional arrangements. With regard to that, the Minister should reflect that the prerogative power is not a static thing as part of those constitutional arrangements. It has been demonstrated that there have been changes in the use of that prerogative power over many years. It used to be a prerogative power that Parliament had no say in the deployment of troops, for example; this is now recognised to be rather different. I assure the Minister as the drafter of this amendment that amendments do not get tabled in this House without the beady eye of the Public Bill Office ensuring that one clause does not contradict another. So I believe in the robustness of this amendment, but I am grateful for his advice.

If I were arguing that, if Parliament is not content with the Trade Bill, it can raise any concerns it may have over a trade deal by resolving against ratification and delaying any implementing legislation indefinitely, I think that the noble Baroness would be frustrated with me for proposing such an argument. What would it say if a sovereign entity—the sovereign Government—signed an agreement then Parliament used a mechanism to delay the implementing legislation indefinitely? That would massively undermine the sovereignty of the Government that had signed an international agreement—yet that is the Government’s position in the Written Ministerial Statement; I quoted from it. It is not a fit-for-purpose mechanism; it is not an appropriate way of considering how we approve trade agreements.

Secondly, I refer to the point made by the noble Lord, Lord Lansley. These procedures are not very good; I would love him to have a right of reply to the Minister too. I will not endeavour to speak for him, nor would he want me to, but the noble Lord’s question—with regard to the amendment—about the ability of Parliament to make a decision before the signature is deliberate. In trade agreements, we know that there is a finalisation process and then, often, an initialling process. The initialled text will then usually go to the Parliament before there is full signature by the sovereign country. It is no accident that, at that stage, in Japan, which went through the process on 24 November, the law then authorised the Japanese Government to put their formal signature on the agreement. If there are problems, the time to highlight them is not as we have it—after the event, where a treaty has basically been made—after which we have the power only to delay the implementation. The right time is at the time of signing. This allows a judgment to be made to avoid problems down the line if there is still a great deal of unease with the agreement that has been signed.

This brings me to my last point. I am glad that the Minister referenced the next group. One of the points that he was at pains to make—indeed the noble Lord, Lord Lansley, made a slight reference to this—concerned whether we are now putting a great deal of restriction on this power. As I mentioned before, the prerogative power has not been set in stone over the years, nor have the restrictions on any British Government over how they conduct or conclude negotiations. No British Government would go into any negotiations that would breach human rights agreements—the ECHR, for example. There are international obligations that we are bound to accept. We are a sovereign Parliament and the prerogative power, as the Minister would suggest, should be completely unfettered. Well, there is quite a high level of fettering about that.

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I would also be very interested in hearing the Minister’s response to a number of queries about Amendment 36. It would be helpful if he could explain the reasons for the various issues that I have raised and, in particular, if he would reconsider the membership of the TAC as far as human life and health are concerned. I thank the Minister once again for his openness.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Lord. It is clear that the government amendments the Minister is bringing forward today have had a long gestation period—over many years—and the noble Lord, Lord Curry, played a significant role in developing the higher standards which we now take for granted in many respects but which we cannot take for granted in our trading relationships. We still need the existing level of protection.

I commend noble Lords who have shown great endurance and persistence and, ultimately, a degree of success in their work. Among them, I include very much my noble friend Lady Bakewell. Like her, I feel that, having sat for many hours on the trade Bills and the Agriculture Bill, it is nice to see, finally, the Government accepting and then acting on a case that has been made powerfully. In that regard, I welcome the way in which the Minister brought forward the amendments and his openness in discussing them.

He will be aware of the response that I and my noble friend gave, which is reflected in our amendment. My noble friend outlined that in clear terms, and I will simply refer to it before I close. However, before doing so, I want to say that I agree with the point made by the noble Lord, Lord Grantchester, about the motives behind the Government putting this advisory body, but not others, on a statutory footing. We know that that is probably because of the strong campaigning that took place, and that is to the credit of the campaigners, who pressed hard for it. However, the Government have been slightly coy about saying why the agriculture advisory group will be put on a statutory footing but not the trade advisory groups that cover key sectors of the British economy: agri-food; automotive, aerospace and marine; British manufactured and consumer goods, telecoms and technology; chemicals; life sciences; the creative industries; investment; transport services; professional advisory services; and financial services. All those areas are covered by trade advisory groups. What interaction will there be when the trade agreement is being prepared but before it is laid before Parliament under the CRaG process? Why, uniquely, does a report on the elements in Section 42 of the Agriculture Act 2020 have to be received from the Trade and Agriculture Commission but not from the other trade advisory groups?

If the intention behind this is, as the Minister will surely say, to enhance scrutiny, how will we know the views of the trade advisory groups for those other sectors of the economy at exactly the same time as the report from the Trade and Agriculture Commission is presented to Parliament? Perhaps the Minister could make that clear. The situation could be resolved quite straightforwardly: he could state at the Dispatch Box that the Government intend to make sure that the other trade advisory groups are able to submit, and we are able to look at, their views on the impact assessments of an agreement.

I hope that the amendment eloquently outlined by my noble friend does not fall foul of the castigatory remarks from the Minister that my amendment received on the last occasion. In this amendment, I have simply used the Government’s wording. I quite liked the wording of their amendment to the internal market Bill—consulting the devolved authorities on appointments to the office of the internal market. In fact, I liked it so much that I thought it should be used in this Bill too. If the Government appoint members of an advisory body for internal United Kingdom trade and consult the devolved authorities, they should also consult the devolved Administrations when appointing members of an external trade advisory body. That would be quite straightforward, and for the Minister to accept that quickly when he winds up at the Dispatch Box would not create any great problems.

My wider question on the period of three years for the life of the Trade and Agriculture Commission is a good one to ask, as that period slightly jars with the five-year period in this Bill for the regulation-making powers. We have the slightly odd situation whereby, under the regulation-making powers in this legislation, the Government have five years but the Trade and Agriculture Commission has only three. Why there is that disjoint, I simply do not know. It would make sense if, at the very least, the lifetime of the regulation-making powers was the same as that of the Trade and Agriculture Commission.

The amendments on consultation should be straightforward. I am not being facetious but I hope the Minister can provide reassurance on the Government’s intention to consult before the appointments are made. I am not sure whether the amendment in my name and that of my noble friend will allow the noble Earl to have two or two and a half cheers. I think that they enhance this. I am grateful to him for allowing me to explain to my noble friend Lord Fox what peely-wally means. I hope that, with these amendments, the government amendments will be less peely-wally and that maybe there will be an improvement.

[Lord Grimstone of Boscobel (Con)]

My Lords, this group consists of government amendments, together with amendments from my noble friend Lady McIntosh of Pickering and the noble Lords, Lord Stevenson of Balmacara and Lord Purvis of Tweed. I will try to set a good example by keeping my comments tight and to the point, and I will of course write to noble Lords whose comments I do not do justice to in my response. I am convinced that one thing I have learned in taking this Bill through your Lordships’ House is that it is not possible to please all the people all the time in relation to the contents of the Bill.

I turn, first, to the amendments in the name of my noble friend Lady McIntosh. Although their purpose and intent are similar to those underpinning the government amendments before your Lordships—to ensure that high standards of imports into the UK are maintained—my noble friend’s amendments go further. They would create a body responsible for setting criteria for assessing whether provisions in trade agreements on UK imports meet or exceed domestic standards on a very wide range of issues. This would, as a result, set restrictions on what goods could be imported under trade agreements.

It is not appropriate for the UK to impose our standards on other countries and prohibit imports of goods that do not meet our standards where there is no basis to do so. Not only could doing so put us in breach of our WTO obligations but, as we spoke about in Committee on a similar amendment, such action has the potential to harm the economies of developing countries and some of the poorest people in society, and to increase protectionism.

The amendment is unnecessary as the standards that it seeks to protect are already enshrined in domestic statute and the Government will uphold them. Any changes to existing standards would, of course, require new legislation to be scrutinised by Parliament. I believe that the Government have taken decisive action to uphold our commitments to high standards. Extending the remit of the TAC to areas such as human rights would run the risk of duplicating the functions of trusted bodies such as the Equality and Human Rights Commission. I am sure that that is not something my noble friend would wish.

Similarly, my noble friend’s amendments apply to all trade agreements, including continuity agreements. Instead, the TAC should focus on only new free trade agreements and agreements signed with continuity partners from 2023 onwards. The UK’s continuity FTAs, as I have said previously, roll over existing EU arrangements that we now wish to hold on a bilateral basis. Those agreements were scrutinised under EU scrutiny procedures and simply replicate existing EU trade agreements, with necessary adjustments to reflect the UK context.

The Government have listened carefully to the concerns of the House with regard to independent scrutiny of FTAs. I am very pleased to bring forward Amendments 31, 34, 35, 36, 49 and 50, which will put the Trade and Agriculture Commission on a statutory footing. This step is integral to boost scrutiny of our new free trade agreements as we move on from continuity.

The current TAC had a different function. It was established as an independent advisory board in July 2020 to advise and inform the Government on their future trade policy. It aims to ensure that animal welfare and environmental standards in food production are not undermined, that consumer and developing country interests are represented and that new export opportunities are secured for producers in all parts of the UK. The amendments today will not impact the role of the current TAC, which will still produce a report by February 2021. I put on record that the Government are thankful for the commitment, time, investment and hard work that current TAC members and representatives of its working groups have put in, and we commend the success it has had to date. We believe that the action we are now taking to put the TAC on to a statutory footing will be an important development in boosting the scrutiny of the Government’s trade policy.

Amendment 34 places the Secretary of State under a duty to seek advice from the TAC on matters set out in Section 42 of the Agriculture Act 2020, excluding human life and health—I know that this point is of concern to a number of noble Lords; I will come back to it in a moment—in preparing a report to Parliament to accompany relevant free trade agreements laid under the Constitutional Reform and Governance Act procedures. I particularly reassure the noble Lord, Lord Grantchester, that the omission of human health from the remit of the TAC does not in any way diminish the importance that we will attach to it. It is just that, when we looked at the composition of the TAC and its range of duties, it seemed that expert advice relevant to human life and health would best be sourced separately from other, more expert bodies in that field. The report under the Agriculture Act will include both advice that comes from the TAC and advice that comes from other relevant bodies in relation to human life and health. The duty will be exercised, but not through the TAC.

Section 42 of the Agriculture Act places a duty on the Secretary of State to report on whether the measures in certain future FTAs applicable to trade in agricultural products are consistent with maintaining UK domestic statutory protections for human, animal or plant life or health, animal welfare and the environment. The TAC advice will inform that report. It will be laid separately before Parliament as an independent report, but it will not be the totality of the report under the Act.

The role of the statutory TAC will therefore represent an evolution of the current TAC. The statutory TAC’s purpose—to provide advice under Section 42 of the Agriculture Act—is set out in Amendment 31, and the TAC advice will ensure independent expert scrutiny of new free trade agreements. The request for advice by the Secretary of State and any guidelines will be published, and advice supplied by the TAC will be laid before Parliament. That is the role of the TAC. It is not a standing body producing advisory reports, as one might have deduced from the existing TAC; it is an independent expert body scrutinising new free trade agreements as and when they come along.

Amendment 31 creates a power for the Secretary of State to appoint members and, of course, a duty to have regard to the desirability of appointing members with expertise specific to the role of the TAC. The Government will work to ascertain the range of skills and knowledge required for the commission, noting that additional skills and expertise might be required and that the list in the amendment is not, of course, exclusive. The TAC must have those skills but the Secretary of State is free to decide that it might need additional skills other than those on the list.

I can absolutely affirm to your Lordships that the Secretary of State will make appointments in line with all the usual public law principles applicable to all ministerial decision-making and within the confines of the new statutory provisions. These will be direct appointments and will follow established protocols, demonstrating the department’s commitment to a robust process and eliminating any conflicts of interest. The steps required as part of this process will be reflected in the TAC’s terms of reference.

As a non-incorporated expert committee—I might just dwell on those words for a moment—the commission will provide the Government with independent external advice to deliver additional scrutiny of free trade agreements. It will comprise technical experts who can analyse complex treaty text and provide robust and balanced advice to Parliaments. Members of the TAC will be chosen to have knowledge of standards across the whole of the UK. To my noble friend Lady McIntosh, I say that what we are establishing is not a body with a CEO that produces annual reports; it is a group of experts who have a specified task to do, which is put in front of them every time a new FTA comes down the tracks.

Amendment 34 will require the TAC to be reviewed every three years. Of course, I can see from this debate that there is perhaps a misunderstanding among noble Lords about what exactly that means. In my experience, it is good practice for these bodies to be reviewed after a period of time, and three years is not an uncommon period. However, it in no way means that the body will be wound up after that time, because the TAC must stay in place unless the Government bring forward secondary legislation via the affirmative procedure to repeal the TAC’s provisions. There is a review every three years, but only if that review comes forward with recommendations that both Houses of Parliament accept can the TAC be discontinued.

I want completely to reassure noble Lords about the consequences of Amendment 36, which, I fear, has been misunderstood by Members. Amendment 36 is entirely dependent on Amendment 34. Only if the Amendment 34 process every three years resulted in a decision by Parliament that the TAC should be wound up would the provisions of Amendment 36 come into effect to pass the necessary statutory instruments to repeal the TAC. Amendment 36 does not stand alone so it could not be used for the Secretary of State to wind up the TAC on a whim; that would be a ludicrous proposition. I apologise if noble Lords have found the drafting of the amendment confusing in that respect, but I can give them complete reassurance on that matter.

I believe that the role of the statutory TAC complements other measures that the Government have taken to further enhance scrutiny of new FTAs and ensure that the views of the agricultural sector are taken into account during the negotiations process. Indeed, this will not be the only independent scrutiny that our new free trade agreement will receive: the International Trade Committee in the other place and our own IAC will also, of course, provide critical scrutiny and advice on our negotiated deals, just as this took place with the Japan agreement. I reassure noble Lords that the Government remain committed to listening to and engaging with consumers, farmers and industry in negotiating our free trade agreements, and we value the input that they provide in this process.

It is important to remember that our expert trade and advisory groups, representing businesses, consumers and civil society, already provide advice during free trade agreement negotiations—this is an essential difference from the TAC—and we will not seek to duplicate that important work. In particular, there is a dedicated agri-food trade advisory group, in which the agri-foods sector is represented; it does an excellent job of representing that sector.

I believe that these amendments will help the UK safeguard our current standards of agricultural products, put British farming at the heart of our trade policy and ensure that our agricultural sector is among the most competitive and innovative in the world. I hope that noble Lords will be able to support the amendments brought forward by the Government.

On the amendment tabled by the noble Lord, Lord Purvis of Tweed, as I have already mentioned, the TAC will be an expert committee; members will be independent experts, appointed as individuals, not as representatives of academia, business or other organisations for which many of them may work. As I said before, the Secretary of State will make appointments in line with established protocols, following the usual public law principles applicable to all ministerial decision-making. The statutory TAC will represent an evolution of the current TAC to reflect its purpose as set out in Amendment 33. Of course, the membership will be considered accordingly. We are committed to ensuring that only expertise will drive the appointment of new members. It is critical for the success of the TAC that the advice is independent and underpinned by the expertise listed in the amendment.

As I have said before, the central purpose of the TAC is to improve scrutiny of FTAs prior to their ratification. Therefore, as I said earlier, it is related to a reserved matter: the ratification of free trade agreements. As such, the TAC amendment does not engage the legislative consent process under the Sewel convention. While we acknowledge, of course, that the work of the TAC will touch on the devolved matter of agriculture, this does not alter the fact that its function relates to a reserved matter.

However, the UK Government recognise that, as agriculture is a devolved matter, the devolved Administrations, of course, have a legitimate interest in the TAC’s work. Therefore, the Minister of State for Trade Policy has written to them, seeking their views on the statutory TAC, and he will discuss it with them at the ministerial forum for trade later this week. I hope that noble Lords understand that the commitments that we have made, when pulled together, create a further commitment to produce a report on standards in FTAs in relation to specific concerns, as outlined in Section 42 of the Agriculture Act. Through our amendment, we are proposing to put the Trade and Agriculture Commission on a statutory footing—I sense that noble Lords welcome this—and to provide advice in relation to this. I therefore ask my noble friend to withdraw Amendment 7.

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The extraterritoriality of our human rights legislation is part of the terms of reference of that independent review of our Human Rights Act. In the months ahead, this should be the subject of that independent review and we will come back to it. Inevitably, I suspect, we will have legislation on human rights, and that is the time when we should consider precisely how this Parliament should take that responsibility forward.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Lord. I remember very clearly the debate that he led in Committee. I think it was just the two of us and the Minister in the Chamber, shortly before midnight, when we debated a framework for human rights and trade. That is the point that he was trying to make, and I agree with him very strongly. That is why I commend the noble Lord, Lord Collins, for tabling this amendment to try to persuade the Government that there will be support if they bring forward a trade and human rights policy that we can engage in and work on with them. That is an appeal. I commend the noble Lord for bringing the amendment forward and I am delighted to have added my name to it.

With regard to a list of countries, we are yet to roll over an agreement with Algeria, which Freedom House has classified as “not free” or similarly with Cameroon, Egypt or Eswatini, which are also classified “not free”. We would not engage in this with Syria—although if we were rolling over all agreements, that could include an agreement that did exist but is not in place because the country is under sanction. We have arrangements with the Palestinian Authority, which Freedom House indicates is “not free”; Zimbabwe again is “not free”.

We have separate debates over Turkey and Vietnam. When it comes to Serbia and Bosnia-Herzegovina, we know that those two countries have had year-long disputes over the definition of genocide within the international tribunals. I agree to an extent that, as the noble Baroness, Lady Noakes, indicated, this is a grey area. That is not, however, a reason not to progress into a framework to continue to seek improvements.

I hope the Minister does not mind if I remind him that he has twice been referred to in this way as a private citizen and business leader. As chair of a British financial company he commended the authoritarianism of President Xi over protests in Hong Kong, stating that this ensured economic continuity in Hong Kong and was in the UK’s interest. He has now migrated from business leader to political leader. In many respects, that is illustrative of the challenges that we all face about choices that we make in the business community as well as the political community—it is illustrative of this wider debate.

I serve on the International Relations Committee, as does the noble Lord, Lord Alton. We said in our report on the Middle East that the British Government were on the wrong side of international human rights law in continuing to sell arms to Saudi Arabia as the Yemen tragedy ensued. We have high standards in this country and I believe we are a force for good around the world, but we should not delude ourselves about how others see us: inventor of concentration camps, holder of weapons of mass destruction and declarer of illegal wars. I love my country, but I am not totally rose-tinted about our history.

Still, we have had a proud record post war as the noble and learned Lord, Lord Hope, said. We have helped to shape international norms on human rights, in which we can take particular pride. One of the theatres where we have done so was in the European context when we were a member of the European Union. The noble Lord, Lord Collins, quite rightly said that a common approach on the use of political clauses was agreed in the European Union in 2009, to ensure that there would be systematic references of human rights clauses in all agreements going forward. I will come back to that.

I want to make it very clear what I am calling for, so that the Minister understands that there is no equivocation: a human rights and trade policy which has proper indicative measures and triggering mechanisms, so that we can replace what we had within the European context and have a distinct United Kingdom approach for all trade. The noble Lord, Lord Lansley, referred to proposed new subsection (6). I am pleased that the amendment outlined the breadth of the type of agreements that we have. I hope that the noble Lord, Lord Alton, does not mind me saying that Amendment 9 would have been strengthened if it had been more specific about the areas which we will be covering.

The noble Baroness, Lady Noakes, asked about what proposed new subsection (5)(d) means by some of those

“other … violations of human rights … including … the International Covenant on Civil and Political Rights.”

One example is that we hold strongly to the view that countries should not have the death sentence for people who have a mental illness, or for children. That is within the ICCPR and there should be no disagreement that it is a serious human rights violation. If such a violation is being practised, the question is what impact that should have on our trading relationships.

This is all about the trade relationships that we have through agreements, whether it is a full free trade policy or one of the other agreements outlined in proposed new subsection (6). Those all invariably involve preferential access for that third country to our economy: preferential either because there is less tax or because they have access to our markets or partnerships which we would deny to others except, in general, the WTO. As my noble friend Lady Smith asked: what value do we put on that preferential access? One part is economic; the second part is the value that we have for our wider rights.

I return to the common approach in the European Union and the use of political clauses. The agreements with third countries included human rights and they were all under what was termed “essential elements clauses”. Free trade agreements would be linked to the political framework agreements with that country, encapsulating all the agreements that we have. If they did not exist in the framework, this would be included specifically in a free trade agreement. I would be interested to know whether the Government believe that this is of merit too. Should we include our human rights element in our trading agreements, linked with the other partnership agreements that we have with that country? Labour rights have been included in specific trade and sustainable development chapters. I tried my hardest in Committee to get the Government to state their position on the inclusion and sustainable chapters in future agreements. They did not do so; I hope that the Minister can be clear about it today.

The fact that there has been a standard approach since 2009 meant that, during negotiations on agreements with countries, the EU was able to proactively assess the overall positive and negative impacts on trade agreements, including human rights, and the totality of the human rights record and domestic legal frameworks of that country. That informed the negotiations with those countries. It is not necessarily a case of seeking to impose a legislative framework on that country, but we assess what it is. At the very least, we determine how many international obligations, from labour rights to a whole set of legislative requirements on human rights, they have domesticated into their law. In the European context, it is interesting how many countries revised their domestic legislation during the process of negotiations with the EU, and domesticated international obligations—something they had not done up until then.

Up until that point, most of the agreements had the ability to either pause or suspend. It is only in the recent EU-Canada agreement that, for the first time, there is a specific mechanism where, if there is a gross violation of human rights, or non-proliferation, that could serve as grounds for termination of the entire agreement. We will get into this in the next group, but given that this is the first time, I would like to know from the Minister whether that element has been replicated in the UK-Canada agreement? If it has, it would be the first time that the UK has done this. If the Government have not replicated it, that is, in my mind, a very clear signal that they are departing from the approach that we had led up until now.

I hope that the Government will listen carefully to calls from across the Chambers. We need a UK Government impact assessment tool for the UK that is cross-departmental, including the Department of International Trade, the FCDO and BEIS, so that we can take a considered approach to human rights clauses in our trade agreements, sanctions regimes on human rights from our Foreign Office, and, potentially, remedial acts from the Department for Business. Without a proper impact assessment tool, it is very hard for us to consider this. We need mechanisms and we need frameworks. I hope noble Lords do not mind me saying so, but I believe that this is more important at this stage in this Bill than simply referring to individual examples of human rights abuses around the world that we know, to our shame, have existed.

I hope that the Government will respond positively to Amendment 8 and, before Third Reading, set out clear draft human rights clauses for future trade agreements, draft trade and sustainability chapters, and the mechanisms for escalating concerns around the implications of human rights, and the mechanisms that will then be triggered for us to judge not only whether we believe that the relationship should be questioned but what mechanisms can be put in place. At the end of the day, all of this is about the people and the victims. Unless we have a clear framework and a clear position from the Government, we are letting those people down in the countries with which we trade.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Collins of Highbury, for his Amendment 8. It touches on an important issue that, as noble Lords know, this Government take very seriously and to which I would like to assure the House I am personally committed.

Before I address the amendment specifically, I want to emphasise that the Government share the concerns underpinning the amendments before us today. The UK has long supported the promotion of our values globally and remains committed to our international obligations. We are clear that more trade does not have to come at the expense of human rights. I can confirm to the noble Lord, Lord Collins, that in rolling over continuity agreements we are seeking to deliver continuity of effect for agreements with all our partners. I can confirm that we are not seeking a continuity agreement with South Sudan.

In answer to the noble Earl, Lord Sandwich, I am sure he appreciates that I cannot comment on agreements presently still under negotiation. I have noted the point of my noble friend Lord Lansley on the ongoing human rights review, and I will make sure it is considered. I can assure the noble Lord, Lord Purvis, that we seek to ensure that human rights are recognised and protected in all our free trade agreements. This includes clauses in our trade agreements with many developing and emerging markets, suspensive powers in our trade preferences regime, and recourse to trade levers through our sanction policy.

Turning to the amendment in hand, tabled by the noble Lord, Lord Collins, I am sure the noble Lord will be pleased to hear that the Government are already delivering on some of the commitments that his amendment seeks. For instance, the amendment seeks publication of an annual report. My department has already committed to publish an annual report on our programme of trade activity, and we can certainly explore whether that report could be used for the purposes envisaged here.

However, there are a number of concerns and legal risks raised by the amendment from the noble Lord, Lord Collins, which means that we are unable to support it. It would constrain the royal prerogative powers to negotiate, ratify and withdraw from treaties. Of course, curtailing the royal prerogative is not something that the Government would do lightly.

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[Lord Purvis of Tweed (LD)]

My Lords, this has been a powerful debate and rightly so, given the seriousness of the issue. This Wednesday, 9 December, is the day that the United Nations will mark the adoption of the genocide convention. It is also the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. I wish to declare an interest in that I chair the UK board of Search for Common Ground, an international peacebuilding charity. Just before the lockdown I was in northern Iraq, where I have been more than 20 times, and Sudan, to which I have gone on many occasions. I have met the victims of the egregious crimes that have taken place in those two countries. Just last night, I was on an online video call with people in Baghdad who are still living with the situation from the north of Iraq which the noble Lord, Lord Alton, introduced. I commend his work in this House and the way that he introduced this group of amendments.

My noble friends Lady Northover and Lady Smith have indicated our support from these Benches and I need not repeat any of their arguments. We will work with the noble Lord and others, as indicated by the noble Lord, Lord Collins, in the previous group, to address some of the areas that have been referred to in the debate. For example, if it is a matter of the courts, which courts, and how do they interact with our treaties and agreements, both domestic and international? Would there have to be clauses and agreements, as the noble Baroness, Lady Kennedy, said, or is the noble and learned Lord, Lord Hope, correct in saying that mechanisms are already in place? This can be discussed and identified.

Also, is this to be linked purely with preferential terms, which the noble Lord, Lord Cormack, indicated, or is it for all trade, as has also been indicated? There are consequences for both of those issues, and yes, they have to be agreed—as well as the interaction between our domestic courts and the mechanisms, which has not been raised so much. Genocide is of course one of the crimes under the International Criminal Court, which is different from those which can be triggered by the genocide convention. How do they interact with each other? These are all issues that I agree can and should be resolved through discussions.

Finally, I want to repeat to the Government from these Benches a clear call for a trade and human rights policy statement where a UK framework of atrocity analysis which can be integrated into our trade policy is agreed. It should be something where officials in the DIT, the Foreign and Commonwealth and Development Office and BEIS should be able to see proper links between judicial measures, human rights measures, trade agreements and our trading relationships. In the absence of a proper framework with atrocity analysis, we will not be doing what I believe that all in this House want the UK to be, which is a leader in the world, not for deciding on the hierarchy of suffering but on preventing the worst excesses of human rights abuses. We need the structures and the frameworks in our legal and trading methods to allow us to do that and I hope that the Government will finally respond positively to this debate.

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the House for too long because I made my comments in the previous debate about my support and that of the Opposition for this amendment. I thank the noble Lord, Lord Alton, and particularly my noble friend Lady Kennedy of The Shaws for their interventions.

I will single out two contributions. One is that of the noble and learned Lord, Lord Hope, who has presented us with very clear arguments about why this argument should go to the Commons and why the Commons should consider it. The other is that of the noble Lord, Lord Forsyth, because he is right: we have to respond to the government mantra that we have heard so many times: “It has to go to a competent court”. If that is the response, then, as the noble Lord, Lord Forsyth, said, let the Commons decide. That is what this House can do tonight.