Trade Bill

Baroness McIntosh of Pickering Excerpts

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

Moved by

[Baroness McIntosh of Pickering]

2: Clause 2, page 2, line 18, at end insert “and where the new agreement is in wholly or substantially similar terms to that between the partner country and the EU.”
Member’s explanatory statement
This amendment would limit the application of delegated powers to the “roll-over” of existing agreements.

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

My Lords, I am delighted to speak on Report and, in particular, to speak to and move Amendment 2 and speak to Amendment 3. I would like to think that the amendments are fairly self-explanatory but, effectively, they both seek to

“limit the application of delegated powers to the ‘roll-over’ of existing agreements”—

exactly as is set out in and is the intention of the Explanatory Notes. The reason for this is that the clause, as currently drafted, grants powers to implement agreements between the UK and our EU partner countries.

The Law Society of Scotland—to which I am grateful for briefing me and helping me to draft this amendment—has brought to my attention and alerted me about its concerns about the delegation of powers to implement a free trade or international agreement that relates mainly to trade. It believes, in relation to reassurances that have been given that these powers could be used only for continuity measures, that the Bill itself does not limit the use of these regulation-making powers to implementing continuity Bills.

--- Later in debate ---

[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.

Amendment withdrawn.

--- Later in debate ---

The improvement suggested here would ensure a more rational sequence for debate and for relevant consequent primary and secondary legislation. Amendment 12 seems to me a useful addition but, as the noble Lord clearly appreciates, it is no substitute for the essential scrutiny requirements of the cross-party Amendment 6. As my noble friend Lord Purvis emphasised, nothing compares in clarity with inclusion in the Bill. The restatement of a convention, or even a Written Ministerial Statement, is no substitute for inclusion in the law of the land. As far as I can see, these two amendments are entirely complementary, and I hope the Minister will accept them both as clearly strengthening the whole Bill.

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

My Lords, these two amendments have much to commend them and dovetail neatly with parts of my Amendment 7, which we will consider in a moment: in particular, that any trade agreement or report from the Trade and Agriculture Commission should be laid before Parliament in sufficient time for it to be considered. I will go into more detail when we come to that group of amendments, but it would also extend the period during which a vote shall be held in each House to up to 42 days, so there is an overlap between Amendment 6 and my Amendment 7. This is important for the reasons set out by the noble Lord, Lord Purvis, my noble friend Lord Lansley and others, particularly, the noble and learned Lord, Lord Goldsmith, who chairs the committee and speaks with great authority on these issues. There must be time for both Houses of Parliament to consider those agreements, in the terms set out by the noble Lord, Lord Purvis, and others supporting Amendment 6.

I refer again to the useful table included on page 77 of the National Food Strategy, part 1, which I refer to as the Dimbleby report, part 1, which sets out the scrutiny of trade agreements in the various legislative Chambers. It is true that in Australia, Parliament must vote on legislation to implement a trade agreement only where it requires changes to national laws. However, tariffs are set in statute in Australia, so that effectively gives Parliament a vote on trade treaties. For TTIP, the House in Australia spent two days debating the treaty and the Senate one day. In Canada, as in Australia, Parliament does not have a formal vote on treaties; the Executive must lay a deal before Parliament 21 days before any action to implement the agreement is taken. However, as in Australia, Canada’s tariffs are set in statute, so again, Parliament inevitably needs to vote on the deal as a whole as well as any implementing legislation.

Perhaps the most thorough—albeit that we are leaving the European Union—is the European Union process itself. In New Zealand, Parliament must vote on legislation to implement the trade agreement, which means that the treaty is voted on again by the House only if it requires a change in domestic legislation. It has already been said that in Japan, the approval of the National Diet, the Japanese Parliament, is required for any trade agreement to come into force, and in Switzerland, all trade agreements must be approved by the Federal Assembly, the Swiss Parliament. If 50,000 Swiss citizens request it, they must be put to a referendum. Our scrutiny of trade agreements—not continuity agreements but new agreements, where, as the noble and learned Lord, Lord Goldsmith, identified, there is no underlying EU agreement—is deficient compared to that of other national jurisdictions and Parliaments.

I have sympathy with Amendment 6, although I will go on to explain when we come to the group beginning with Amendment 7 why I believe that my wording is preferable.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. I support the objectives of Amendment 6 in the name of the noble Lord, Lord Purvis, and colleagues, which seeks to ensure that trade deals are subject to parliamentary scrutiny and that consultation takes place with the devolved Administrations, a feature that is currently missing. This is particularly acute as we have just three weeks until the end of the transition period and do not know whether there is to be a trade deal or whether, if agreed, it will be zero tariff, or whether the UK will be operating under WTO rules.

This amendment, in the names of the noble Lord, Lord Purvis, and other noble Lords, has been supported by the Trade Justice Movement and Greener UK. It has five properties, which are very important for the scrutiny of trade deals. First, before negotiations, there will be a debate and vote by MPs on the Government’s negotiating objectives; secondly, during negotiations, there will be additional scrutiny through a dedicated parliamentary committee; thirdly, after negotiations, there will be a vote in both Houses on a final deal, prior to ratification; fourthly, there will be mandatory sustainability impact assessments on the impact of the new trade deal on the environment, public health, human rights and global development; and, fifthly, there will be consultation with the devolved authorities. As the noble Lord, Lord Wigley, said, those things absolutely are important. Coming from Northern Ireland and having been a representative of the devolved institution there, I say that it is important that we recognise and acknowledge the devolution settlements.

Those five provisions offer a considerable improvement on the level of parliamentary scrutiny of trade deals in the UK, whose processes lag behind those of the EU and other countries. The current treaty scrutiny system, as outlined in the CRaG Act, is inadequate and has been criticised by five parliamentary committees, including the Lords Constitution Committee and the Lords International Agreements Sub-Committee.

Modern trade agreements affect large parts of public policy, including consumer and workers’ rights, environmental and climate change legislation, food standards, health, public services and international development. In such a context, it is vital that trade deals are developed democratically. I support Amendment 6. I also support Amendment 12, in the name of the noble Lord, Lord Lansley. If the noble Lord, Lord Purvis, eventually presses his amendment, I will support him in the Lobbies this evening.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

7: After Clause 2, insert the following new Clause—
“Trade and Agriculture Commission
(1) A body corporate called the Trade and Agriculture Commission (“TAC”) is established.(2) The TAC must establish criteria for maintaining standards equivalent to standards applied within the United Kingdom at the time of import for goods imported under a trade agreement between the United Kingdom and any other state.(3) When the Secretary of State is undertaking negotiations for an international trade agreement on behalf of the United Kingdom with another state, the Secretary of State must consider any advice given by the TAC for the purposes of ensuring that the international trade agreement does not reduce or compromise standards.(4) A Minister of the Crown may not lay a copy of an international trade agreement before Parliament under section 20(1) of the Constitutional Reform and Governance Act 2010 that contains provisions relating to the importation of goods into the United Kingdom unless Conditions A, B and C have been met.(5) Condition A is that the TAC has prepared a report assessing the extent to which the international trade agreement is likely to reduce the ability of the United Kingdom to maintain standards.(6) Condition B is that a Minister of the Crown has laid the report before Parliament.(7) Condition C is that each House of Parliament has agreed a motion, moved in accordance with subsection (8) by a Minister of the Crown, that the international trade agreement does not diminish standards within the meaning of this section.(8) So far as practicable, a Minister of the Crown must make arrangements for the motion mentioned in subsection (7) to be debated and voted on by each House of Parliament within a period of 42 days beginning with the day on which the report was laid under subsection (6).(9) In this section, “standards” means standards relating to—(a) animal welfare, (b) protection of the environment,(c) food safety, hygiene and traceability,(d) plant health, and(e) employment and human rights.(10) Schedule (The Trade and Agriculture Commission) makes further provision about the TAC.”

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

My Lords, in moving Amendment 7 I will speak also to Amendment 44 and to the government amendments in this group. I take this opportunity to thank the Minister, my noble friend Lord Grimstone, for reaching out to those of us with an interest in this group of amendments with the meeting that was held between Committee stage and today, and for coming forward with the government amendments in his name.

At that meeting, there were a number of potential deficiencies in the anticipated amendments to the Trade Bill, as outlined by my noble friend Lord Grimstone, that we now have before us today. In particular, a number of us expressed concern about the absence of labour and human rights standards being upheld—as was contained in the original Fairhead amendment, now superseded by Amendment 6. We also expressed concern about the fact that the independence of the Trade and Agriculture Commission still seemed to be in doubt as, at the time, there was no reference to resources, staffing, offices, et cetera, and new appointments would need to be made, as the current members of the Trade and Agriculture Commission were initially appointed for a period of six months and are unpaid, as I understand it. We were also concerned about the extent to which Parliament would have a role in scrutinising these appointments and what form that scrutiny would take. There was also, again, a general lack of understanding about the exact form of scrutiny, and about the timing of the report from the Trade and Agriculture Commission, and further reports of individual trade deals as negotiated, that Parliament would receive and what the procedure was for looking at that.

Taking these points in turn, I will first go through my Amendments 7 and 44. As I say, I am grateful to my noble friend for coming forward with his amendments, which I believe will, for the most part, resolve many of my concerns. It was remiss of me not to thank the noble Baronesses, Lady Henig, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, for their support for Amendments 7 and 44, and I take this opportunity to do so—I am most grateful to them.

The thrust of Amendment 7 is that the Trade and Agriculture Commission

“must establish criteria for maintaining standards equivalent to standards applied within the United Kingdom at the time of import for goods imported under a trade agreement between the United Kingdom and any other state … When the Secretary of State is undertaking negotiations for an international trade agreement … with another state, the Secretary of State must consider any advice given by the TAC for the purposes of ensuring that the international trade agreement does not reduce or compromise standards.”

In subsection (4) of the proposed new clause, we set out that:

“A Minister of the Crown may not lay a copy of an international trade agreement before Parliament under section 20(1) of the Constitutional Reform and Governance Act 2010”—


which we have called “CRAG” throughout these proceedings—

“that contains provisions relating to the importation of goods”

unless certain criteria have been met. We set out those criteria in subsections (5), (6) and (7): first,

“that the TAC has prepared a report assessing the extent to which the international trade agreement is likely to reduce the ability of the United Kingdom to maintain”

its own standards; secondly,

“that a Minister of the Crown has laid the report before Parliament”

and, thirdly,

“that each House of Parliament has agreed a motion, moved in accordance with subsection (8) … that the international trade agreement does not diminish standards within the meaning of”

subsection (8), where we state that that Motion should

“be debated and voted on by each House of Parliament within a period of 42 days beginning with the day on which the report was laid”.

This builds on the argument that we have had on the preceding Amendment 6 and subsequent amendments in this group. In my view, the period of 21 days is simply not enough time to take these arguments into consideration, and a period of up to 42 days—it need not take the whole of that—would be more appropriate.

We set out in subsection (9) what the standards mean. In addition to

“animal welfare … protection of the environment … food safety, hygiene and traceability … plant health”,

we add, in paragraph (e), what I know is of considerable importance to a number of noble Lords: “employment and human rights.” I do not believe that those appear anywhere else. I would be interested to know the extent to which my noble friend is prepared to look at employment and human rights, as they are generally understood to be terms and standards that are met. I think it was involved in previous negotiations and possibly also in the Fairhead amendment.

The main thrust of Amendment 44 goes to the point that I raised earlier about the independence of the Trade and Agriculture Commission. It is very similar to, but goes further than, that in the name of my noble friend Lord Grimstone: we suggest that we take the standard wording here, that:

“The TAC is not to be regarded … as the servant or agent of the Crown”


and that its property is also not to be considered as such, but add that:

“The TAC is to consist of … a Chair appointed by the Secretary of State … other non-executive members appointed by the Secretary of State … a chief executive appointed by the Chair with the approval of the Secretary of State or, if the first Chair has not been appointed, by the Secretary of State”.


At this stage I have a question for my noble friend the Minister about both Amendment 44 and his government amendment, which we shall come on to. Is it his understanding—certainly it would be our wish, and my fervent desire—that all these future appointments will follow the usual procedures where they have a pre-appointment hearing, particularly for an incoming chair of the Trade and Agriculture Commission? It may be the present chairman; indeed, it is my current hope that the present chairman of the commission will be reappointed but, as this will be a statutory body in future, under this group of amendments they would be subject to the pre-appointment hearings by the relevant Select Committee. I hope the Minister will confirm that that is his understanding as well.

We then set out the terms of appointment and tenure of members. I understand that we took this from previous such provisions, not least for the Trade Remedies Authority, which is also part and parcel of this Act. So we do not mean to be prescriptive; we are literally lifting, for shorthand purposes, these provisions that exist elsewhere and are tried, tested and understood. I hope the Minister will understand the basis on which we have drafted Amendments 7 and 44.

I turn to the amendments that the Minister has presented and will shortly move today. He will be pleased to hear that I like government Amendment 31 but, as I indicated earlier, there are a number of omissions from what is generally understood. The obvious one is employment and human rights, but I believe that food safety, hygiene and traceability are also very important. That has been covered in debates in this House and in the other place.

Government Amendment 34 seems to cover a lot of the ground that is in Amendments 7 and 44, as previously discussed. I ask for clarification on subsection (2), which inserts the words:

“In preparing the report, the Secretary of State must”,


and then goes on to say,

“except insofar as they relate to human life or health”.

There is a general understanding regarding this. I know that a previous amendment was carried in the name of the noble Lord, Lord Stevenson, that failed to mention the original Article 36 provisions of the Treaty on the Functioning of the European Union, which refer to public health and safety, although I forget the actual wording. I seek clarification that that is in fact what the Minister is referring to here.

Obviously, I am delighted that, under subsections (3) and (4), there will be a report of advice received, which I presume will be laid. What appears to be missing here is whether that report will be debated. Does the Minister understand that to be the case, or is it not the Government’s intention that it would be debated?

Government Amendment 35 shares many of the provisions that we have set out in Amendment 44, giving a degree of independence that is most welcome, and I thank the Minister for tabling that amendment. Again, if I may seek clarification, in the new clause inserted by Amendment 35, subsection (1) is fairly standard, but subsection (2), which mentions

“staff, accommodation, equipment or other facilities”,

omits any mention of resources, and I wonder if that is intentional. That omission has to be seen together with that in subsection (3), which says:

“The Secretary of State may pay, or make provision for paying, expenses to any member of the TAC in connection with the preparation of advice”.


Again, that does not actually say if there is a limit to the resources or the extent to which those provisions will extend. Clarification there would be most helpful.

Then we come to government Amendments 49 and 50. I welcome the fact that Amendment 49 puts the Trade and Agriculture Commission on a statutory footing; that is something that many of us have held dear and which I have specifically requested during the passage of this Bill and indeed the Agriculture Act, so I thank the Minister warmly for that. I presume that government Amendment 50 is consequential in that regard, so those two amendments are absolutely welcome and I am most grateful to him.

Now I would like to pause and turn to government Amendment 36. It potentially effectively repeals the very existence of the Trade and Agriculture Commission, not just as set out in the provisions that we are debating in this group of amendments as part of the Trade Bill before us today but, as the Member’s explanatory statement says:

“This amendment would empower the Secretary of State to repeal provision relating to the Trade and Agriculture Commission if the Secretary of State’s duty to seek its advice under the Agriculture Act 2020 is repealed.”

--- Later in debate ---

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

My Lords, I am grateful to all who have spoken in this debate and in particular to the Minister for his response to the concerns that have been raised. His conclusion backs ours; nearly everybody who has spoken has spoken in favour of the permanency, beyond an initial three or six years, of the TAC. He himself just accepted that in his last few words.

To come back to the basic points: we all agree it is excellent that the government amendments put the TAC on a statutory footing. In the words of my noble friend Lady Jones of Moulsecoomb, that goes a little way but not far enough towards independence.

I am not sure I got an answer on which resources will be allocated. I realise it is not our place, in this House, to say that, but we did not get an answer on it. On the question of permanence, I will revert to that.

The noble Baroness, Lady Henig, identified a gap in all the amendments—government amendments and Amendments 7 and 44—in a lack of understanding about what government strategy for trade will be. I agree with her on that. Why would we want to tie ourselves to all these commitments, which, inevitably, a CPTPP free trade agreement would involve, when we are tying ourselves up in knots regarding those with the EU? It also begs the question of why we have committed ourselves to a strict regime on state aid with the Japan free trade agreement, which goes further than what we are currently willing to agree to in a future trade agreement with the EU.

The noble Lord, Lord Grantchester, put his finger on the point in his last question, but also on the fact that the matter of standards is unfinished business, which we have carried over from the Agriculture Act. I join other noble Lords in paying tribute to all the farm organisations—the NFU, the TFA, the CLA and all the green organisations, which have been united with the public. The noble Baroness, Lady Boycott, mentioned the 1 million signatures we had that gave rise to amendments in this group, which were previously tabled during the passage of the Agriculture Bill.

My noble friend Lord Caithness was right to stop at one and a half cheers. Both he and the noble Lord, Lord Curry of Kirkharle, have identified the need to know more about what the membership of the Trade and Agriculture Commission will be going forward Although my noble friend the Minister has put a little more meat on the bones, it is still vague.

I did not understand entirely whether the relevant committee, especially in the Commons, will be entitled to do a public appointment hearing regarding the future chair, or the reappointment of the current chair, of the TAC. My noble friend may have misunderstood the role of human rights issues and employment law in this regard. These are now standard in agreements before the World Trade Organization and international agreements, so I am slightly surprised that he thought I was seeking to undermine the Equality and Human Rights Commission in this country, which of course was not my intention.

On independence, I am not sure that we are 100% where we should be, certainly on resources. It would have been helpful to have further clarification. I have made my point about how appointments should be scrutinised by the relevant committee and I stand by that. I am sorry if I did not hear my noble friend confirm that. Also, when my noble friend says that reports on agreements will be “laid before Parliament”, I presume he means that they will be debated and voted on in the usual way.

It would be more helpful than anything else if my noble friend would withdraw government Amendment 36 at this stage. I do not think that it has been drafted clearly and it does not sum up the debate that we have heard on this group. What compounds this is that, on a closer reading of government Amendment 34 on which my noble friend has relied in summing up his arguments, the review to which he has referred, in subsection (4) of government Amendment 34, allows that, in subsection (6B) of proposed new Section 42 of the Agriculture Act:

“The Secretary of State may by regulations repeal subsections (4A), (4B) and (6A), and amend subsection (5) to remove reference to advice requested in accordance with subsection (4A)”


That of course is the very advice that is the subject of this group of amendments: requesting advice from the Trade and Agriculture Commission on the matters referred to in subsection (2) of the new clause

“except insofar as they relate to human life or health.”

I also did not quite understand what the Minister said in summing up how the Government will report. He said that the TAC will report on so much as regards advice, but not on public health. He did not outline how or when that duty will be exercised in terms of future trade agreements, which body would be doing those, and to whom that advice would be tendered if it is not going to be tendered by the Trade and Agriculture Commission.

I think that the will of the House has been expressed strongly this evening that public health and food security should continue to be included. I do not know whether I have an opportunity to revert to my noble friend to answer those two points before I decide whether to withdraw my Amendment 7.

[The Deputy Speaker (Lord Alderdice) (LD)]

Is the noble Baroness withdrawing her amendment? I cannot hear a response.

[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.

Amendment 7 disagreed.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Blackstone, has withdrawn, so I call the noble Baroness, Lady McIntosh of Pickering.

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

My Lords, I congratulate the noble Lord, Lord Collins, on so eloquently moving his amendment. He has done the House a great service and expressed himself much more clearly than I was able to do on subsection (9)(e) of the new clause proposed by my Amendment 7, where I briefly spoke about human rights. I ally myself with comments made by the noble Lords, Lord Collins and Lord Alton, my noble friend Lord Blencathra and, in particular, the noble and learned Lord, Lord Hope, whom I am delighted to follow. I was a little disappointed by the less-than-enthusiastic response by my noble friend the Minister to my raising of human rights in the context of Amendment 7, and I hope that he will do full justice to this group of amendments, which I intend to support if they are pressed to a vote.

[Baroness Noakes (Con)]

My Lords, my first point on these amendments is that I am fundamentally in favour of trade. It is a huge part of our history as a nation and is certainly part of our ambitions for our future outside the EU. Being in favour of trade does not mean that I am against human rights, but I believe that a mature trading nation has to be able to balance competing interests; for example, the desire for all nations to uphold the highest standards of behaviour towards their citizens against the economic well-being of our own nation.

Human rights abuses are not a black and white issue. At one extreme, there is appalling abuse, such as the treatment of the Uighurs in China—though we must not forget that China contests the facts. At the other extreme, there might be a nation state that has never committed a human rights abuse, but I am not sure one exists. The UK, for example, has been founding wanting by the European Court of Human Rights on several occasions, and our own courts have found the same. Importantly, there is a spectrum of grey where the difficult task of responsible government arises.

Both Amendments 8 and 10 envisage using the courts to decide whether a human rights abuse is one that could, in effect, override or cancel the free trade agreement. In the case of Amendment 10 in the name of my noble friend Lord Blencathra, this is explicit, but in the case of Amendment 8, the noble Lord, Lord Collins of Highbury—I think that I am quoting him correctly—said that the Government’s determinations under his new clause could be challenged by the courts. The courts in the UK may be good at determining whether human rights abuses have been committed in this country, but I do not believe that they are well placed to make any such determination in relation to overseas territories.

Furthermore, both amendments open our courts to vexatious claims by human rights activists of all kinds. I have a vision of our hard-pressed judicial system being swamped by the kind of litigation that is bound to follow if these amendments become law. It is not wise to invite our courts into the territory that is properly the domain of the Government’s foreign and trade policy; that would be a very poor outcome.

Amendment 8, unlike Amendment 10, does try to restrict itself to “serious violations”, but it defines them widely in subsection (5)(d) as

“other major violations of human rights and fundamental freedoms.”

I do not know what that means and I do not want our courts getting sucked into these sorts of issues, which are, inevitably, political judgments at the end of the day.

I have one fundamental objection to these amendments: they attack free trade agreements only. They do nothing about trade that carries on on WTO terms. We do not have a free trade agreement with China but we certainly trade with it. If noble Lords think that passing either of these amendments, or Amendment 9 in the next group, will do anything for the Uighurs in China, they are not being honest with themselves. We should be wary of using our power to legislate to do no more than virtue-signal.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to the health data aspects of Amendment 11, which has been mentioned and was so well introduced by the noble Baroness, Lady Thornton, and the noble Lord, Lord Freyberg. I would add to the point of the noble Baroness, Lady Thornton: I join her in deploring the fact that we are debating this group of amendments, which are so important in this area, impacting on the NHS, at this late hour.

NHS data is a precious commodity, especially given the many transactions between technology, telecoms and pharma companies concerned with NHS data. In a recent report, EY estimated that the value of NHS data could be around £10 billion a year in the benefit delivered. The Department of Health and Social Care is preparing to publish its national health and care data strategy in the new year, in which it is expected to prioritise the

“safe, effective and ethical use of data-driven technologies, such as artificial intelligence, to deliver fairer health outcomes.”

Health professionals have strongly argued that free trade deals risk compromising the safe storage and processing of NHS data.

Through this amendment, the objective is to ensure that the NHS—not US big tech companies and drug giants—reaps the benefit of all this data. This is especially important given what the Ada Lovelace Institute called in its report—The Data Will See You Now—the “datafication” of health, which, it says, has profound consequences for who can access data about health, on how we practically and legally define health data and on our relationship with our own well-being and the healthcare system. Health information can now be inferred from non-health data, and data about health can be used for purposes beyond healthcare. So harnessing the value of healthcare data must be allied with ensuring that adequate protections are put in place in trade agreements if that value is not to be given or traded away.

There is also the need for data adequacy to ensure that personal data transfers to third countries outside the EU are protected in line with the principles of the GDPR. Watering down the UK’s data protection legislation will only reduce the chances of receiving an adequacy decision. There is also a concern that the proposed National Data Strategy will lead to the weakening of data protection legislation, just as it becomes ever more necessary for securing citizens’ rights. There should, however, be no conflict between good data governance, economic growth and better government through the effective use of data.

The section of the final impact assessment of the Comprehensive Economic Partnership Agreement—CEPA—between the UK and Japan on digital trade provisions says that the agreement contains:

“Commitments to uphold world-leading standards of protection for individuals’ personal data, in line with the UK’s Data Protection Act 2018, when data is being transferred across borders. This ensures that both consumer and business data can flow across borders in a safe and secure manner.”


The Department for International Trade, as mentioned by the noble Lord, Lord Freyberg, issued a document headed “UK-JP CEPA—a good deal for data protection”. However, the agreement has Article 8.3, which appears to provide a general exception for data flows, where this is

“necessary to protect public security or public morals or to maintain public order”

or

“to protect human, animal or plant life or health”.

The question has been raised of whether this will override data protections and what its impact will be on access to source codes and algorithms. There is also the question of the combined effect of Article 8.84, on the free flow of data, which provides that:

“A Party shall not prohibit or restrict the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.”


Article 8.80, on personal information protection, says:

“Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes.”


It is all very well making reassuring noises, but what public legal analysis of the language in the relevant articles—and how advocacy will be permitted despite this—are the Government going to provide? Why, for instance, are these articles included, which the EU for its part will not sign up to? Unless the Government do this, there will be zero trust in future trade deals, especially regarding the US.

To date, there have been shortcomings in the sharing of data between various parts of the health service, care sector and Civil Service. The development of the Covid-19 app and the way the Government have procured contracts with the private sector for data management have not improved public trust in their approach to data use. There is also the danger that the UK will fall behind Europe and the rest of the world unless it takes back control of its data and begins to invest in its own cloud capabilities. Specifically, we need to ensure genuine sovereignty of NHS data and that it is monetised in a safe way, focused on benefiting the NHS and our citizens.

With a new national data strategy in the offing, the Government can maximise the opportunities afforded by the collection of data and position the UK as a leader in data capability and protection. As Future Care Capital says in its briefing on the Bill:

“Any proceeds from data collaborations that the Government agrees to, integral to any ‘replacement’ or ‘new’ trade deals, should be ring-fenced for reinvestment in the health and care system, pursuant with FCC’s long-standing call to establish a Sovereign Health Fund.”


This is an extremely attractive concept. Retaining control over our publicly generated data, particularly health data, for planning, research and innovation is vital if the UK is to maintain its position as a leading life science economy and innovator. That is why, as part of the new trade legislation being put in place, clear safeguards are needed to ensure that in trade deals, our publicly held data is safe from exploitation, except as determined by our own Government’s democratically taken decisions.

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

My Lords, I refer to my entry in the register. This is a particularly important group of amendments, on health and the protection of data. I thank the noble Baronesses, Lady Thornton and Lady Sheehan, and the noble Lord, Lord Freyberg, for introducing them.

I will limit my remarks to the specific issue of data, which will be relevant to the recently reached super-agreement with Japan. It was discussed as recently as last week, when my noble friend Lord Grimstone spoke about the importance—I agree with him—of a greater exchange of data flows, particularly from that agreement. However, as the noble Lord, Lord Freyberg, said, it is extremely important, as set out in Amendment 11, to protect this data. I will give one example. The Government have been heavily dependent on vaccine trials for the three vaccines that are coming out. Would people readily submit to such trials and completing confidential surveys if there was any doubt that the data they submit would be treated confidentially?

If my noble friend Lord Younger of Leckie is not minded to support this amendment, will the Government table their own amendment to ensure the greater protection of data processing services?