Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Debate between Lord Purvis of Tweed and Lord Lansley

Report stage
Tuesday 16th January 2024 Lords Chamber

[Lord Lansley (Con)]

I am grateful to all who took part in this very short debate, and in particular to the noble and learned Lord, Lord Hope, and the noble and learned Baroness, Lady Butler-Sloss, for their contributions on the legal aspects.

Unfortunately, I have not had an opportunity to look at the reference my noble friend refers to elsewhere in the GI regulations. That was not an aspect of this to which he referred in his letter of 10 January. He referred to the concept of the tort of passing off as a justification for it. My problem was that putting something in a statute that is justified by reference to a common-law definition seems problematic, since one might be assumed to be trying to create a statutory definition. I did not think the definition existed; I may be proved wrong about that.

I am just hopeful that it is not the case that one use of an unregistered trademark before the date of a GI means that it is established by use. It must be defined somewhere else and I hope that that is what my noble friend is suggesting—that “established by use” in relation to a GI is somewhere codified and defined. That would establish a degree of protection, and I hope we do not subsequently encounter circumstances in which the inclusion of this language causes a problem in relation to those who are responsible for distinguishing between registered and unregistered trademarks.

I remember, and my noble friend will recall from the debate we had in Committee, that we set out to secure GI recognition in the UK-Japan economic partnership agreement. We need to get on with it. Equally, in the UK-Australia deal we set out to secure protection for our GI indications. But it was made clear in the Australia deal that we would do so only in so far as, and to the extent that, the European Union secured protection for its GIs, and I am not sure that we have made the progress there that we should have.

These are very important aspects of our potential trade advantage and, if we are going to maximise our trade benefits, we need our geographical indications to be protected and we need to be using them in export markets. I should declare my registered interest as co-chair of the UK-Japan 21^st Century Group. I will be in Japan at the beginning of next month and I will make it my business to ask about what progress we, and they, are making in protecting our GIs in Japan. For the moment, we thank my noble friend—

[Lord Purvis of Tweed (LD)]

Before the noble Lord sits down, I am unaccustomed to supporting the Minister in these areas, as he and the House are aware, but, having glanced at legislation.gov.uk, regulation 2019/787, regarding the relationship between trademarks and geographical indicators, does indeed have the definition of “established by use”. I am not a lawyer, as I very willingly admit, but if the Government have had the good sense to transpose what we had in the EU legislation into domestic legislation, then that might satisfy the noble Lord.

[Lord Lansley (Con)]

I am grateful to the noble Lord, and it may indeed satisfy me as long as we do not abolish it any time soon. With all those helpful comments from noble Lords, I beg leave to withdraw Amendment 3.

Amendment 3 withdrawn.

Amendment 4

Trade (Australia and New Zealand) Bill

Debate between Lord Purvis of Tweed and Lord Lansley

Report stage
Tuesday 14th March 2023 Lords Chamber

[Lord Lansley (Con)]

Going back for a moment to the point the noble Lord made earlier about the sale of food to public bodies and these procurement chapters, does he recognise that the purchase of food locally by schools, hospitals and the like will almost certainly not be, as I judge it, within the definition of covered procurement and not above the threshold; and, therefore, the procurement chapters, in so far as they extend procurement opportunities to Australia and New Zealand providers under this Bill—and under the Procurement Bill—really would not be relevant to that local provision of food?

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord; he knows I respect his work on this area very much. I would like the Minister to confirm that that will be the case, because I am not convinced. I see the noble Baroness, Lady Neville-Rolfe, in her place. She was kind enough to have a meeting with me about it. I am not yet convinced, because of the elements within the Procurement Bill which will require there to be no discrimination for any of the treaty countries for public procurement in this country, that what he is arguing for, which is effectively a carve-out, will in fact be the case. My understanding is that under the Procurement Bill, we are unable to discriminate against any of the treaty suppliers. I am not sure that a public body in this country would be able to discriminate. I hope the Minister will be able to clarify that point.

The reason this is relevant and why I quoted the then candidate for leader of the Conservative Party’s commitment to 50% of public procurement in this country being local is that I do not know how that squares with what will be the legal requirement under the Procurement Bill that we are then unable to discriminate against Australian and New Zealand produce which will enter the market. I do not know how that squares.

I am simply asking the questions, because we have not had more meat on the bone, if that is not too inappropriate an analogy, about what has been published as a government commitment and is in the Procurement Bill. If the noble Lord has any other answers, I am happy for him to intervene on me. I do not know how he knows how this might be squared. I do not at this moment. That is why part of our agriculture sector is also questioning how these two commitments will come together. The different sequencing of this Bill and the Procurement Bill is relevant. Because it also sets the precedent for Canada and Mexico, with new produce coming in, and if these are gateway agreements for CPTPP, we are looking at potential competition with all CPTPP members for public procurement of produce. If you are a public body in the UK looking at cost-effective procurement of food for schools or hospitals and you are unable under the Procurement Bill to discriminate against Australian or New Zealand produce or that from any CPTPP country and state that there is local producing, similarly, I do not know that it is matched.

I hope that, at this late stage, the Minister can offer some reassurance. I hope that he is able to explain how these commitments to 50% of procurement can be matched, as well as give further reassurances, specifically on the impact on tenant farmers and biodiversity. There are genuine concerns here, I do not think they will go away and we need to offer that reassurance to these sectors, which are so vital to our rural economy.

Trade (Australia and New Zealand) Bill

Debate between Lord Purvis of Tweed and Lord Lansley

Committee stage
Monday 23rd January 2023 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I will speak to Amendments 6 and 19 in this group. The questions posed by the noble Lord, Lord Lennie, in moving Amendment 1 are very sensible. I look forward to the Minister’s reply.

According to today’s press, we are now 15 years behind on the commitment that we would reach £1 trillion of trade within a decade. It is now estimated that the target set by the coalition in 2012 will not be achieved until beyond 2035. This highlights the fact that we are starting to see the consequences of the significant non-tariff barriers introduced by this Government over recent years. Therefore, it is vital that mechanisms are as streamlined as possible for procurement and the rest of the trade agreements.

Amendment 6 is designed to probe the discrepancies in threshold levels in the Government’s procurement legislation, currently going through the House of Commons and which has been through scrutiny in the House of Lords. It probes why they are different for those seeking procurement opportunities for Australia as compared with those seeking them here at home. If you are a business seeking to bid for procurement in the UK, you now have to operate under quite a markedly different approach from that if you are looking for procurement opportunities within Australia.

I welcome the Minister’s letter to noble Lords, which he promised at the end of Second Reading and fulfilled. It highlights what we knew: that, factually, there is a difference in the threshold levels. The letter simply states that Australia was not willing to have the same thresholds as us, and so we simply said that we would have its thresholds. What did we get in return? If this is a concession to Australia then surely we got something in return as far as access is concerned.

The report on the agreement from the Australian Parliament’s treaties committee makes for interesting reading, as does our own report from the House of Lords International Agreements Committee. The Australian report is 225 pages long and can be summarised as: “We got a good deal.” Our House of Lords report, which is 36 pages long, can be summarised from our point of view as: “No, we didn’t.”

The Australian report highlights the fact that the Australians wanted to maintain their levels of thresholds—that was very clear. Thresholds are important; a considerable amount of scrutiny that we did on the procurement agreement was about whether the procurement would be below or above the threshold. If it is below the threshold, the reporting mechanisms, the contracts approach, and the way that schemes or pooled contracts can be put together are different. So we now have a higher rate for Australia.

At Second Reading, I raised the fact that this was done by subcentral contracting bodies. The Minister’s letter to me says that in effect I was wrong in saying that Australia was unique, because Canada has the same approach as Australia’s—but not for subcentral levels. The agreement that we rolled over for Canada for the CETA agreement, has the lower threshold, and we have now gone to the higher one. We are simply trying to find out what we got in return for providing a concession to Australia over the threshold levels. The higher threshold means that there will be extra complexity for businesses.

Amendment 19 is simply a probing amendment on the point that was raised earlier on the Procurement Bill by the noble Lord, Lord Lansley, which was simply trying to seek protections. If we try to change this Bill and its mechanisms for the good, those changes will be protected by the Procurement Bill, which, as the Committee will be aware, will automatically repeal this one. We have the rather ridiculous situation that we are in Committee for a Bill that will be automatically repealed by a Bill that is going to go into Committee in the House of Commons. This is a mechanism to try to protect any of what we do. On that basis, I hope the Government might be minded to accept Amendment 19, or indeed they might have their own mechanisms or commitments, so that we are not wasting our time in Committee.

[Lord Lansley (Con)]

My Lords, three important issues arise from the limited number of amendments here, and I want to say something about each of them.

I shall start with the last amendment, Amendment 19. The noble Lord, Lord Purvis of Tweed, referred to the debates on the Procurement Bill, in which many of us participated. We are in a situation where the Procurement Bill will in due course repeal this legislation. We can see the timing a little more readily now: all being well, we should complete the passage of this Bill and I hope it might reach Royal Assent if not by the end of February then certainly very early in March.

The Procurement Bill in the other place still has a substantial amount of work to be done, and doubtless it will return here with amendments. That being the case, I suspect it would be rash to assume that it would pass before late May at the earliest, especially since the Session is to run longer. The Procurement Bill brings its provisions into force two months after the Bill itself is enacted, so in my view we could be in July at the earliest, and maybe in August or September, before the relevant provisions and the repeal take effect.

That being the case, there seems to be a perfectly good rationale for this Bill being used to create the necessary regulations. One matter that we did not get quite clear in our previous discussion is that this Bill, once enacted, can be used to make regulations. Those regulations will subsist even though this Act will subsequently be repealed by the Procurement Act, as it will become. So there is a purpose in passing the regulations in the meantime. There is a particular purpose, which I will not trespass into, relating to the relationship with Scottish legislation. The fact that this Bill can be used to make those regulations is particularly helpful.

The noble Lord, Lord Purvis of Tweed, knows that I agree with the proposition that, if an amendment were to be made in this House to this legislation, it would be inappropriate for it to be automatically repealed. However, we secured assurances from my noble friend Lady Neville-Rolfe to the effect that the Government under those circumstances would make whatever changes might be necessary to the Procurement Bill in another place. I am hoping that my noble friend Lord Johnson of Lainston will have a similar briefing and a similar reassurance to give us.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am very grateful to the noble Lord; as usual, he is extremely perceptive. The point I am seeking to make is that, under the GPA, subcentral and regional bodies are covered. We have existing arrangements under the previous EU rules for subnational bodies, and we currently have subnational special drawing rights with the EU. My question is: what impact will the higher threshold that we have conceded to subregional bodies within Australia have on those businesses? I fear that it means a great deal of complexity, so, for us to say back to the Government that they should be having discussions with Australia to bring the thresholds down, rather than just give up, would make sense for British businesses.

[Lord Lansley (Con)]

Well, obviously, if we were in the course of further discussions through the Joint Committee arrangements on the free trade agreements to modify the agreements so as to reduce the thresholds, I imagine that there would be some benefit to our businesses—but that is not the position we are in at the moment. I certainly do not see that we can arbitrarily and unilaterally impose different thresholds through our legislation. The Minister will have to confirm if I am correct, but I did not understand it to be the case that the WTO general procurement agreement gives us existing access to entities in Australia’s procurement below the federal level. I stand to be corrected if I am wrong about that, and I have no doubt that the Minister will have the briefing to tell me if I am wrong. For those purposes, I just do not agree with Amendment 1 as moved.

Professional Qualifications Bill [HL]

Debate between Lord Purvis of Tweed and Lord Lansley

Tuesday 9th November 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, I hope noble Lords will forgive me, but I want to intervene briefly in the debate. I am Lord Lansley, of Orwell, which is nowhere on the route that has been mentioned; it is not even between the locations in Scotland and Boscobel. You could not even go via Orwell to get to Boscobel, which is where I hope we are going to end up.

I shall say just a couple of things. First, I was interested in what the noble and learned Lord was saying about the Constitution Committee and the legislative consent Motion process, but I have to say, in relation to this Bill, that we completed Committee stage at the end of June and I tabled my amendments in the early part of July. We are now in November. There has been no lack of opportunity for the devolved Administrations to see precisely what the Bill is intended to do, what the remaining issues of controversy might be and what the intended outcome looks like. Frankly, they have had every opportunity to consider a legislative consent Motion and to have passed one, so if they do not then I do not know why not.

Secondly, I am grateful to my noble friend Lady McIntosh. She was looking at why we are consulting with regulators over the powers to make regulations in Clauses 1, 3 and 4—that is in Amendment 13, which I support—but not other clauses. As it happens, I agree with my noble friend, or at least I hope I do, that Clauses 5 and 6, in so far as they are about tidying up the statute book, are not really appropriate for consultation processes; they are essentially just working out the legal statute-book consequences of the Bill.

However, I suddenly realised that there is a regulation-making power in Clause 10 that the Government are not intending to consult upon. I thought, “Hang on a minute, I thought I agreed with the Government because I tabled an amendment at the beginning of July to press the Government on the question of consultation with regulators”, so I looked back at it. Of course I subsequently withdrew it when the Minister tabled his own amendment, but when I looked at it I realised that what I said originally was, and I quote myself:

“Prior to making regulations under this Act, other than those made under sections 5, 6 and 18”—


that is, Clauses 5 and 6 relating to retained EU law and Clause 18 on commencement—

“the appropriate national authority must consult such regulators of regulated professions as appear to the authority to be likely to be affected by the regulations.”

So my amendment would have included consultation on the regulation-making power in Clause 10, which relates to the duty to make information available to overseas regulators. I freely confess that I had not noticed the difference and that gap. While I very much support what the Minister has tabled in Amendment 13—I very much endorse it because it largely achieves what I was hoping for in the amendment that I tabled way back in July—I ask him to explain the process of thinking by which Clause 10 has been left out.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lord Bruce in his questions. As other noble Lords have indicated, this is an opportunity for the Minister to give a clear position on the situation regarding legislative consent Motions. If the Government are not able to provide an assurance that there will be LCMs during the passage of the Bill, we will be in the uncomfortable position of now having a number of Acts where there have been no LCMs and the Government will have considerable regulation-making power over devolved regulators if the Westminster Government believe that the devolved Government are not acting. This could create those sensitive areas where there are devolved regulators which will then be instructed under regulations to change their procedures for areas where the UK Government will have considered that there is unmet demand but the devolved Administration may not, and there is no vice versa equivalent. Therefore, if there is no LCM process, and the Government will be acting over the top of the devolved Administrations, this will be a potentially problematic area, not least in those professions that are not likely to be exempted under these areas. So transparency will be helpful, if the Minister could give that indication.

Regarding consultation, this will be a consistent theme that the House will return to time and time again. We did so on the Internal Market Bill, and here, and, until the common frameworks are in a state of readiness—and I understand that they are quite far away from such a state—we will have to press the Government on how operations will cover the whole of the UK. Could the Minister give clarity on that?

National Security and Investment Bill

Debate between Lord Purvis of Tweed and Lord Lansley

Committee stage
Tuesday 16th March 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, this first group consists of two amendments, both in my name and both relating to the interaction of the export control regime with the investment screening regime. Amendment 39 would insert into Clause 11, which relates to the exceptions to the general definition of the control of assets, a power for the Secretary of State by regulation to prescribe where the control of a qualifying asset is not to be regarded as controlled under this regime. It would give the Secretary of State freedom to define circumstances where assets that are to be exported and are controlled by the export control regime would not be regarded as controlled for these purposes.

Amendment 87 is a bit more straightforward in that it would introduce a new clause requiring the Secretary of State when making final orders under the Act to take account of the effects of the Export Control Act and related provisions on that qualifying asset. Your Lordships will note in the Bill an interaction with the Competition and Markets Authority regime, but no similar provision is made for the interaction of the export control regime with this regime.

The Bill offers no substantive recognition of the interaction between the export control regime and assets under this regime. That is surprising, because paragraphs 3.85 and 3.86 of 2018 White Paper state—please forgive me, it is a fairly long quote:

“After the introduction of the reforms described in this White Paper, the export control regime will remain the key means of restricting trade in strategic goods where this might raise national security risks … The Government wishes to ensure that the new reforms are as proportionate as possible, and are not used instead of other, more targeted or proportionate policy levers. As such, where national security concerns relate solely or primarily to the export of goods, the Government expects that the export control regime would remain the primary means of protecting national security.”


The purpose of these amendments is to ask whether that is still the Government’s policy. If it is, why is it not reflected in the structure of the powers? Should it not be included in the Bill to make that clear?

The Minister may say that since the export control regime is under the control of Ministers, they have all the administrative means at their disposal to bring the two regimes together, whereas there is a separate statutory and independent agency in the Competition and Markets Authority. But that would not be transparent to those affected. I know from talking to people who would be affected that there is a long-standing relationship with the export control unit of the department and an understanding of how its powers are used. To the extent that that transparency and predictability are maintained explicitly, I think it would greatly assist those who are to be affected by these powers.

It is surely the case that Ministers, when making a final order, will take account of where qualifying assets are the subject of an export control order. That being so, I am looking not only for an assurance from the Minister that it is the Government’s intention to use the export control regime as the principal means by which the export of qualifying assets is controlled but for a recognition of this in some form in the legislation, to enable all those affected to be aware of the relationship between these two regimes and for it to be transparent. I therefore urge my noble friend to consider the merits of Amendment 87, which would introduce a new clause that simply did that without placing any constraint on Ministers. I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the noble Lord for bringing forward these questions in such a characteristically forensic manner. The Committee will be aware that I have not participated in it so far, and I therefore intend to be brief and shall raise only a small number of questions seeking clarification from the Minister on the interaction with the Export Control Act 2002 and on an associated issue.

It has been fascinating listening to the contributions in Committee up to this point about some of the opacity in the interaction with the other legislation and, indeed, how the investment security unit will operate within the department that will cover export control licence applications, which will also make considerations on national security grounds and how they interact. It was interesting to note that in the House of Commons, on the Prime Minister’s Statement on the integrated review, Julian Lewis, the chair of the Intelligence and Security Committee, criticised the Prime Minister for not allowing there to be full scrutiny of how the investment security unit will operate. I know that my noble friend Lord Fox will raise this later and will lead on it.

How will that interaction be on the export licence regime? One area where there have been calls for the Government to have annual reports on the operation of this legislation was interesting, given the fact that under the Export Control Act 2002 there are annual reports, and there is clarity as to how many applications and the various different criteria for refusal or putting on hold applications. An interesting aspect of the Export Control Act 2002—and I reread the Explanatory Notes to the legislation after seeing the amendment from the noble Lord, Lord Lansley—is that, on one reading of the Act, which does not go into the same level of detail for defining companies as this legislation, it refers to people being part of the licence, for them and their knowledge and for their providing technical assistance. There certainly can be companies that operate almost exclusively on providing technical assistance, in the technical services industry in particular; they are covered by the Export Control Act for their work that they will then carry out, and the Government take a view as to whether that is something that should be considered as an export.

Secondly, there are companies that operate within hybrid technologies, as the Export Control Act indicated, for technologies and technical assistance, and controls can be imposed for the transfer of technology from the UK and by UK persons, anywhere and by any means. It is interesting that Section 4 of the 2002 Act says that,

“‘trade controls’ …means the prohibition or regulation of … their acquisition or disposal … their movement”,

and associated activities of any goods. The Minister may say that that means specific items, goods or technologies of a company but not the company itself—therefore, this legislation covers the company. It would be helpful if the Minister could indicate something about the interaction.

It struck me that, if any Government indicated that a certain technology or good required prohibition from being exported or their trade in that to be regulated, that would be considered under criterion 5 for national security grounds. What if the interaction of that company is then the subject of a review under this legislation, or indeed that parent company is taken over, or there are shares that meet the trigger requirement? What is the status of the export licences that that company has—because the Government have already indicated that they have sought and maybe made a decision on national security grounds? It is worth pointing out that we know from the annual report that last year there were 80 refusals on national security grounds under criterion 5 in the UK—it indicates for the national security grounds of the UK, the EU and other friendly countries. In the last set of discussions, it was interesting to hear about the interactions with decisions that other friendly countries make. The Export Control Act makes determinations for that.