Trade Bill

Baroness Blower Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 8th September 2020 Lords Chamber

[Baroness Blower (Lab) [V]]

My Lords, it is always interesting to hear maiden speeches and I particularly enjoyed the speech of the right reverend Prelate, focusing on equality.

As my noble friend Lord Stevenson indicated, there are significant gaps in this Bill. We will hope and expect to remedy these with amendments as the Bill progresses. I note that the Government’s own amendment on gender equality, which featured in the previous Bill in 2019, is now gone, stripped out from the current Bill. It is fervently to be hoped that this disappearance is not an indication of misogynist tendencies in either the UK Government or any person from Australia, or anywhere else, who may be invited to advise on trade. Gender equality must be, and must remain, a priority.

It is well known too, of course, that workplaces in which workers are organised in and by trade unions are safer places to work. As we face not just this Trade Bill but the ongoing Covid pandemic, health and safety at work—a bread-and-butter issue for trade unions—needs to be uppermost in our minds and policy.

The issues of food quality, animal welfare and environmental protection, especially given climate change and the global climate emergency we face—argued but rebuffed in another place—will no doubt return in this House’s Committee stage. Crucially, too, we will argue for trade union rights of workers, not just from the health and safety perspective, vital though that is, but on fair pay and decent working conditions.

Those workers whose contribution to fighting the coronavirus in our NHS was so warmly applauded must be acknowledged not just in pay but by securing the future of the NHS as a public service, publicly funded and publicly provided, free from the ravages of predatory privatisation. I note that the Minister asserted that the NHS will not be for sale. I therefore look forward to the protection of the NHS being enshrined in legislation.

What is needed from a Trade Bill are detailed policies to protect workers’ rights and to secure the supply chain, as well as to tackle global challenges. As we face a jobs crisis wrought by the Covid crisis, this Bill must ensure that trade plays its part in ensuring sustainable jobs in the workplace, where all ILO conventions and trade union rights are respected and promoted.

Trade Bill

Baroness Blower Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 29th September 2020 Grand Committee

[Lord Hendy (Lab) [V]]

My Lords, I will speak to Amendment 5, which complements one aspect of my noble friend Lord Lennie’s Amendment 1, as explained in his excellent speech just now. As my noble friend Lord Hain has set out with his customary clarity, the purpose of Amendment 5 is to prevent the GPA undermining or limiting the capacity of public bodies to impose conditions in public contracts that require respect for the rights and protections of the workers engaged to carry out those contracts. The rights and protections identified are limited to those specified by those conventions of the ILO that have been ratified by the UK.

Public procurement is a key tool in the protection of workers’ rights, and has been at least since the fair wages resolution of 1891, which was expanded in 1909 and again in 1946. The resolution required a “fair wages clause” in government contracts which obliged government contractors to pay the wage rates and abide by the terms and conditions that were set by collective agreements or arbitration in the relevant sector. From 1909 to 1979, collective bargaining was the policy of Governments of all political parties, with the consequence that collective agreements covered well over 80% of the UK workforce for the 40 years leading up to 1979. Since then, there has been a change in government policy and law that has resulted in collective agreements now covering only about 25% of British workers.

However, public procurement requirements can be based on other standards than those of collective agreements, desirable as that would be. Another means of achieving the levelling up, which the Government claim is an objective, is by reference to the minimum standards set by the ILO. There can be no rational objection to reliance on these standards, since they have long been ratified by the United Kingdom. Indeed, under EU law for many years, states have been required to ensure the observance of ILO standards by public contractors. Article 18, paragraph 2 of the EU directive on public procurement of 2014 requires states to take measures to ensure

“that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law”

including the provisions listed in Annex X to that directive. In that list are the core ILO conventions, all of which have been ratified by the United Kingdom. That is not inconsistent with the revised GPA.

Amendment 5 is modest indeed, and requires no more than that the envisaged regulations should not undermine what the current law requires. I hope that the Government will accept this amendment.

[Baroness Blower (Lab) [V]]

My Lords, it is a pleasure to follow my noble friends Lord Hain and in particular Lord Hendy, whose erudition in this area of law is well known. I have lent my name to Amendment 5, because, as I said at Second Reading, the Bill is lacking in positive reference to workers’ rights. As my noble friend Lord Hain said, it is more about a race to the bottom. It is therefore important to remedy this deficiency.

The deficiency can be remedied in part by Amendment 5. The UK already has commitments as a signatory to the ILO. These are currently protected by EU directives on public procurement, but this amendment is an opportunity to insist on conformity to them in relevant domestic legislation. The much-vaunted “levelling-up” agenda of the Government may be thrown into doubt by any number of decisions they may take. Not to accept the need to protect workers’ rights would be one such decision.

There is ample evidence that workplaces organised by trade unions are generally healthier and safer places to work, so the right to organise as in Convention 87 is a core principle. The right to collective bargaining and to achieve collective agreements, as set out in Convention 98, is central to providing an appropriate forum to determine wages.

This amendment is about creating conditions to ensure the provision of employment rights by insisting that no provision of the GPA should undermine the rights of and protections for workers in relation to or under a tender or contract. If, as I am sure we would all wish, we are to see public procurement in which relevant authorities have proper regard to the rights of workers and in which we as a country are seen to honour the obligations up to which we have signed in the ILO, our course is for your Lordships to agree the amendment.

[Lord Fox (LD)]

My Lords, I shall speak to Amendment 6 in my name, but before that I want to speak more generally on Amendments 1 to 5. These all refer to Clause 1 and the UK’s future participation in the Agreement on Government Procurement. It should be noted that the GPA has been an important form of market access that has come with our membership of the European Union. As the Minister and others have said, it opens up the possibility of access for UK companies to about £1.3 trillion of government contracts. One would expect Her Majesty’s Government to talk up this side of the equation.

The expectation is that the UK will enter the GPA at the end of the year, and I understand that the Government are seeking more or less to reproduce the access that we have enjoyed thanks to our European Union membership. Perhaps the Minister can give us an update on the timetable and whether there may be any changes to the terms that we might expect of the GPA at the turn of the year.

As I said, the external element of GPA is extremely important, but the flipside of that external access is that international businesses have access to about £67 billion of public service contracts in the UK every year. As we heard from the noble Lords, Lord Lennie, Lord Hain and Lord Hendy, the noble Baroness, Lady Blower, and my noble friend Lady Burt, these amendments seek to establish comfort on the nature of those services in terms of their impact on society and how publicly procured contracts affect people. We are sympathetic to these aims. Of course, we will debate later further amendments with similar objectives covering the whole trade environment and not just GPA, because workers’ rights, the environment, food standards, protecting the NHS, the needs of small businesses and other vital issues are central to the trade agenda. There is no point in having international trade if it erodes standards for people who live in this country.

In his maiden speech at Second Reading, the Minister made it clear that there was no intention to water down terms and conditions, yet the Government seem reluctant to put any of those terms and conditions into the legislation. This makes people suspicious—it makes me suspicious. These amendments, or amendments that come later, would help alleviate our suspicions.

Amendment 6 would require the Government within six months of acceding to the GPA to lay before Parliament a report on what help they are providing to businesses in the UK so that they can secure the advantages of this market access. The Government paint a picture of “global Britain”, a nation sailing the high seas of international trade with swagger and elan. I am not sure that I wholly sign up to this particular view of the world, but the GPA is an opportunity for UK companies, and has been since 1996. The Minister also said at Second Reading:

“I should like to make it clear that this Government and I are committed to transparency”.—[Official Report, 8/9/20; col. 675.]


All the evidence points to his sincerity in this regard. In the interests of the transparency that the Minister espouses, Amendment 6, proposed by my noble friend Lord Purvis and I, simply asks for a report within six months on how the global Britain project is going with respect to the GPA. It would set out how Her Majesty’s Government are facilitating UK business taking advantage of the GPA. What actions have backed up the Secretary of State’s brio? For example, how have Her Majesty’s Government helped small businesses in the way just advised by my noble friend Lady Burt?

This level of transparency will have the benefit of reassuring people like me who fear that much of the language around international trade is just that: words. We want action; we want success. Human nature being what it is, our proposed six-monthly report would also help ensure that someone was actually doing something during that period.

--- Later in debate ---

[Lord Hain (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Kramer, who spoke very eloquently; I endorse what she said.

I will speak to Amendment 18, in the name of the noble Lord, Lord Hendy, and my noble friends, which I have signed. I very much endorse the speeches of my noble friends Lord Stevenson and Lady Bennett. On Amendment 18 in particular, I welcome and endorse the excellent contribution of my noble friend Lord Hendy, who adds enormous authority on these issues.

My noble friend mentioned that the Canada-European Union agreement—CETA—includes the very kinds of provisions that we are asking for in Amendment 18. I note that leading Conservatives—Brexiteers—have spoken of “Canada-plus” as a future basis for a trade agreement with the European Union. Does Canada-plus mean labour rights-minus? A failure to adopt Amendment 18 would imply that that is the case, and that that is the real agenda of the Brexiteers.

Amendment 18 would preclude the UK from agreeing any international trade agreement if its regulations contravened the UK’s international labour law commitments. The UK is a member of the International Labour Organization and has been so since 28 June 1919. Under the auspices of the ILO, fully 88 conventions and two protocols have already been ratified by the United Kingdom. I cannot see why the Minister could not agree to this amendment and why the Government would not endorse it since, in effect, it reinforces the status quo to which we have already signed up in all future trade agreements.

Of course, that is unless the Government’s real agenda is a kind of Singapore-upon-Thames, with a deregulated structure of labour rights, environmental rights and all sorts of other rights that we have come to expect as representing the standards that we want in Britain; an offshore haven of low labour regulations, low standards and low tax. That is what leading Conservatives, particularly the Prime Minister and his henchman Dominic Cummings, have been talking about. Surely we should not be racing to the bottom in every respect for British citizens and workers but seeking to match the best, such as the Scandinavian countries, which have high standards in these matters—high levels of public services and the public expenditure to sustain that. They have also had, by the way, much higher levels of productivity and economic success than Britain has had under this Government for the last 10 years, prior to Covid.

What sort of “taking back control” will it mean if we do not adopt Amendment 18, or at least a version of it that the Government might favour for technical reasons? What does “taking back control” mean for Brexiteers? Instead of high-quality, high-skilled standards it would mean low-quality, low-skilled standards, particularly on labour rights.

I should point out that the ILO standards that this amendment seeks to reinforce and insist on for any future trade agreements that the UK might strike with other countries are a minimum, not a maximum. They have been achieved by agreement across the world and therefore, inevitably, are not the maximum we should be aiming for. Surely we should, in a high-quality Britain that aims to be the best for its citizens, aim for the maximum. As my noble friend Lord Hendy said so poignantly, the amendment is surely uncontroversial because it asks the Government to adopt in future trade agreements what they have already signed up to in ILO conventions and protocols. I hope that the Minister will accept it or explain why not and what sort of agenda is really on offer for the British people from his Government.

[Baroness Blower (Lab) [V]]

My Lords, I have added my name to Amendment 18. As has been said by my noble friends Lord Hendy and Lord Hain, it is an uncontroversial amendment. I too look forward to the Minister’s response, in which I am sure he will welcome it.

I consider it fundamental that the rule of law should be enshrined in the Bill, as should the legal authority of the United Kingdom courts and the principle of equality before the law. It should go without saying that respect for the rule of law can be relied on in the United Kingdom. However, as doubts may have been cast thereon in recent weeks, this amendment is necessary to ensure that international trade agreements observe both the conventions of the ILO—mentioned frequently in this debate and up to which Britain has already signed—and the ratified articles of the 1961 European Social Charter.

My noble friend Lord Hendy has provided a full rationale for this amendment and, as amply demonstrated by reference to CETA, precisely how it can and should work. I fully endorse and concur with his remarks and I look forward to the Minister’s response.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow my noble friend Lady Blower and to have added my name to Amendment 18, drafted by certainly the foremost labour lawyer in your Lordships’ House, if not the country. I will try to be plain and succinct in support of Amendments 18 and 11 by logical correlation, and I need not read out my remarks; this is simple stuff.

In an ideal world, I would have loved a Bill that clipped the wings of the Executive and ensured that it entered into only trade agreements that comply with international human rights and other international obligations, but this Bill is not that. I accept that because it is very clear that its Long Title and scope are about implementing trade agreements, some of which might be of concern to me and to others on the basis of who those trade agreements are made with. Notwithstanding the assurances that this Government—and no doubt future Governments—care about the rule of law, so we cannot clip the wings of the Executive in relation to the royal prerogative on what agreements they enter into, we can say, without being creative or mischievous and without diverting by one iota from the Long Title of the Bill, that when regulations are made under its provisions, they must comply with the international rule of law, the domestic rule of law and, in particular, obligations that we have long ratified on workers’ rights, children’s rights, women’s rights, sustainable development and so on.

Put simply, if the Minister in his response will neither happily agree to Amendments 11 and 18 nor offer explicitly to come back at the next stage of the Bill with something like them, that will raise a serious question as to why not. It is not enough to say, “But of course we would never make regulations that breach our international obligations.” That can happen by accident as well as by design. Without being insensitive about this, I remind your Lordships that, in recent weeks, the Government have lost their most senior legal adviser and one of their most senior law officers over this very issue of setting a course whereby we put our international legal obligations and domestic statutes into conflict.

In summary, what is wrong with children’s rights, workers’ rights, non-discrimination at work and sustainable development goals? The Government would say—and have said—that there will be no levelling down, only levelling up. If that slogan means anything, any regulations made under the Bill when it becomes an Act must comply with our obligations. That must be on the face of the legislation to ensure that any regulations that accidentally breach our obligations will be ultra vires this Bill. It is very simple. I really look forward to the Minister’s reply.

Trade Bill

Baroness Blower Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Grand Committee

[Lord Hain (Lab) [V]]

My Lords, the Covid-19 pandemic has shone a spotlight on unacceptable working conditions, especially those endured by many key workers, and on some of the downsides of globalisation—job insecurity, zero-hours contracts, unfairly poor pay, discrimination and lack of recognition—and it is a pleasure to follow my noble friend Lord Hendy’s very able and expert moving of Amendment 17.

The Covid-19 pandemic has emphasised the significance of employment laws and of gaps in international trade agreements, notably the inadequate protection of labour standards and the woeful lack of requirements that contractors for public sector work should abide by ILO conventions ratified by the UK. Ministers have been keen to distinguish between trade deals rolled over from pre-existing EU trade agreements and new deals yet to be struck independently of the UK. The focus of the Trade Bill is on the former, but if these are to be the foundations for future UK trading relationships in the post-Brexit period, they hardly look secure: far from it. Instead, the Bill is full of holes.

This amendment seeks to fill in some of those holes. It guards against regulations implementing any trade deal that permits investor-state dispute settlement arrangements that expose democratically decided laws to potential threat from foreign companies claiming billions in compensation for supposed losses. My noble friend Lord Hendy spelled out examples and I will add two others. These are not hypothetical threats. Canada has been sued for a moratorium on fracking in Quebec, and Mexico for attacks on sugary drinks to fight diabetes. The amendment will also prevent trade deals that contravene international standards of labour law, such as ILO conventions to which the UK is committed and articles of the European Social Charter, ratified by the UK.

Succeeding in global markets today demands more than matching your competitors’ prices. It means setting fresh standards of product quality and providing unparalleled levels of customer service. That can be done only by adopting world-class ways of working and by treating your workforce with respect for the standards set by ILO conventions. For the life of me —I mentioned this when I last spoke in this Committee—I do not understand why the Government are not accepting these amendments, unless they have an entirely different deregulated, low-labour-standards, low-tax, Singapore-on-Thames agenda for Britain. So I hope that the Minister will reassure us on that point when he replies.

[Baroness Blower (Lab) [V]]

My Lords, I am pleased to speak on Amendment 17, to which I have added my name.

While the history of trade negotiations may not be completely littered with the fragments of failed attempts, it is certainly the case that the Transatlantic Trade and Investment Partnership, TTIP, failed, after several years of negotiations, to come to any conclusion. In Britain, much of the opposition was on the basis of the perceived—and I believe very real—threat to our NHS: the threat that the NHS would not survive as a public service and that the writ of privatisation would run ever more unchecked. I was pleased to hear a most eloquent speech from the noble Lord, Lord Patel, offering a catalogue of already privatised and outsourced elements from our NHS, and, significantly, pointing out the dangers that this posed.

Equally, the opposition to TTIP, not just in Britain but across Europe, focused, as my noble friend Lord Hendy said, on the investor-state dispute settlement mechanism—ISDS. My noble friend gave chapter and verse on the reasons for opposing ISDS. I concur with his remarks and associate myself with those of my noble friend Lord Hain.

Let me add a perspective from the United Nations, specifically from the United Nations Conference on Trade and Development. As the Committee might expect, ISDS features in UNCTAD reports. In May of this year, we find the following in one of its reports:

“Foreign investors have used ISDS claims to challenge measures adopted by States in the public interest (for example … to promote social equity, foster environmental protection or protect public health)”—


all issues close, I am sure, to the hearts of many in this House. The report goes on:

“Broad ISDS mechanisms typically used in old-generation”


international investment agreements

“provide for the contracting parties’ advance consent to international arbitration and are characterized by broad scope, few conditions for investors’ access to ISDS and a lack of procedural improvements. As ISDS is at the heart of the IIA reform process, in recent IIAs countries have carefully regulated ISDS and at times omitted it”

completely.

UNCTAD goes on to make a number of recommendations, but I shall confine myself to this one:

“Replacing ISDS by settling disputes in domestic courts and/or through State-State dispute settlement”.


In July, UNCTAD returned to the question and said:

“Policy responses taken by governments to address the COVID-19 pandemic and its economic fallout could create friction with existing IIA obligations. This highlights the need to safeguard sufficient regulatory space … to protect public health and to minimize the risk of”


ISDS proceedings.

There are huge problems with the ISDS mechanism, from Philip Morris to the Portuguese metro and so many more. It would therefore be wise for the Government to heed the words of the United Nations—but, more so, to heed those of my noble friend Lord Hendy. ISDS should have no place in our future trade arrangements. I will listen extremely carefully and with great interest to the response from the Minister.

[Baroness Kramer (LD) [V]]

My Lords, I will speak to Amendments 43 and 44, which again deal with dispute resolution. In a way, these amendments need to be seen together, because Amendment 44 is perhaps a patch on the current system, while Amendment 43 takes us forward towards a resolution so that we can structure a suitable mechanism for dispute resolution under trade agreements.

Amendment 44 requires that legal proceedings against the UK under an ISDS would be heard in the UK courts. Essentially, it picks up the point made by the noble Baroness, Lady Blower, that one of the recommendations of dealing with the most egregious aspects of ISDS is to throw the issues back into the domestic courts. It provides a patch that would help us get through this immediate set of problems, because suddenly transparency, fairness and respect for domestic law come into the picture.

I am not going to repeat all the arguments already made very powerfully by the noble Lords, Lord Hendy and Lord Hain, and the noble Baroness, Lady Blower, about the flaws in ISDS. I think we can all accept that it is generally regarded as unfit for purpose in a modern, complex economy, with trade agreements that now cover so many issues. We probably all share the concern that rolling over existing ISDS in continuity agreements is generally very undesirable because it sets such a clear precedent for using ISDS again in future trade agreements. I think we all have a particular eye on the US FTA negotiations and are very concerned about ISDS provisions appearing in that.