Trade Bill

Lord Stevenson of Balmacara Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th March 2019 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow my noble friend, who speaks with great authority on this issue. In following him, I will use one example to highlight the importance of this amendment in maintaining the spirit and including the contents of the agreement. I use the example of today’s announcements on the proposed tariffs that may be applied on a no-deal Brexit and the Written Ministerial Statement on how that will impact on the Northern Ireland border, already referred to by the noble Lord, Lord Kerr. I was grateful for an opportunity to have a conversation with the Minister about this today.

The proposals for the tariff regime, which would be an increase of 489 tariff lines on goods from the European Union and would have to have some form of mechanism across the border of Northern Ireland, need to be seen in the context of operating within a year. This is not simply an emergency or temporary proposal, and a year is a long time in the context of some of the statistics referred to by the noble Lord, Lord Hain. There were 46 million vehicle crossings at the 15 Northern Ireland border locations in the last year, according to the Northern Ireland statistics agency—3.8 million of those were goods vehicles, nearly three-quarters of deliveries involve small businesses, and two thirds of cross-border trade is bilateral agri-food and intermediate trade. That means these are small businesses—as already referred to, 80% are low-value—and often individual businesses trading on a self-employed basis, but every one of those people will have to be registered with an economic operator’s index number, or EORI. Only one-sixth of all businesses have so far registered, so the system, even as published today, is not operable, but new processes and procedures have to be carried out. The Government are giving no advice to Northern Ireland businesses on that. They believe a unilateral action, against the spirit of the Good Friday agreement and the spirit of an all-island economy, is the way forward.

How can it be a unilateral approach if tariffs will not be applied to goods coming from Ireland, but will subsequently be applied if those goods are part of intermediate trade with Great Britain? Liz Truss, the Chief Secretary to the Treasury, was asked at lunchtime where the checks would be carried out. She said that she believed it would be at “a border in the UK”. This is the Chief Secretary to the Treasury today. What does that mean? If one is tolerant, one may forgive her not knowing the terminology of Great Britain and the United Kingdom, but that is unforgivable, given that she said she will vote for a no-deal Brexit in the other place this evening. What kind of consultation is being carried out, not just with the Irish Government—which, as my noble friend indicated, is urgent—but with businesses on both sides of the border that will be operating?

Linked with the long-term basis is the fact that the unilateral approach is not WTO-compliant, unless the Government trigger one element in WTO processes on public morals. There are some dispensations that can be provided, in extremis, on the basis of public morals that can set aside a system where we will not apply tariffs from one country, if we have no intention of applying them to the rest of the world. It would be a retrograde step if the Government activated a public morals clause at the WTO on a situation as delicate as that on the Northern Ireland border. The Government are setting aside security and border integrity as the basis of the unilateral no-deal proposal. The Government should see sense and support this amendment, because it provides the framework for these consultations to be carried out.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a short but poignant and moving debate. We have reached back into history and tried to articulate fears and concerns.

[Lord Mackay of Clashfern (Con)]

If the noble Lord would allow me, I entirely agree with the difficulties associated with the border, and the need for a soft border, but I am not sure that this amendment achieves that. It would not directly affect the no-deal situation at all. It describes what I regard as a soft border; it is what I would like to see and what the Prime Minister’s deal, with the backstop and so on, is intended to do. But we are now dealing with a different situation. I would love to see a secure, soft border between Northern Ireland and Ireland, but I am not at all sure that the amendment secures that in any way whatever, although I would be glad to have help on that. It would not be as a result of an agreement between the European Union and the UK if there was no deal; no deal is the very opposite of an agreement between the EU and UK.

The other problem is that Ireland’s relationships with countries no longer in the EU would be regulated by the EU. I should be glad of some explanation from the people who know all about this of exactly how the amendment achieves the result I and they wish to achieve.

[Lord Stevenson of Balmacara]

My Lords, that is a well-made point. It is probably better if the mover of the amendment, my noble friend Lord Hain, responds to it in detail, but I think the wording is clear. Indeed, as my noble friend said, this takes us beyond the no-deal exit problem because it is for the future. It is meant to govern future arrangements across the border between the UK and Ireland. My noble friend might have more detail on it. I do not think the noble and learned Lord’s point destroys the arguments that have been made. I understand where he is coming from, but the issues we are talking about are for all time. They are important to build on our history and practice up to this point.

The noble and right reverend Lord, Lord Eames, spoke very powerfully, getting across the idea that if there is an opportunity for this House and, indeed, any other place to strengthen the spirit of the Belfast agreement, it should be supported. This is an opportunity to do so. He said that it was about not just the history, but the future of those who work and operate in Northern Ireland and Ireland, and about trade and opportunities. The combination of peace and prosperity, which, after all, is what we all seek at all times, surely is not something the Conservative and Unionist Government will really whip their members to vote against. I hope the Government will be able to accept the amendment and allow us to move forward.

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, I add my thanks to all noble Lords who have contributed to this short but very profound debate. In particular I thank the noble Lord, Lord Hain, for moving the amendment. I think the whole House recognises the important role he played while Secretary of State to help that process gather ground into fruition. It has been a proud part of successive Governments that we cherish and nurture that hard-won peace. It is why we said right at the outset in the future relationship White Paper that the prime objective would be that,

“the UK and the EU meet their commitments to Northern Ireland and Ireland through the overall future relationship: preserving the constitutional and economic integrity of the UK; honouring the letter and the spirit of the Belfast (‘Good Friday’) Agreement; and ensuring that the operational legal text the UK will agree with the EU on the ‘backstop’ solution as part of the Withdrawal Agreement will not have to be used”.

That was very much at the heart of our objective. We are absolutely committed to the Good Friday agreement and that part of it.

I do not take the point the noble Lord, Lord Bruce, made about division out of context, but I am sure he would recognise that the whole thrust of the Government’s and the Prime Minister’s negotiations, and what the withdrawal agreement is about, is seeking to secure the type of border arrangements that my noble and learned friend Lord Mackay referred to and that the noble Lords, Lord Hain and Lord Alderdice, and the noble and right reverend Lord, Lord Eames, and others seek to work towards. Peace on the island of Ireland between Northern Ireland and the Republic of Ireland, and the Good Friday agreement—the partnership between the United Kingdom and the Republic of Ireland in this context—surely must be the red line above all red lines that we need to preserve.

That is why there is the amendment in the EU withdrawal Act making that explicit, which the noble Lord, Lord Kerr, was instrumental in securing. That has been a key part of what Her Majesty’s Government have done when engaging in negotiations on these matters, which was brought to fruition in the withdrawal agreement. Were the withdrawal agreement passed yesterday in another place, we would not need this amendment or this discussion. These are matters for the extremely unwelcome event of no deal.

Some specific points have been raised, which I will try to address. I hope that will help noble Lords in deciding what to do with this amendment. The noble Lord, Lord Purvis, said that this has been emerging over 12 months—an increase of 480 in the current position with the EU. The Government have had to find a way of ensuring that there is no border, from the UK perspective, in the spirit of the Good Friday agreement. Any checks that must be carried out for non-revenue purposes will be done away from the border. HMRC is very familiar with carrying out such checks on that basis.

My noble friend Lady Altmann asked how the plan works to supply work with suppliers. These are unilateral measures—they are not for goods moving from Northern Ireland to the Republic of Ireland, which would be subject to the EU’s common external tariff and single market rules. The only way to avoid a hard border is to commit to entering into discussions with the European Commission jointly to agree long-term measures to avoid one.

The noble Lord, Lord Purvis, asked whether there will be a border in the UK. The Government do not intend to construct infrastructure at the Northern Ireland land border. We will also not carry out any new checks on goods moving from Northern Ireland to Great Britain. HMRC will assess the risks and take a risk-based approach to investigating allegations of breaches of those rules. The noble Lord also asked about the status in terms of the WTO—whether it breaches the MFN model. We are confident that the policy is in line with our WTO obligations, taking into account the unique set of social, political and economic circumstances of Northern Ireland. In developing our policy alongside WTO rules, we have also had to take into consideration a broader set of our international obligations, including those under the Good Friday agreement. Furthermore, as we have set out, these arrangements are strictly temporary. The noble Lord, Lord Kerr, asked us the meaning of “temporary” in this respect; it is a period up to 12 months.

I will come to the point raised by my noble and learned friend Lord Mackay, because it is material to what we have been discussing today. He made the important observation that the amendment as worded seeks an agreement between the UK and the Government of Ireland. Of course, because the Irish border is, as he rightly said, a border between the United Kingdom and the European Union, it would need an agreement with the EU. I think that is the point my noble and learned friend was making. In that context, the way in which the amendment is currently worded would be unlawful because it refers to the Government of Ireland as opposed to the EU.

The noble Lord, Lord Hain, said that this amendment does not put the Government in a straitjacket. It would seek to limit flexibility—no “facilitations”, for example, would rule out future technologies, which is something the EU has specifically agree to look at as a priority once the withdrawal agreement has been agreed. In terms of EU imports into Northern Ireland, not across the land border, the answer to the question of whether tariffs apply is yes. The waiver applies only to goods moving from Ireland to Northern Ireland. This is a temporary measure that would need to be implemented.

The noble Lord, Lord Kerr, asked about potential arbitraging in terms of pricing. Many things affect the price of cars, in terms of tax and currencies, and an individual car from Dublin, driven across to Belfast, would be exempt from the 10% tariff. It would not necessarily be cheaper, but these measures would be temporary. Surely this breaks most favoured nations status, which I have addressed.

I hope that noble Lords will feel that I have addressed a number of the points that were raised. I thank all noble Lords for raising these matters and assure them once again that this has been absolutely up front and central, at the heart of the Government’s strategy to preserve that hard-won peace and that special relationship. This is something that needs to be there only in the event of no deal, which we are all working tirelessly to avoid. I invite the noble Lord to address the point on the wording regarding the Government of Ireland and the European Union, which, on our reading, means that if the amendment were passed, it would be unlawful. If he could address that specifically, I am sure that it would be helpful to all noble Lords.

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[Lord Stevenson of Balmacara]

My Lords, at the heart of this amendment is a concern that the necessary steps are taken to support trade involving the use of services, which increasingly spreads across not just performance, art or culture but work in making cars, machinery and so on, of which it is an integral part. The expertise and knowledge that goes with that involves people and we need to accompany the work they are doing in a way which allows it to function properly. If they are prevented from moving, we as a society will suffer. In addition to the well-made points from the Cross Benches on the artistic and cultural level, at a purely practical level, we need arrangements for the new technologies which the noble Lord, Lord Hodgson, referred to, which will be unable to work if we do not have the services to make them do so. I wish him well with his iPad when it collapses and he cannot get the people to service it because they are unable to travel.

More seriously, the fourth pillar of the GATT treaty, of which we are a member through the EU, and would be a member if we come out of the EU, requires countries such as the UK—it we were independent—to make sure that services are delivered in ways which include the ability to provide rights for working, living and studying. Although studying does not necessarily seem to apply to the right to work and live, it is a very important aspect for us in Britain because one of our biggest export earners is our educational services. If we prevent people travelling to provide the facilities which allow studying and the ability to pass on knowledge—as we would be, if we do not have a proper arrangement for that—we will suffer enormously as a result.

Last night, I was at a meeting involving universities, organised by the Industry and Parliament Trust. There was a palpable concern felt by all the academics present about: the inability to engage with Erasmus and Erasmus+; the possibility that the Horizon 2020 funds will not be available; the lack of technical support for research activity, because the salary level grades were too high; and the inability to attract good postgraduate students to provide the intermediate work in research teams, and to teach. They felt that this was going to mean considerable changes in our university systems. This is the implication if we do not have a mobility framework of the type described in this amendment, which I support.

[Lord Bates]

My Lords, I thank the noble Lord, Lord Fox, for moving this amendment. Before I respond, I should declare an interest, in that my wife came to this country from outside the EU and has contributed over the last 30 years by building a business, and in other ways. Therefore, I have no problem with recognising, as I was invited to do, the tremendous contributions to this country made by people who come to make this place their home. In the same spirit, I recognise the contribution that our European friends have made to this country, in many of the areas referenced already.

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Moved by

[Lord Stevenson of Balmacara]

24A: After Clause 5, insert the following new Clause—
“UK participation in EU and EEA organisations
(1) The Secretary of State must seek to negotiate an international trade agreement with the EU which will enable the United Kingdom to continue, after exit day, to co-operate closely with the bodies listed in subsection (2).(2) The bodies are—(a) the European Medicines Agency;(b) the European Chemicals Agency;(c) the European Aviation Safety Agency;(d) the European Maritime Safety Agency;(e) the European Network of Transmission System Operators;(f) the European Food Safety Authority;(g) the European Union Intellectual Property Office.”

[Lord Stevenson of Balmacara]

My Lords, those with keen eyesight will have noticed that this is an amended version of an earlier amendment which was tabled in Committee. It reflects the fact that we have been in discussions with the Government on how best to frame an important issue, which is that a duty and obligation should be placed on the Secretary of State in this case and on the Government more generally to ensure that, if we are in a situation where we are negotiating international trade agreements with the EU—in other words, we are not in a no-deal, crash-out situation—the United Kingdom should try to co-operate as closely as possible with the bodies set out in the list.

In moving Amendment 24A, I draw the attention of noble Lords to Amendment 25A which I regard as consequential since it seeks to remove the clause that Amendment 24A is intended to replace.

We can trace the thinking about this back to an amendment moved in the other place at the time the Bill was being considered on Report in the Commons. That amendment inserted into the Bill a requirement that the Secretary of State or an appropriate authority to negotiate an international trade agreement with the EU that includes working closely with the European Medicines Agency, but it stopped at that point. That raises in my mind—and I am sure in others’—why other agencies and bodies of equal importance across a range of issues should not also be the subject of close negotiation. I therefore thought that it would be appropriate to bring forward an amendment at this stage which tries to list some of them.

I noticed that, in the Chequers statement and the White Paper that followed it, there was in fact a much longer list of bodies which were thought to be appropriate in any future negotiated international trade agreement with the EU. They did not appear in my original list, but they could well be considered. I also discovered that the CBI was keen to draw the Government’s attention to its view that the future relationship with the EU would suffer tremendously if a considerable effort was not made to approach bodies such as the European Medicines Agency and then including the European Aviation Safety Agency, the European Maritime Safety Agency and the European Network of Transmission System Operators in the same manner. The version before noble Lords perhaps still does not catch the full attention of the Government, but I hope that, when the Minister responds, he might suggest that we work further on this to make sure that we have reached an agreed position before we get to Third Reading. If so, I would be happy to work with the Government on that.

The Minister will probably raise the question why paragraphs (f) and (g), covering the European Food Safety Authority and the European Union Intellectual Property Office, are on my list whereas they perhaps would not meet the criteria that are going to be raised by the Government. I would be interested to hear his arguments on this, because many Members of your Lordships’ House would think that the European Food Safety Authority meets all the criteria of the others in the list. Moreover, if we are to make a future of our economy in the new modern world, we are certainly going to need to work closely with the European Union Intellectual Property Office, which has a high reputation for all the work that is involved in trying to regulate and bring forward arrangements for new technologies. I beg to move.

[Lord Bates]

My Lords, I thank the noble Lord for presenting his amendment, and I particularly thank him for the way that he has engaged with officials and with my noble friend Lady Fairhead on this important issue. I can cut to the chase and say that we are probably not going to be that far apart, but let me put some remarks on the record in the hope that we can agree to keep working on this between now and Third Reading.

Ministers from across Government have carried out an extensive engagement on EU exit with businesses, industry bodies and civil society organisations from all sectors of the economy and all regions of the UK. The Secretaries of State at DExEU and BEIS and the Chancellor of the Exchequer co-chair the EU Exit Business Advisory Group to ensure that business is not only heard but is influential throughout the negotiations. The group involves the director-generals and directors of the CBI, IoD, EEF, BCC and FSB. The meetings take place regularly and are included in transparency returns. Since July 2016, DExEU Ministers alone have organised and attended more than 500 engagements with business and civil society stakeholders from every sector of the British economy.

For goods, the UK and the EU want to be as ambitious as possible. As part of this, both parties have agreed to explore the possibility of UK co-operation with EU agencies such as the European Aviation Safety Agency, the European Chemicals Agency and the European Medicines Agency. In addition, the political declaration sets out that the UK will seek to co-operate with the European Maritime Safety Agency and the European Network of Transmission System Operators. As a specific example of this suggested co-operation in the interests of tackling shared safety and security issues, we will continue to co-operate with the European Maritime Safety Agency, including on exchange of information between the agency and the United Kingdom Maritime and Coastguard Agency.

Let me turn now to the core issue that remains between us, which is the position of the EU Intellectual Property Office. The Government are working to find the best arrangement for the UK regarding EU agencies and bodies, but the decision to seek co-operation with an EU agency or body must be made carefully, bearing in mind the context of the UK’s overall aims for the future relationship and negotiations with the EU. As we negotiate our future relationship with the EU, the Government are determined to agree ambitious provisions to help businesses protect their intellectual property rights. Indeed, in the political declaration the UK and the EU commit to establishing,

“a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest”.

In this regard, the UK would seek an appropriate level of co-operation with the EU and other relevant agencies such as the EU IPO. What we can achieve will be subject to the negotiations. However, since intellectual property is a wide-ranging and dynamic area of law, it would be unwise to stipulate in UK law exactly how we want to co-operate with the EU in this given area, as this could have wider implications for the balance of rights and obligations in the future partnership.

Whatever the outcome of the negotiations, I should like to reassure the noble Lord, Lord Stevenson, that trademarks and registered designs are granted on a non-discriminatory basis. That means that, in all circumstances, British businesses will continue to be able to use the EU Intellectual Property Office to protect their trademarks and designs in the EU. The Government want to emphasise that we seek to be ambitious and to obtain the best result possible in the negotiations with the EU on intellectual property. However, as it stands, the amendment would be unhelpful in that it would bind the UK to a particular negotiating approach. The negotiation objectives are complex, and there are vitally important questions which must be weighed in their own right.

In accordance with the commitments made by the Prime Minister, Parliament will have a greater and more formal role in the development of the mandate for the next phase of the negotiations. The Government are more than sympathetic both to the concerns of the noble Lord, Lord Stevenson, and to those of businesses. A thorough engagement with stakeholders and the EU has led the UK to saying that it will seek co-operation with five bodies that I mentioned earlier. This work requires thorough and weighted consideration of how active participation in an agency delivers wider negotiation goals in the context of any associated costs and disbenefits.

I thank the noble Lord for his constructive approach to engagement on this. I believe that we are not far apart from each other, particularly in the light of the progress that we have made to date. As a consequence, I can confirm, as has been the case throughout the process, that I and the lead Minister, my noble friend Lady Fairhead, will be happy to have further discussions to see whether we can reach a mutually acceptable agreement. We will therefore return to this matter at Third Reading. On that basis, I would ask the noble Lord to consider withdrawing his amendment.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for his considerate words and for dealing in detail with some of the issues that I raised in my opening statement. With his agreement, we will see whether we can work further over the next few days to get a common agreement on a wording that can be brought back at Third Reading. I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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[Viscount Younger of Leckie (Con)]

My Lords, I rise as batsman No. 3 today. This group covers Amendments 27, 28, 29, 30 and 36 to 58. I will speak to Government Amendments 27, 29, 30 and 36 to 58 which are minor, technical amendments. I will then respond to amendment 28 tabled by the noble Lords, Lord Stevenson of Balmacara, and Lord Purvis of Tweed, after they have spoken to their amendment.

To avoid the unnecessary duplication of a provision already in place by virtue of the European Union (Withdrawal) Act, Amendment 27 removes Clause 7(2). Clause 7(2) allows for devolved Administrations to make regulations under section 1(1) or 2(1) of the Trade Bill before exit day provided that those regulations do not come into effect until exit day. This is already provided for by the European Union (Withdrawal) Act, which applies this principle to all Bills passed after the Act in the same Session of Parliament. There will be no change to policy with the removal of Clause 7(2); it merely removes an unnecessary and duplicative provision.

For the Bill to work in the way that is intended, the definition of subordinate legislation must include Acts passed in devolved legislatures as well as in the UK Parliament. This is possible by changing the definition of subordinate legislation from that used in the Interpretation Act 1978 to the more detailed one used in the European Union (Withdrawal) Act. This is the purpose of Amendment 29 which ensures that, where possible, the provisions in the Bill respect the important role of the devolved Administrations.

Turning to Amendments 30 and 36, Clause 8(6) in Part 1 of the Bill sets out a list of definitions of terms found in the Bill, such as “devolved authority”. The amendments will move the definition of domestic law from Schedule 1, paragraph 2(7) to Clause 8(6), where it will sit alongside other definitions that relate to the devolved Administrations. This will make the Bill easier for people to follow.

Turning to Amendments 37 to 43 and 45 to 58, Schedule 1 to the Trade Bill allows joint procedure requirements that derive from outside the Trade Bill still to apply to regulations made under Clauses 1 and 2 of the Bill. By inserting the phrase “acting alone” to appropriate places in Schedules 1 and 2, as Amendments 37 to 43 and 45 to 58 seek to do, we are improving the quality of the legislation by clarifying when the devolved authorities are acting alone as opposed to acting jointly with the UK Government.

Amendment 44 ensures that paragraph 6(4) of Schedule 1 works as intended by applying consultation requirements that would otherwise bind Northern Ireland devolved authorities to regulations made under Clause 1(1) and 2(1). These changes are technical in order to tidy up the Bill, and as such I hope your Lordships will support them.

[Lord Stevenson of Balmacara]

My Lords, it is a test of the abilities of Ministers to be able to breathe life into a list such as that we have just heard. This is a case of drafting amendments beyond the boredom threshold of many people who have to sit through these debates, and I congratulate the noble Viscount on his ability to do that well. I have no objection to the points that he has made and will support them enthusiastically when asked to do so.

In this group, which includes a lot of one-line amendments, is a large amendment dealing with the Sewel convention, which has operated for a number of years in relation to devolved matters in the Assemblies in Scotland, Wales and Northern Ireland—when they meet. It is there because there is concern that the Government have still not bottomed out their arrangements for how all such matters are to be dealt with going forward. While there is no complaint that the convention has not worked well until now, conventions are conventions and there is an argument, at least in principle, that at some point—either now or at some later stage—an attempt should be made to clarify the rules by which it operates and the conditions under which it exists.

I say that particularly because there remains a continuing concern over how the Government attempted to legislate in the withdrawal Bill, in particular on matters being devolved—as they may be under any agreement with the EU or if we crash out—to the UK but for which there was a strongly persuasive case for them going directly to the devolved Administrations. In those circumstances, a great deal of work has been done and a lot of the individual issues have been settled, one way or another. However, a list of matters relating to devolved issues still needs to be resolved so that where they intersect with other geographical locations, there is a workable scheme under which progress can be made.

One issue that arose previously was the extent to which the devolution legislation passed in this House to set up theses bodies could be invoked for issues concerning who has the authority to legislate where a matter is devolved. If a matter is not reserved under the Act, it is devolved, so matters that fall to be devolved must have the consent of the body to which the issue is devolved under the Sewel convention. I am putting this simply; the arrangement is more complex. In the case before us, with trade being such an important issue, we felt that there should be some measure in the Bill to explain exactly the conditions under which the convention would operate and the extent to which it would or would not be concerned. The amendment’s wording is quite clear:

“Regulations made … by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority”,


unless the Ministers consent. It goes on to say that it would normally be within the devolved competences of the devolved authority, to which conditions are attached. That applies to all areas.

That would have been a very simple introduction to a very simple issue on which I would expect the Minister to respond. However, it will not have escaped the House’s attention that only yesterday, a very similar amendment to another Bill—the Healthcare (International Arrangements) Bill—was moved by the noble Baroness, Lady Manzoor, on behalf of the Government. It covered almost exactly the same territory. It was phrased positively, in a way that the amendment before the House today is not, but it covers the same ground. It said:

“Before making regulations … that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


It goes on to explain the conditions under which that would operate. The wording is not identical but I would argue that the sensibilities and principles behind this matter are identical to those of that amendment. Does the Minister therefore recognise that, to the extent to which the Government have already considered this issue and legislated for it, it may be in the Government’s best interests to accept Amendment 28, since to do otherwise might cause difficulty for what has already been agreed to in the healthcare Bill? Alternatively, would he agree to meet me and other noble Lords to discuss this, so that we can come back at Third Reading with wording that is consistent with what will soon be in law via the healthcare Bill and appropriate for the Trade Bill?

[Lord Purvis of Tweed]

My Lords, I will also speak to Amendment 28, to which I have added my name. There is not much to add to the persuasive case made by the noble Lord, Lord Stevenson. I welcome the Minister, who is always assured at the crease even as the third batsman. His clarification on Ministers of the Crown acting jointly with devolved Ministers is helpful; Clause 2 has always been a bit of a puzzle for me when it comes to the joint working of the two sets of Ministers.

As the noble Lord, Lord Stevenson, pointed out, our discussions in Committee concerned the areas of interaction where either devolved and reserved competences align themselves clearly or there is dispute as to where they fall—that is, whether they fall fully in the devolved competences of the Welsh or Scottish Parliament, for example, or are reserved. When we discussed the withdrawal Act, the Government put forward all the different policy areas to be repatriated from European Union legislation. There were no issues with 49 of them. It was recognised that a common framework between the UK and the devolved Administrations was needed for 82 of them. The Government said that there was to be further discussion on 24 of them. In 12 areas, there was no agreement; the UK believed that they were reserved but the devolved Administrations, particularly the Scottish Parliament, believed that they fell fully within the devolved competences.

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[Lord Hope of Craighead]

I return to the word “normally”, to which the Minister drew attention. I recognise that in its judgment in the Miller case, the Supreme Court made it quite difficult for anyone to take a case before the court based on the use of the word “normally”. Indeed, the convention itself is not justiciable. In a way, that shows the sense of the formula that is used in the Healthcare (International Arrangements) Bill because that does not use the word “normally”. It just states that the Secretary of State “must consult”. If one is asking for consent, a higher level of co-operation is a useful qualification. “Normally” requires consent. But consultation is a sine qua non of proper legislation where the devolved Administrations are concerned. I would have thought that the formula in the amendment would not give rise to the same concern, which is why I suggest that the Minister considers very carefully whether, in this Bill, it would not be appropriate to adopt the same provision.

I appreciate what the Minister says about the consent of the Welsh Assembly, but it is a matter of some concern: the Scottish Government are particularly sensitive in relation to these issues and it would be a pity to say to the Scottish Government that just because the Welsh have agreed the Scots should just accept the provisions. They are making their own arguments based on what they know is important to them. Therefore, I hope that the Minister will pay very close attention to the point made.

[Lord Stevenson of Balmacara]

My Lords, this has been a useful little debate and I am grateful to the noble Viscount, Lord Younger, for raising all the points that he did and giving such a full response. But may I check with him that he said—it will be in Hansard—that he would be happy to have further discussions about the issue? I appeal to him and his good sense. Given that we are already in debate with him and his officials on a number of issues, this could with advantage be added to the list. It is not that we have any particular reason to want to bring it back in any aggressive form at Third Reading, but the issues raised are worth further discussion, particularly because the Government have chosen to legislate in the Healthcare (International Arrangements) Bill and that, irrespective of whether or not it has direct read-across to the Trade Bill, will have set a standard. We have to be careful that we are not either missing or exceeding that in a way that would be detrimental to any future discussions on trade.

I am willing not to press this amendment if we can be absolutely clear that there will be further discussions, because this point has not been fully resolved. But I give an undertaking that this is in no sense trying to make things difficult for the Government. It would be worth going a further round to get this right.

[Viscount Younger of Leckie]

As I said, I am very happy to be part of further discussions.

[Lord Stevenson of Balmacara]

A further meeting, principally with those who raised points in this debate, would satisfy us. I do not think that we are far apart on this, but if we can work out exactly what we want said in a way that would advance the chances of getting a better result for all concerned, that would be the right way forward.

Amendment 27 agreed.

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Moved by

[Lord Stevenson of Balmacara]

34: After Clause 15, insert the following new Clause—
“Conditions of commencement
The provisions in Parts 1 to 3 of this Act may only come into force if—
(a) a withdrawal agreement and a framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018, or(b) the House of Commons has passed a motion “That this House approves of the United Kingdom leaving the European Union without a withdrawal agreement and a framework for the future relationship”.”

[Lord Stevenson of Balmacara]

My Lords, when I first joined your Lordships’ House, I was given tutelage in the ways and proceedings of this House. Indeed, I had a watcher who held hands with me, as it were, right through my opening period. One of the first things he said to me was, “When you get a new Bill, look at the commencement clauses, because they tell you how serious the Government are about their intentions”. Hidden in the interstices of the commencement clauses there is often a very good clue about how things happen. Some of the powers in a Bill come into effect immediately the Bill receives Royal Assent. Quite a few do not, and for them usually various elements come forward under regulatory procedures which are sometimes difficult to guess but which are very important to follow through to their logical conclusion. Nine years ago that was seared on my brain as an important thing, and I have never had the opportunity to do anything about it until today. I am therefore delighted to bring forward my first amendment on a commencement clause—and what an amendment it is.

As we speak, Divisions are happening in another place that will bear to some extent on the future of this Bill in its entirety, because consideration is being given to the question of whether there will be no deal. We have anticipated some of the thinking on that by wondering whether it would be sensible to give regard to the question of whether this Bill in its entirety had a commencement at all in relation to whether the other place had actually resolved that measures that would be affected by the legislation contained in this Bill had been given satisfactory agreement by the House of Commons.

There are two parts to this. Either a withdrawal agreement and framework for the future relationship with the EU must have been approved by a resolution of the House of Commons in a move by a Minister under Section 13(1)(b) of the European Union (Withdrawal) Act 2018, or the House of Commons must have passed a Motion that it approves of the United Kingdom leaving the European Union without a withdrawal agreement or a framework for a future relationship. These are quite tight and narrow constraints on the ability of this Bill to come into force. They are important because, in a sense, they tie the whole of the debates about our future relationship and trade in the widest context to the question of what exactly the Government intend for the future of the country in relation to the withdrawal Act.

The whole process can take effect only on the formal passing of a Motion or Motions by the House of Commons. This may not be the night on which such a Motion takes place. I understand that the amendments selected for discussion today do not fulfil the criterion set out in the withdrawal Act as being binding on the Government, although they will give us a clear view about where things will go. But we have been saying this for ages. Indeed, my credibility is shredded by the number of projections I have given to my family about what I thought was happening, all of which have turned out to be wrong. I am not proposing to go further tonight than simply saying that activity is happening that may have a bearing the future of this amendment. With that, I recommend to your Lordships’ House that we seriously consider this amendment. If necessary, I would like to test the opinion of the House.

[Lord Kerr of Kinlochard]

My name is on this amendment, which seems to be an extremely sensible one. I support what has just been said. I had no mentor when I came into this House, and I had no one to hold my hand, so, as will be obvious to all, I am lost, particularly on the details of commencement. But it seems to me that one of the virtues of this amendment is that it would rule out proceeding in the event of an accidental no deal. An accidental no deal is still a real possibility. But any form of no deal would be an act of self-harm, which I hope will be rejected very strongly in a very few minutes.

I was very sorry to see that some members of the Government were proposing to vote for self-harm, which is very odd. The doctrine of Cabinet responsibility seems to have fallen by the wayside on an issue as important as this, where it is impossible to have a government line which all the Cabinet would stick to. It seems to me that, since Sir Robert Walpole’s time, the defining characteristic of British Cabinet government is Cabinet responsibility shared by a group of friends who can command a majority in the House of Commons. It seems that both of these conditions are not met. I am not sure how relevant that point is to the amendment in my name and that of the noble Lord, Lord Stevenson of Balmacara, so I will say merely that I support it.

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[Baroness Fairhead]

I thank the noble Lords, Lord Stevenson of Balmacara and Lord Kerr of Kinlochard. I am particularly delighted to be at the Dispatch Box to answer the inaugural commencement amendment from the noble Lord, Lord Stevenson.

We have had extensive debates on the Trade Bill, during which I believe all sides have acknowledged the importance of its provisions. I do not believe that this House disagrees with the underlying principles of the Bill. As my noble friend Lord Lansley pointed out, it is not just for a no-deal situation; it is to cover whatever the outcome of the negotiations with the EU might be. I hope and trust that your Lordships will acknowledge the need for any responsible Government to bring forward these provisions.

The Trade Bill covers four important areas for consumers and businesses. This House has debated them and is well rehearsed in them, and I do not propose to repeat the key ones in detail here today. The fundamental point which I hope your Lordships will consider carefully is that, if we do not enact this Bill in a timely fashion, that will have a direct and adverse impact not just on consumers but on businesses.

I am very aware that there are activities elsewhere at this hour that might have a bearing on this debate, but I remind noble Lords of the comment of my noble friend Lord Lansley that, if passed, this amendment could have very serious consequences for the UK. If a vote is passed in the other place ruling out no deal but no Motion is approved in favour of a withdrawal agreement, the default position at law is that the UK will leave the EU at 11 pm on 29 March. As a number of your Lordships have said, it would be an accidental no deal; it is not what the Government want, which is to have a deal. However, if that happens, the effect of the amendment would be to prevent the commencement of the substantive provisions of this Bill, and I do not believe that that is the intention of the noble Lords who are proposing it. Nevertheless, that is what would happen. The UK would leave the EU without a deal and without any of the protections offered by the Bill. I do not believe that anyone wants to see that.

The noble Lord, Lord Kerr, commented that the amendment would rule out an accidental no deal. We do not believe that it would; it would merely have the unintended consequence that, if there were to be an accidental no deal, the provisions would be prevented from coming into force. If the other place voted tonight in favour of no deal, the requirements in paragraph (b) proposed in the amendment would have been met. This would mean that the precondition for commencement would be satisfied, so the amendment would be rendered redundant by events.

Furthermore, as far as I am aware, no business groups or other representative organisations have indicated support for the amendment. In fact, many support the need to enact these provisions. For example, the CBI has stated that it remains,

“strongly supportive of the initiative to set up a Trade Remedies Authority”.

Similarly, the British Ceramic Confederation has stated:

“It is clear that we need a TRA, and it is certainly welcome that the Bill establishes one”.


We have heard cross-party support for continuity in both Houses of Parliament, and the International Trade Select Committee also confirmed that it struggled to find a witness who would speak against it.

I acknowledge, and understand, that passions and views are strongly held about whether this country should remain a member of the EU or leave. However, this should not distract from the core role of Parliament and of your Lordships’ House to ensure the best for this country’s people and businesses. No matter how strongly your Lordships feel about these issues, ultimately it must be a matter for the elected representatives in the other place to make a decision about the steps this country takes at this important moment in our nation’s history. This should not distract us from this Bill’s content, the importance of these provisions and the desire of consumers and businesses to see these vital provisions enacted.

During scrutiny of this Bill, the House has shown itself at its best, holding the Government to account and working with the Government to improve the legislation. However, for the reasons I have stated, we do not feel that there is a call for this amendment. I would therefore hope that the noble Lord, Lord Stevenson, feels able to withdraw instead of pressing to a vote.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for responding as she has done. I pay tribute to her and her team for the considerable work they have done in trying to make sure that we get through this Bill and try to iron out the differences between us.

I think we will disagree on this. I have received information that the other place has voted 312 to 308 against a no-deal exit. We at least have that information in our hand as we think further about how this amendment might play out.

In response to the noble Lord, Lord Lansley, for whom I have a great respect and whose knowledge and experience have been very useful to the Committee and have informed our debates throughout the process of this Bill, we have already joined the GPA. That has gone through. The regulation-making power in the Bill is to make regulations about future changes in the GPA, not about the GPA itself. I disagree with him that we need this at this time. It may be necessary in future, but there may be other opportunities.

As has already been said, most of the establishing framework for the TRA is in another Bill already in place. As the Minister said, the Government have already introduced the regulations that give effect to the powers necessary for that to operate effectively. They are already through the House. The actual power in this Bill is not necessary. Many of its powers are not. They were appropriate earlier but not so now. I do not think we are talking about the substance of this. In some senses, this is a bit of a wake-up call to the Government, as well as a broader message to the wider community. On that basis, I would like to test the opinion of the House.

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Moved by

[Lord Stevenson of Balmacara]

35: Before Schedule 1, insert the following new Schedule—
“COMMITTEE ON TRADE AGREEMENTSRecommendation in relation to ratification1_ The report under section (Parliamentary approval of trade agreements)(6) must include—(a) an account of the Committee’s consultation with—(i) each devolved authority,(ii) public bodies, businesses, consumer groups, trade unions and non-governmental organisations which, in the opinion of the Committee, have a relevant interest,(iii) the public, and(iv) equivalent bodies in the other signatory states;(b) an assessment of the qualitative and quantitative impact of the proposed trade agreement on—(i) the economy, broken down by the different parts of the United Kingdom and different regions of England,(ii) the environment,(iii) human rights standards,(iv) labour standards,(v) individuals with protected characteristics under section 4 of the Equalities Act 2010,in the United Kingdom;(c) an assessment of the qualitative and quantitative impact of the proposed trade agreement on—(i) the economy,(ii) the environment,(iii) human rights standards,(iv) labour standards,(v) individuals with protected characteristics under section 4 of the Equalities Act 2010,in any other state which is a proposed signatory to the agreement.2_ The report under subsection (6) of section (Parliamentary approval of trade agreements) must include an assessment of the extent to which the provisions of the proposed agreement conflict with, or are consistent with—(a) the provisions of international treaties ratified by the United Kingdom;(b) the provisions of the Sustainable Development Goals adopted by the United Nations General Assembly on 25 September 2015; (c) the provisions of the United Nations Guiding Principles on Business and Human Rights;(d) domestic human rights law;(e) international human rights law and international humanitarian law;(f) the United Kingdom’s obligations on workers’ rights and labour standards as established by the United Kingdom’s commitments under the International Labour Organisation’s fundamental conventions including but not limited to the Declaration on Fundamental Rights at Work;(g) obligations relating to animal sentience by which the United Kingdom is bound, or any principles relating to animal sentience to which the United Kingdom adheres, and any provision in domestic law (including retained EU law) relating to animal welfare standards and the welfare of animals in the production of food and the wider supply chain practice;(h) the principle of eliminating poverty;(i) the United Kingdom’s environmental obligations in international law;(j) the offences in section 1 of the Modern Slavery Act 2015 (slavery, servitude and forced or compulsory labour);(k) the sovereignty of Parliament;(l) the legal authority of UK courts;(m) the rule of law;(n) the principle of equality before the law.”

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[Lord Lansley]

My Lords, it is a pleasure to be the back-marker on Report. Amendment 59 inserts text into the schedule that sets up the process for appointments to the Trade Remedies Authority, so that the chair can be appointed by the Secretary of State,

“following a report from the International Trade Committee of the House of Commons”.

In effect, this includes the chair of the Trade Remedies Authority in the list of appointments that are subject to pre-appointment scrutiny.

I do not do this lightly. There are about 1,000 senior public appointments, only 50 of which are subject to pre-appointment hearings by Select Committees. The Cabinet Office guidance on this was amended then reissued in January. Paragraph 8 sets out three criteria, the first of which says that such appointments should be for,

“posts which play a key role in regulation of actions by Government”.

This clearly must be satisfied as it determines one of the essential roles of the Department for International Trade in investigating and recommending trade remedies. Secondly, the appointments must be,

“posts which play a key role in protecting and safeguarding the public’s rights and interests in relation to the actions and decisions of Government”.

This instance may not be about the public, but certainly it ticks the box for the business community, which would regard the TRA as one of the most important bodies impacting on its interests in relation to the actions of the Government. Thirdly, the guidance says that appointments subject to pre-appointment hearings must be,

“posts in organisations that have a major impact on public life or the lives of the public where it is vital for the reputation and credibility of that organisation that the post holder acts, and is seen to act, independently of Ministers and the Government”.

Noble Lords will recall that, at a much earlier stage, we debated whether this body should be independent. The Government, having looked around the world, decided that the Trade Remedies Authority should be independent, and seen to be independent. We have three ticks in the box. This is clearly an important appointment; for the Department for International Trade, it must be regarded as the most important appointment. I do not know of any other posts that it is presently asked to scrutinise prior to appointment. This seems a perfectly reasonable way to proceed; nor does it constrain Ministers too far, as we have discovered. Ministers have to consult and liaise with Select Committees, respond to them and take account of what they have said, but they do not have to do what a Select Committee says and in quite a number of instances have not done so. Ministers can still make the appointments that they consider to be the right ones. I do not feel that I am holding the Government back from doing what they need to do. I am just encouraging them to include this appointment in that list. I beg to move.

[Lord Stevenson of Balmacara]

I support the noble Lord, Lord Lansley, and congratulate him on the succinctness with which he has made his point. I have been confused for some time as to why the department might resist this. He has made the points exactly as I would have done. This is a key role with a public-facing responsibility and will hold the Government to account on issues of great importance. Indeed, it is the only body that the DIT will have as a marker; it behoves the department to raise the TRA to the appropriate level so that it is seen to have the importance that the department claims for it. For these reasons, it is absolutely right that we have an established routine that the person selected by the Minister to be the chair of this body—we are not expecting the same to happen for the chief executive or more junior staff, just the chair—should be seen by the International Trade Committee. As he says, it is a courtesy in some senses because the Minister can still appoint should they wish to do so. I support the amendment.

[Baroness Brown of Cambridge]

My Lords, Amendment 60 is in my name and those of my noble friend Lord Kinnoull and the noble Baroness, Lady McIntosh of Pickering. I also support Amendment 59.

The UK needs a strong and independent Trade Remedies Authority with a balanced membership to investigate alleged dumping and subsidy cases and to recommend remedies. Schedule 4 to the Trade Bill defines the membership of the TRA and its governance. As I have said before, and as the noble Lord, Lord Lansley, emphasised in moving Amendment 59, while both Clause 10 and Schedule 4 make the independence of the TRA a clear objective, this does not sit entirely comfortably with the chair and the non-executives being appointed entirely at the discretion of the Secretary of State.

The governance model of the Office for Students in the Higher Education and Research Act 2017 seems to offer a good model for delivering both independence and balance, and this is the model that has been used in drafting this updated amendment. It would require the Secretary of State to have regard to the desirability of members having between them experience in a number of relevant areas, including UK manufacturing, trade unions, consumers, regional economic growth, regulatory systems and international trade disputes.

The Government have suggested that the TRA should be managed by trade remedies experts rather than by stakeholders with vested interests, in order to be independent. However, the chief executive designate has already told a Commons Select Committee that she is not a trade remedies expert. A properly balanced group of non-executive stakeholders, supported by expert executives, could be effective, independent and balanced. I look forward to hearing from the Minister how the Government will ensure the combination of independence and balanced and relevant expertise that this important body requires.