Trade Bill

Viscount Younger of Leckie Excerpts

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

[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.

[Viscount Younger of Leckie (Con)]

My Lords, I turn to Amendments 2 and 3, tabled by my noble friend Lady McIntosh of Pickering, which seek to restrict the Clause 2 power so that it can only be used to implement agreements which are “wholly or substantially similar” to previous EU agreements. I can assure noble Lords that all the continuity agreements that we have signed to date have stayed true to our mandate of replicating the predecessor EU agreements, and that will not change for those that we are yet to conclude.

As noble Lords know, we have voluntarily published parliamentary reports for your Lordships’ reference alongside every continuity agreement, which outline any differences required to make the agreements operable in a UK context. As those reports show, none of our continuity agreements have diverged significantly from previous EU agreements. None of the debates in which these agreements have been discussed has resulted in a negative resolution. During the passage of this Bill, we have heard suggestions that the Government are delivering agreements which go above and beyond continuity, and that a more extensive scrutiny process is therefore required for them. The evidence is clear that this is not the case. We are seeking only technical changes to make agreements function in a UK-specific context, meaning that the current scrutiny measures are fit for purpose. I know that noble Lords will point to the recent UK-Japan CEPA. It is correct that that agreement goes further than the EU-Japan EPA in areas including digital trade. However, as your Lordships are aware, as the Government knew that this agreement would go beyond continuity, we provided enhanced parliamentary scrutiny of it.

Setting the UK-Japan CEPA to one side, your Lordships will appreciate that technical changes are required in some areas to allow agreements to work in a UK bilateral context. In these circumstances, the Clause 2 power could be used to make technical changes to UK domestic law to ensure the obligations under the agreement are met. The power in Clause 2 is therefore essential to allow us to implement in domestic law the obligations that arise from continuity agreements. The substantially similar wording is unfortunately ambiguous and could lead to uncertainty as to whether a trade agreement could be implemented via the Clause 2 power. The effect of this could be a possible disruption to concluding and implementing continuity trade agreements, potentially resulting in a gap in preferential trading relationships after the end of the transition period.

To paraphrase what the noble Lord, Lord Purvis, and my noble friend Lady McIntosh, said, they asked: “Why not put this on the face of the Bill, and if the power is not needed to transition trade continuity agreements, why do we need it at all?” As stated in the impact assessment and Explanatory Notes, the Trade Bill is not needed to transition trade continuity agreements themselves. However, the power will provide the implementing powers necessary to fully implement trade continuity agreements over time and in all circumstances. The Clause 2 power is intended to be used only to ensure that a limited number of obligations in these trade continuity agreements, particularly in relation to procurement and mutual recognition, are fully implemented in domestic law via secondary legislation.

I hope that with those explanations, my noble friend Lady McIntosh is reassured that our use of this power will be limited to continuity agreements that faithfully replicate predecessor EU agreements. As a result, I ask my noble friend to withdraw her amendment.

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

I am most grateful to my noble friend Lord Younger of Leckie. With the reassurance he has given me that any agreement will be a continuity agreement and will “faithfully replicate” its predecessor, and with the further reassurance—which I would like to write into the record if I have understood it correctly—that if any future continuity agreement, such as the Japan CEPA agreement, will go further, there will be “enhanced parliamentary scrutiny”, I beg leave to withdraw my amendment.

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

I am so sorry. I am seeking clarification as to whether it is the Government’s intention to withdraw Amendment 36 this evening.

[Viscount Younger of Leckie (Con)]

Perhaps I can help my noble friend. The Minister is happy with what he has said, and I urge my noble friend to draw her remarks to a close.

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

I wish to press my amendment.

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[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.

[Viscount Younger of Leckie (Con)]

My Lords, we have had a very long debate, and it is now my job to address the amendment in the name of the noble Lord, Lord Alton.

I have listened very carefully to the speech of the noble Lord, and noted that he has raised the subject of genocide—a heinous crime—more than 300 times, which is remarkable. I applaud his persistence and I wish that I could be the Minister to provide an answer—perhaps the 301st—that gives the necessary satisfaction to him, and to other distinguished noble Lords who have taken part in this very interesting debate. There have been some very moving and passionate speeches and we have had quotes from around the houses, ranging from Robbie Burns to—I should mention this—the very great, late Lord Sacks.

I do not advocate repeating the points made so eloquently by my noble friend Lord Grimstone in a previous group, so my remarks—I hope that the House will forgive me—are necessarily short. I will, however, quickly re-emphasise that the Government share wholeheartedly the concerns underpinning this amendment. My noble friend Lord Cormack referred to global Britain, as did a number of other Peers. The UK has also long supported the promotion of our values globally, and remains committed to its international obligations. We are clear that more trade does not have to come at the expense of human rights. 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 sanctions policy.

The UK has played a leading international role in holding China to account for abuses, in particular those reported as taking place against the Uighur Muslims—which, again, was a theme during the debate this evening. We have led joint statements at the UN’s human rights bodies and underlined our concern directly to the Chinese authorities at senior levels. We have also repeatedly urged businesses that are involved in investing in Xinjiang or which have parts of their supply chain in the region, to conduct appropriate due diligence to satisfy themselves that their activities do not support any human rights violations or abuses. We have reinforced this message through engagement with businesses, industry groups and other stakeholders. Under the Modern Slavery Act the UK became the first country in the world to require businesses to report on how they are tackling modern slavery in their operations and supply chains.

This amendment seeks to give the High Court of England and Wales powers to revoke trade agreements where the court holds that another signatory to the relevant agreement has committed genocide. I was grateful to my noble friend Lord Lansley, who not only alluded to this in the last group but—as I know, though I came in slightly late—in this group too. He made some very helpful and interesting points. I listened carefully to all the speeches but, despite the very strong arguments that were presented by the noble Baronesses, Lady Kennedy and Lady Smith, and a few other noble Lords, the Government have serious concerns about this approach, some of which were touched on in the previous groups, as my noble friend Lord Grimstone iterated most strongly in his remarks.

The key point is that this would strike at the heart of the separation of powers in Britain’s constitutional system, allowing the High Court to frustrate trade agreements entered into by the Government and ratified after parliamentary scrutiny. The noble and learned Lord, Lord Hope, raised a point about the separation of powers and the role of the courts. The Government’s position has consistently been that only a competent court should make determinations of genocide, and this does not entail the courts having the power to revoke trade agreements. State genocide is very difficult to prove in the judicial context—the evidential threshold is very high, and proceedings tend to be long and costly but the amendment would make it simple to bring vexatious allegations of genocide to the court as a means of putting political and international pressure on the Government.

Perhaps I may take up a point raised, in part, by my noble friend Lord Cormack. I remind the House, a bit like a long-playing record, that the Bill focuses on continuity agreements, but I would like to say a word about our approach to free trade agreements. We do not see a choice between securing growth and investment for the UK and supporting human rights. Our experience is that political freedom and the rule of law are vital underpinnings for both prosperity and stability, and that by having a strong economic relationship with partners, we are able to have open discussions on a range of very difficult issues, including human rights. Despite our varying approach to agreements with partners, we will always have open discussions on a range of issues, including human rights.

As my noble friend Lord Grimstone said earlier, we have provided extensive information to Parliament on our negotiations, including publishing our objectives and economic scoping assessments prior to negotiations beginning. We continue to engage closely with the relevant scrutiny committees—namely, the International Trade Committee in the House of Commons and the International Agreements Sub-Committee in the House of Lords.

Just before I conclude, I want to say something about China, because many references were made to that country. I say at the outset—as noble Lords would expect me to say—that China is an important economic partner for the UK. UK/China trade is currently worth approximately £76 billion. China is our fourth-largest trading partner, the sixth-largest export market and the third-largest import market. Currently, we have no plans to commence free trade agreement negotiations with China. Having recently concluded an agreement with Japan, our current priorities, as my noble friend Lord Grimstone has said on many occasions, are the US, Australia and New Zealand, as economies more similar to our own. Looking ahead—again, as my noble friend has said—we are committed to seeking accession to the CPTPP.

I do not want to delay the House any longer and the hour is late. In the light of the legal difficulties and unintended consequences, I ask the noble Lord to withdraw his amendment.

[Lord Alton of Liverpool (CB)]

My Lords, I am grateful to the noble Viscount for his response to the debate. He would not expect me, though, to accept the tenor of his arguments, nor would the House expect me to speak at any length at the conclusion of this debate, because I know, as the noble Baroness, Lady Meacher, was right to remind us, that we would like to move to a vote.

Let me make just two points. Anyone who doubts the point of the House of Lords should read the speeches tomorrow in Hansard, because it has been a remarkable debate on all sides. Good, constructive points have been made, and people have quite rightly said no amendment is going to be perfect and any amendment can be refined and improved. That is the purpose of this place—it is the point of our existence. If we send this amendment to the House of Commons, it can continue to be worked on and those issues can easily be addressed.

During the debate, a number of noble Lords, including the noble Baroness, Lady Smith, and the noble Lord, Lord Polak, mentioned Rwanda. I visited the genocide sites in Rwanda; I went to a place called Murambi, where 56,000 people had been killed. I saw the skeletons of pregnant women with their children in what had been a college but had been turned into a memorial for victims of that violence. The noble Lord, Lord Hague of Richmond, as William Hague, our Foreign Secretary, spoke at the 20th anniversary of the Rwandan genocide, and he said:

“It is not enough to remember; we have a responsibility to act.”


It is not enough to remember. We have a responsibility to act.

During the Second World War, Dietrich Bonhoeffer, a renowned theologian, defied Hitler and the Reich. He was sentenced to death and executed. He famously said:

“Not to speak is to speak. Not to act is to act.”


Now is the time to act. I would like to test the opinion of the House.

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[Lord Fox (LD)]

My Lords, this has been necessarily a short debate, but it has been an incredibly high quality debate. We have heard, from all the speakers, a high level of understanding of the issue and the dangers that Amendment 11 is seeking to address. I speak as one of those who signed Amendment 11. I support Amendment 43 and congratulate my noble friend Lady Sheehan on her eloquent presentation, but I am going to focus on Amendment 11 because it is a really important issue. We heard a lot about data from people who know a lot about data.

Sitting above this is the fact that the Government have no published cross-border data transfer policy. Without that, it seems as though each trade deal will be a series of negotiations without a framework. The noble Lord, Lord Freyberg, and my noble friend Lord Clement-Jones set out the benefits of having constraints and frameworks for this. It is clear from the Japan trade deal that the Government have indicated a level of flexibility around data. Once that has been delivered for one trade deal, it becomes a necessity for the next—and a bit more and a bit more. Even if that is not what will happen, I am sure the Minister understands that this fuels the fires of people’s suspicion and concern about the way in which data is being treated in this country.

From his position of great knowledge, the noble Lord, Lord Patel, set out some specific examples—not of a trade deal but of trade in this country—where data is already being parlayed. One things that has not been said is that, for patients to consent to their data being used, they have to believe that there will be a benefit. They do not want that benefit to flow across these borders through trade; they want it to accrue to the NHS. That is why Amendment 11 is important, and why I hope that it goes to a vote shortly and gets the support of Members from these Benches and beyond.

The noble Baroness, Lady Thornton, spoke very clearly in moving this amendment. Like me, she recognises the benefits of trade, but only when health takes the central place in our trade policy. That is what Amendment 11 seeks to achieve.

[Viscount Younger of Leckie (Con)]

My Lords, I will now address Amendment 11, tabled by the noble Lords, Lord Freyberg, Lord Patel and Lord Fox, alongside the noble Baroness, Lady Thornton. This amendment would place a range of restrictions on the regulations that we can make to implement continuity agreements. I will be relatively brief and will write to all noble Lords who asked questions to be sure that they are answered.

New subsection (2), proposed by this amendment, stipulates that regulations can be made only using Clause 2 of the Trade Bill if the agreement does not undermine the way in which the NHS is delivered, operated or regulated, but we believe that the conditions set out in subsection (2) are unnecessary. We have demonstrated time and again that we are not selling off the NHS, and this will not change.

I listened carefully to the remarks of the noble Lord, Lord Freyberg. In response, the Government are clear that health and care data should only ever be used or shared where it is used lawfully, treated with respect and is held securely, with the right safeguards in place.

The conditions set out in proposed new subsection (3) would defeat the purpose of having a Clause 2 power. It stipulates that no agreement can be implemented through Clause 2 regulations, unless it contains a range of explicit exclusions and inclusions in the text of the agreement. Importantly, this would effectively prohibit the implementation via Clause 2 of any continuity trade agreement that the Government have signed, which does not explicitly meet these requirements, even though this amendment did not exist at the time of their negotiation. Every single continuity agreement that we have negotiated over the past three years would be left null and void, without an implementing power. We would be forced to reopen negotiations with every single continuity partner, which would no doubt be used to extract costly concessions.

Rigorous protections for public services can be achieved in both positive and negative lists in services and investment schedules for FTAs. The sectoral commitments outlined in a schedule are only one part of a tapestry of protections for public services, which can also include scope exclusions and exceptions set out elsewhere in the FTA. The UK is party to agreements that use both positive and negative lists, and neither outcome has interfered with the Government’s right to regulate and ability to protect public services.

This amendment would also place a new requirement for exclusions on the sale of patient data—another condition that was not in place at the time of negotiation. There are already strict legal, privacy and security controls on how companies can use patient data, including principles set out by the National Data Guardian and the common law of confidentiality. We have clearly set out our principles governing data-sharing agreements entered into by NHS organisations, published in July 2019.

Finally, subsection (4) of this amendment stipulates that regulations can be made using Clause 2 of the Trade Bill only if they allow for the scrutiny of

“medical algorithms, technology or devices”

with respect to their

“methodology for processing sensitive data”.

I reassure your Lordships that before any medical device can be placed on the UK market it must be compliant with the Medical Devices Regulations 2002, which cannot be superseded by a trade negotiation without further legislation.

I now turn, quickly, to Amendment 43, proposed by the noble Baroness, Lady Sheehan, and the noble Lords, Lord Purvis of Tweed and Lord Alton of Liverpool. It would mean that the commencement power in Clause 32 could be used only to commence the substantive provisions of the Trade Bill if they do not restrict UK citizens’ access to medicines, if they do not curtail the Government’s power to use the safeguard provisions of the agreement on trade-related aspects of intellectual property rights, if they do not delay the market entry of lower-priced generic health technologies and if they do not lower the bar for patentability. Similar to Amendment 11, it also seeks to exclude health-related matters from the scope of ISDS provisions.

I also note that the voluntary scheme for branded medicines pricing and access—the so-called VPAS—which is the latest voluntary pricing scheme negotiated with industry, will continue to control the prices of branded medicines and their cost to the NHS. The VPAS runs in conjunction with the statutory pricing scheme, NHS England and NHS Improvement commercial arrangements, and the process for NICE appraisals. The 2019 VPAS will run until 2023 and, through a series of measures, supports patient access to innovative new medicines.

Furthermore, the UK remains committed to the Doha declaration on the TRIPS agreement and public health, which recognises the right to public health and the importance of intellectual property protection, while noting that the flexibilities contained in the IP system can be enacted to address public health needs. In addition to our commitment to our international obligations, we will also be bound by IP provisions designed to facilitate public health that are enshrined in domestic law. For example, the Patents Act 1977 provides for compulsory licensing in the unlikely circumstances that this is required. With that, I ask noble Lords not to press their amendments.

[Baroness Thornton (Lab) [V]]

My Lords, I thank noble Lords very much for the support that the amendment has received from across the House. I listened carefully to the Minister but was not at all convinced by what he had to say. It seemed to boil down to two things. The first was that nothing should change because you might have to change other agreements—which is clearly nonsense in this day of technology. Secondly, if the Minister really cared about the NHS and data protection, the Government should write their own amendments to the Bill, instead of having the rest of the House do it for them. On that basis, I wish to test the opinion of the House.