Trade Bill

Baroness Chakrabarti Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, I believe I am unmuted. What an excellent debate. I join the welcome from across the House to the Minister and the right reverend Prelate the Bishop of Blackburn.

The Bill in its current form is at best a missed opportunity and at worst something a little more troubling still. It is a missed opportunity to safeguard parliamentary sovereignty and respect for devolution and for detailed scrutiny of trade policy. As others have said, it provides a lack of structures for that purpose. I also draw your Lordships’ attention to the sweeping delegated powers that are a key feature of this legislation, to which I really hope many noble Lords will return at future stages.

It is a missed opportunity to prioritise human rights, workers’ rights, food standards and, in particular, the fight against impending climate catastrophe as pillars of ethical trade policy in the vital years ahead. In its current form, it is a missed opportunity to enshrine protections for the world-envied treasure that is our National Health Service, watched in admiration by ordinary vulnerable people everywhere and especially during this current terrible pandemic—yet stalked greedily by many corporate interests that would seek to plunder its sensitive datasets and commoditise the healthcare that, in Britain at least, has been seen as a universal human right for 72 years.

The Government say—the Minister said it very ably—that this is just continuity legislation, so we need not seek extensive safeguards here. No doubt we will in due course be asked time and again to trust the Executive and their new personnel. But the likes of Mr Tony Abbott, with his expressed views and values, are on the way in to this Administration at just the time when the likes of Sir Jonathan Jones, head of the government legal department, appear to be on their way out. In the light of all this, I really hope that, following this passionate, expert and visionary debate, your Lordships’ House will feel confident to approach the Bill’s future stages with muscular scrutiny and confident amendment, especially in relation to rule of law issues.

Trade Bill

Baroness Chakrabarti Excerpts

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

[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.

[Lord Alton of Liverpool (CB)]

My Lords, I have pleasure in speaking to Amendment 33, which enjoys support from across your Lordships’ House. It appears in my name and those of the noble Lords, Lord Blencathra, Lord Adonis and Lord Rooker. I am also grateful to the noble Lord, Lord Stevenson of Balmacara, for his remarks in opening the debate on this group of amendments.

As the noble Baroness, Lady Bennett of Manor Castle, said, at a meeting this morning of the All-Party Parliamentary Group on Hong Kong—of which I am vice-chairman—the noble Lord, Lord Patten of Barnes, expressed his support for this amendment and Amendment 68, which we will come to in due course and which homes in specifically on trade deals with states accused of genocide. The Committee may be interested to hear a little more of what the noble Lord, Lord Patten, said this morning. I quote him verbatim:

“China has over the years broken both the spirit of what it had agreed to with the WTO negotiations and in many respects made a mockery of the letter, so that you cannot invest in China in the same way that China can invest here. China is involved at the moment in predatory purchasing wherever it can.”


He went on to give instances of the imbalance, citing the example of robotics from Kuka, and of the interference and intimidation which follows when, for instance, a country speaks up for the beleaguered Uighur community or hosts the Dalai Lama. He described the Chinese Communist Party as

“a regime which regards business, as well as the state-owned enterprises, as part of the political project.”

At this stage, Amendment 33 is an attempt to open a debate on three things. First, what should be the constraints on business as usual with states which are undemocratic? Secondly, what regard do we have to our critical infrastructure? Thirdly, in making trade deals, what should be the role of Parliament? This is something on which we have focused a lot already in the opening stages of this Committee debate on the Trade Bill; what should be the role of Parliament if these first two conditions become matters of contention? I particularly agree with the earlier remarks of the noble Lord, Lord Blunkett, and, again, the noble Lord, Lord Stevenson.

In tabling Amendment 33, I return to issues that I raised at Second Reading of this Bill, as well as in Committee and on Report on the telecommunications infrastructure Bill. I know that some noble Lords, including my noble friend Lady Falkner of Margravine, will have concerns about drawing these provisions more tightly. Between now and Report, there will be time to address that point, preferably with the help of the Government. I should say that the noble Lord, Lord Blencathra, has played a major part in the drafting of this amendment; I am grateful to him for doing so.

It would be helpful to the Committee if the Minister could say what progress has been made in bringing forward a human rights threshold—an amendment which, it was agreed, would come forward when we had our debate at the Report stage of the telecommunications infrastructure Bill and was promised for Third Reading of that now-delayed Bill. I have written about this to the Minister as well as to the noble Baroness, Lady Barran, the Minister overseeing the other Bill. It would be helpful if the Minister today could say what role the Government envisage for the Joint Committee on Human Rights in scrutinising trade deals; this might address some of the issues raised thus far.

Trade Bill

Baroness Chakrabarti Excerpts

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

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, I offer a gentle reminder that all mics in the Grand Committee are live at all times. If everyone’s mobile devices could be on silent and their notifications muted, it would be greatly appreciated.

[Baroness Chakrabarti (Lab) [V]]

My Lords, in the light of the way we have spent much of the past hour, I begin by recording my thanks to the members of your Lordships’ House’s staff who have been extraordinary in their patience and calm with the technical difficulties that we have all suffered. They have held everyone’s hand and been wonderful under fire.

It is my absolute privilege to follow the speeches we have just heard, particularly those of my noble friends Lord Hendy, Lord Hain and Lady Blower. I have lent my name to Amendment 17, drafted by my noble friend Lord Hendy. But before I speak to it, I will make a preliminary point of law that is relevant not just to Amendment 17 but to many of the amendments that your Lordships have discussed during these many hours of debate in Grand Committee, which I have had the delight of listening to very closely.

In the community and in the country at large, it is understood that it is dangerous to pontificate about the law and give legal advice without a certain level of qualification. That is so well understood that the profession is regulated and there are tight legal limits. That cannot be the case in the business of legislation, of course, because there is politics and policy on the one hand and the law on the other, with the journey—the process of legislation—in between. So, although I think that dinner-table lawyers are almost as dangerous as armchair medics or epidemiologists, I do understand that making claims about the law during legislative debates is sometimes an occupational hazard.

Your Lordships’ House is criticised in many quarters, but one thing that can often be said of it is that it contains a great many experts who contribute expertise from different areas of life and practice to the business of scrutinising legislation. My noble friend Lady Blower mentioned the noble Lord, Lord Patel. I do not think that she is alone in having benefited from his contributions, from a medical and public perspective, to your Lordships’ Grand Committee.

Of course, my noble friend Lord Hendy, who drafted Amendment 17, has been a practising barrister for 48 years—he will forgive me for pointing this out—working in particular as a labour lawyer but also on legislation and legal disputes, and he has spent 33 of those years in silk as one of Her Majesty’s Queen’s Counsel. So noble Lords can imagine that he would not have drafted an amendment to the Bill if it were outside the scope of the Bill; or, if he had, or if other noble Lords had drafted amendments that were beyond the scope of the Bill, the amendments would not be entertained in this way. They would not appear on the Order Paper and your Lordships would not have been asked to waste so many hours debating them.

That brings me to my preliminary point of law. In the many hours of Grand Committee that I have listened to in recent days, I have heard claims made, at times by the Minister and at times by some of his noble friends, notably the noble Lord, Lord Lansley, and others, suggesting that various amendments trying to restrict the vires of the regulation-making powers in this Bill are somehow beyond the Bill’s scope, or are irrelevant, or would clutter up the statute book—that was one comment I heard—or are otherwise inappropriate because they seek erroneously and improperly to clip the Executive’s wings when they are out trying to make trade agreements. That is one argument to the House that has emerged in your Lordships’ Grand Committee. Another argument that has been made is that the amendments completely miss the point of this draft legislation, because this legislation is purely about so-called continuity or rollover trade agreements; therefore, there is no need to place any additional hindrances or fetters on the regulation-making powers in the Bill to implement these rollover or continuity—other similar phrases have been used—trade agreements.

Well, the politics and the policy can come later, but let us be straight about the law here. That is just not correct. As a matter of law, that is not what is provided in the Bill, which allows for trade agreements, albeit with parties that have already been in an agreement with the European Union. They are trade agreements and there are regulations to be made under those trade agreements to implement them. That is the law. That is not spin. That is not politics. That is the law and the effect of this legislation.

Therefore, it is important to pre-empt the comments that will no doubt come from the Minister in due course and point out that it is completely appropriate for your Lordships and this Grand Committee to use amendments that have clearly been ruled as within the scope of the debate to restrain the vires, or the power, to make these regulations: that is, to say that it is perfectly appropriate that the regulation-making powers to implement these trade agreements—whether you call them continuity agreements or rollover agreements or even Charlie—can be constrained. Many amendments attempt to do that.

Your Lordships are perfectly free to say that some of the constraints should not be there as a matter of politics or policy: indeed, to say that we should not protect the NHS, workers’ rights, environmental standards, et cetera. That is fair for political and legislative debate, but in my view it is not okay—it is not straight talking with Members of your Lordships’ House—to suggest that these amendments are somehow beyond scope or inappropriate for debate in this way. I am afraid that, whatever else we are, some of us are lawyers first and last, just like some of your Lordships are distinguished medics, career politicians and so on. That is quite important.

This brings me to Amendment 17, and ISDS in particular. Obviously, this is dealt with with some care and precision in my noble friend Lord Hendy’s amendment, to which I have added my name, but I noted that, during the many hours of debate, other Members of the Committee have spoken to the evils of this system of secret justice, if such a thing is even possible. It seems to me that, whatever our differences in this Grand Committee and in your Lordships’ House, all Members ought to be concerned about ISDS and should seek to rule it out from being implemented by way of regulation-making powers in this Bill. In other words, if there is to be ISDS in future, it should require a new, separate Act of Parliament that can be consulted on and aired publicly, and debated line by line in both Houses of Parliament. All Members of your Lordships’ House, whether they are socialists, Greens, Liberals or Conservatives, ought to be scandalised by ISDS.

What is more, all people in our nations should be alarmed by the practice of ISDS, whether they voted to leave the European Union or to remain. Why? In a nutshell, because this practice prioritises unelected, unaccountable corporations over democratically elected Governments and the people they serve. That is the first reason. The second reason is that, as other noble Lords pointed out, it prioritises foreign corporations over domestic businesses. That cannot be right either.

Trade Bill

Baroness Chakrabarti Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Tuesday 15th December 2020 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, my memory goes back to Committee and the powerful speech of the noble Lord, Lord Hendy, who set out the arguments against ISDS extremely well. There was a lot of powerful argument there. But I am also grateful for the intervention of my noble friend Lord Lansley, who always manages to sow those little seeds of doubt as to whether we are going in the right direction. Notwithstanding those seeds of doubt, I believe we are going in the right direction with these amendments, on the simple basis that ISDS permits any investor in this country to sue the UK Government for anything that might harm their profits in any way.

Therefore, I have one particular question on this matter for my noble friend Lord Grimstone. I believe I am right in saying that, since 1986, we have had an ISDS agreement with China. If that is the case, are the UK Government not widely exposed on the Huawei case? In relation to banning Huawei from operating in this country, there is no clause within the agreement, as I understand it, that says that we can ban a company from operating for national security purposes—so is not the UK hopelessly exposed? As a result of that, should not all our bilateral agreements be rethought, as suggested by my noble friend Lord, Lansley, because there is this loophole?

My second question to my noble friend concerns the Government’s eagerness to join the Trans-Pacific Partnership. As my noble friend will be aware, New Zealand is seeking an exemption from the ISDS. In our negotiations to join this organisation, will we also seek an exemption from ISDS, and if not, why not? If New Zealand has set a precedent, it would be only logical for us to follow because that must be the right way forward.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure briefly to follow those who have already spoken on this group, and I support Amendment 19 in particular. I am no expert in international trade law, but I rest assured that my noble friend Lord Hendy will speak very shortly.

Briefly, my concerns about ISDS are that the mechanism overrides the supremacy of Parliament—including your Lordships’ House and the other place—overrides the domestic rule of law, discriminates on grounds of nationality in favour of foreign investment corporations and prioritises the profits of investor corporations over people and the planet, as we heard from the noble Baroness, Lady Bennett of Manor Castle. Therefore, I see the mechanism as a fundamental challenge to the rule of law, both domestically and internationally, and not what taking back control is about in the minds of most people in the United Kingdom and further afield, I suggest.

My one question to the noble Baroness, Lady Kramer, who spoke so clearly about her own concerns, is: will the multilateral tribunal that she anticipates really be capable of addressing those fundamental concerns about prioritising corporations over the wider public interest—climate catastrophe, human rights and so on? Will it be capable of designing something that is not the wolf in sheep’s clothing that the noble Baroness, Lady Bennett, described? With those concerns firmly on the table, I support Amendment 19.

[Baroness McIntosh of Pickering (Con)]

My Lords, the authors and mover of these two amendments have done the House a great service. I welcome my noble friend the Minister to his place for the first of these debates that he will be summing up this afternoon. This is a very vexatious area in trade disputes, and it has been very much at the fore of this critical stage of an agreement on free trade with our EU partners— I know that is not the subject of this afternoon’s debate. It is worrying that, at this late stage, we are still arguing—and have been for two years, since the European Union (Withdrawal) Act was passed—about what the dispute resolution mechanism will be.

I will make a general point: it is extremely important at this stage that we know what the dispute resolution mechanisms will be. I place on record my acceptance as less than satisfactory of the arrangements of the World Trade Organization. I think it fair to say that the current position of the United States in this regard is less than clear. As I understand it, in his time, President Obama made moves to remove the US from the general World Trade Organization dispute resolution mechanism scheme—the next stage after disputes have been raised. It is by no means clear, and I have not yet heard—I may have missed it—what the incoming Biden Administration will do in this regard.

My noble friend Lord Caithness mentioned the Huawei decision, and, obviously, we are also caught, as I understand it, in the Boeing situation, with infringement tariffs being whacked on us for the Airbus scenario—and, latterly, we have come forward, seeking to do the same to Boeing, for similar infringements of the World Trade Organization arrangements there. As such, I am very uneasy that, in the current state of the Bill, I do not see any reference to what the dispute resolution mechanism will be in the agreements that fall under this—unless I have missed it—so I would like confirmation of what that resolution mechanism will be.

I welcome that the noble Baroness, Lady Kramer, said that the UK has been at the forefront of setting this in the EU-Canada arrangement—but then my noble friend Lord Lansley said that those arrangements have never been brought into effect in relation to the EU. This is a very grey area, and it is vital that, before the Bill leaves Parliament, we know what the dispute resolution mechanism in this regard will be. Mindful of the lengthy debate that we had in Committee, I seek further clarification at this stage, using these two amendments as an opportunity to probe in this regard.