Trade Bill

Lord Bassam of Brighton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

Moved by

[Lord Bassam of Brighton]

13: Clause 2, page 2, line 23, at end insert—
“(4A) Regulations under subsection (1) may make provision for the purpose of implementing an international trade agreement only if the provisions of that international trade agreement do not in any way restrict the ability—(a) to make public services at a national or local level subject to public monopoly;(b) to make public services at a national or local level subject to exclusive rights granted to private operators; and(c) to bring public services at a national or local level back into the public sector for delivery by public sector employees.”Member’s explanatory statement
This amendment would ensure that regulations made under the Bill can only be made if the trade agreement which the regulations would implement does not contravene the ability of a UK government to take public services back into public ownership.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I welcome the opportunity to open this important group and move Amendment 13 in my name. I indicate, at this point, that I shall be supporting Amendment 51. Protecting public services must be a priority for any Government, but we must not let bad trade deals limit the ability to provide this protection. In doing this, allowing services to be brought back into public ownership is one of the important tools Governments should not give away lightly or easily in negotiations. Concerns are well documented about how standstill and ratchet clauses in agreements can lock in levels of privatisation and other forms of liberalisation and accelerate them, which will limit the scope of future Governments to take sensible steps, when services are not being properly provided, to bring them back into the public sector.

Most US trade deals also contain forms of investor-state dispute settlement, which could allow foreign investors to sue the UK Government for actions that threaten their profits, including renationalising parts of the former public sector. ISDS does not pose a hypothetical threat, but a very real one. The Portuguese Government were sued using ISDS when the metro in Lisbon was returned to public ownership. ISDS clauses in bilateral investment treaties are being used now to prepare a series of cases against the UK Government for pausing construction contracts during the pandemic.

The TUC is particularly worried that the Bill does not exempt all public services from trade agreements, as this would allow part-privatised services to be included in commitments to reduce barriers to trade. When part-privatised services are included in this way, they cannot be brought back into public ownership as this would be regarded as a barrier to other countries being able to access the UK market. Only last week, the TUC expressed concern about the UK’s intention to join CPTPP, since CPTPP has no general exemption for public services.

Amendment 13 would ensure that regulations made under the Bill to implement agreements can be made only if they do not contravene the ability of a UK Government to take public services back into public ownership. Public services provide an essential public good. Ministers must not forget that as they seek to clinch a trade deal at any cost.

I indicated I will be strongly supporting Amendment 51, in the name of my noble friend Lady Thornton, to protect the NHS and publicly funded healthcare services in other parts of the UK from any form of control from outside the UK. If the Covid crisis has taught us anything, it is how reliant we are on the NHS and care services. The idea of them being put out to tender to foreign companies fills most of us with dread.

The Minister will undoubtedly say that the Government have made clear that the NHS will not be on the table in any trade deal, especially with the US. I am sure he will stress that we will not be paying higher prices for drugs, nor moving patient data across the Atlantic, but the US negotiating objectives for a UK FTA, in the section on procedural fairness for pharmaceuticals and medical devices, clearly call for “government regulatory reimbursement regimes” to provide

“full market access for U.S. products.”

The US President has clearly said that foreign Governments extort “unreasonably low prices” from US pharmaceutical firms, and he directed his trade negotiator to make the issue

“a top priority with every trading partner.”

The Prime Minister also made clear in a Telegraph article that he supports an insurance-based healthcare system for non-essential treatments.

I sense we are losing clarity, but we can provide it by supporting the amendment of my noble friend Lady Thornton. I believe that the lack of scrutiny mechanisms for trade agreements and the Government’s desire not to put NHS protections in the Bill are connected, and I am not the only one. The British Medical Association has said that under the Bill

“Parliament does not have adequate powers to guide and scrutinise trade negotiations and the current process provides no legal mechanism to directly influence or permanently block trade agreements. This could mean the UK enters into trade deals that have significant impact on public health and the domestic healthcare sector without Parliament having a meaningful role in scrutiny.”


We should heed that warning.

Global Justice Now has also found that the US wants its companies to have unrestricted access to UK data, including NHS health records. The value of this health data is estimated at £10 billion a year. The Bill in its current form could allow UK data to be moved to servers in America and stop the NHS from analysing its health data without paying royalties. This cannot be right and is not within the spirit of our approach to our healthcare system. Let us commit in statute to protecting our beloved NHS in trade deals, especially during this pandemic when we are relying on it the most.

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[Lord Bassam of Brighton (Lab) [V]]

My Lords, this has been a very long and wide-ranging debate on amendments which are pretty simple in their effect. I am grateful to all noble Lords who have supported my amendment and the amendment in the name of my noble friend Lady Thornton in particular. The thing that has impressed me most is that that support has come from right across the political spectrum with the notable exception of the Minister, my good friend the noble Baroness, Lady Noakes, and, of course, the noble Lord, Lord Lansley.

The noble Baroness, Lady Noakes, took me back to the time in the 1990s when she and I were engaged in fairly ferocious debate on the potential of PFI. As she courteously reminded the Committee, it was a debate that she lost. She then went on to say that I had been scaremongering. I do not think I was scaremongering then, and I do not think I am scaremongering today with this amendment, because it is pretty modest. It seeks to ensure that services can be taken back into the public service. As the noble Lord, Lord Fox, said, in a way it is trying to help to codify the Prime Minister’s words and commitments to keeping the public services public and being able to use the public sector in a particular way. That is the modesty of that amendment, and I am surprised that the Minister has not been able to accept it.

Surely, if he wants to reassure us—he worked very hard to, and I congratulate him on his reply—the most reassuring thing to do would be to accept our amendment to the Bill and put beyond any doubt the Prime Minister’s commitment by ensuring that we could keep services public, protect public services and bring things back into the public service where we needed to. Imagine if we were in a position now, with the Covid epidemic, where for some reason or another we had precluded us having the ability to bring back in-house test, track and trace. That would be disastrous. It is evident to all of us that test, track and trace as it is currently being operated by a number of private sector operators is not performing as well as it should. To say, ludicrously, that we could not use the public service to rectify that and improve it would surely be absurd. In a sense, that is where my argument leads: we should be able use the public service in that way.

It is a tradition, of course, and a matter of practice that in Grand Committee one should not press one’s amendment to a vote and one cannot, but this is an issue that we will have to return to when we get to Report. Although I shall read the Minister’s words of reassurance with great care, I do not think there was sufficient in them to provide the Committee or the House with the sort of reassurance and trust that we seek. This afternoon I beg leave to withdraw the amendment, but I think your Lordships will want to return to this on Report, and I rather hope that we do.

Amendment 13 withdrawn.

Trade Bill

Lord Bassam of Brighton Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The next speaker is the noble Lord, Lord Rooker. I will call him once more; if he does not appear, we will move on. No. I call the noble Lord, Lord Bassam of Brighton.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, Labour supports the amendments in this group. As we heard, Amendment 28 seeks to reinsert a government amendment made to the previous Trade Bill, which would reduce from five years to three years the period during which the EU FTAs can be rolled over and in which previously rolled-over FTAs can be reamended. Amendment 29 would reinsert another government amendment from last year. If the Government decide to extend the period in which to make regulations under Clause 2, any such period should not be more than three years.

In commentary, I must say that I am surprised that these sunset provisions are not already included. As the noble Lord, Lord Purvis, explained, the Government themselves made the changes last time round. Only last year, they committed to reducing from five years to three years the length of the period in which the implementation power can be used. My argument is simple. Let us put these amendments back in the Bill, so that the Minister can demonstrate the same faith in the department and in the Government as previous Ministers did to complete these rollover agreements in a timely fashion.

What has changed? Why do we face the prospect of not having these rollover periods? What is the problem with having the sunset clause as it is? If it was right last time, surely it must be right this time. I am drawn to sharing the suspicion of the noble Lord, Lord Purvis, that the advent of a larger majority has made the Government think that they do not need these provisions, but that cannot be right either. When this was discussed the last time round, the Government said that the period would be renewable by agreement in both Houses of Parliament and that they were committed to engaging the devolved Administrations in that decision-making process in advance. I hope that those points still stand and I look forward to the Minister confirming that they do, as that seems a sensible way forward, which I am sure would find agreement on all sides of the House.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I will now address Amendments 28, 29, 30 and 32, in the names of the noble Lords, Lord Purvis of Tweed and Lord Bassam of Brighton, and the noble Baroness, Lady Kramer. The amendments would reduce the sunset period from five to three years and reduce the period by which it can be extended also from five to three years.

I am afraid that I have to say to the noble Lords, Lord Purvis and Lord Bassam, and to other noble Lords that, after careful consideration, we believe that the current sunset provisions in the Bill strike the right balance between allowing flexibility for negotiators, the ability to keep agreements operable and providing Parliament with appropriate constraints and scrutiny.

As I have said to noble Lords previously, the Government and I are very aware that at the time of the 2017-19 Trade Bill there was uncertainty and concern from Parliament as to the nature of the Government’s continuity programme. That is why the Government brought forward a number of amendments to the 2017-19 Bill. Noble Lords might be rather bored of hearing me repeat the fact that we have now signed 20 continuity agreements, so they will be pleased to know that, as the noble Lord, Lord Purvis, acknowledged, we have now signed 21. The United Kingdom and Ukraine have signed a political, free trade and strategic partnership agreement, which will help to further strengthen the partnership and serves as a foundation for a deeper strategic political and trading relationship between the UK and Ukraine. Trade between the UK and Ukraine was worth £1.5 billion in 2019 and we are committed to protecting and growing that trade. Signing this agreement will no doubt help us to do that.

We have now signed 21 continuity agreements and expect to make positive progress with remaining continuity agreements before the end of the transition period. Indeed, before this Bill completes its passage through your Lordships’ House, perhaps I will no longer have to say 21 but can come back with a higher number. I am pleased that these agreements have given Parliament more certainty as to the practical effects of the Government’s continuity programme.

Trade Bill

Lord Bassam of Brighton Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

The noble Baroness, Lady Neville-Rolfe, has withdrawn, so I call the noble Lord, Lord Bassam of Brighton.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I am very grateful to the noble Lord, Lord Purvis, for putting forward this amendment. We should also be grateful to other colleagues in the Chamber for asking key questions on this.

Bad trade deals produce clear winners and losers. Surely our task is to make sure that British businesses, including those in Northern Ireland, do not lose out in trade agreements and face unnecessary costs. British businesses have faced an incredibly tough year; the pandemic in particular has seriously impacted on UK trade. We have seen big falls in exports and imports in the three months following April 2020; the ONS found that trade exports fell by £33.1 billion in those three months, while imports fell by £29.9 billion. These were the largest three-monthly falls since comparable records began in 1997. Trade will be vital for businesses in the post-Covid recovery period. The Government should make sure that businesses do not face unnecessary costs arising from trade agreements.

I am glad that the Minister has said previously that the Government have committed to publish their negotiating objectives alongside an initial impact assessment. Can he confirm that a full impact assessment for each agreement will be published by the Government at the end of negotiations? Will this full impact assessment be reviewed by an independent body? Will the Government act on any findings that come as a by-product of the review?

There are clearly major problems for Northern Ireland. Does the Minister expect different costs for businesses exporting or importing goods and services to or from Northern Ireland to result from an EU-UK FTA and any rollover agreement for the Japan agreement? Other businesses in the rest of the UK will clearly be affected by this.

The amendment’s explanatory note also refers to additional costs to businesses operating within the UK’s internal market. Labour firmly believes that there is a need for a strong internal market so that businesses can trade freely across the UK’s four nations, which will be vital for our economy and shared prosperity. This will be discussed at length in the Internal Market Bill, which has some important implications for this Bill.

I hope that the Minister is following these debates closely. I hope that we can be reassured that the impact assessments will be transparently conducted and published, and that the Government will take note of their findings. Rather like the noble Baroness, Lady Noakes, I accept that there are costs both ways, but we need transparency. That transparency will enable our businesses to trade better, more freely and more competitively.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I welcome this amendment, put down by the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Suttie. As I told the House on the first day of Committee, and as we have touched on since, our continuity agreements seek to replicate the effects of EU agreements, and the 21 agreements that we have already signed show that we are not diverging or introducing new obligations. These agreements are continuity by name and continuity by nature. We therefore do not think it proportionate to produce impact assessments for trade deals that only maintain the status quo. I emphasise that point because I will come to other free trade agreements later.

This is not to say that we intend to deny Parliament information on these agreements. That is why the parliamentary reports that we have committed to publish alongside signed agreements contain detailed information about the volume of trade, the composition of imports and exports, and the wider economic impact of those agreements. As I have said, we will continue to lay these parliamentary reports voluntarily, with Explanatory Memoranda, alongside each new continuity agreement. The recently signed new agreement with Ukraine will of course be treated in that way.

New FTAs are not included in the scope of the Bill—neither are the EU arrangements—but we have committed to publishing in advance of opening negotiations initial economic scoping assessments for the new FTAs setting out what impact we believe the agreements might have. At the end of negotiations, we will produce an impact assessment for the final treaty, alongside an Explanatory Memorandum, prior to it being laid before Parliament for scrutiny under CRaG. The Government believe that this strikes the right balance.

The noble Baroness, Lady McIntosh, and the noble Lord, Lord Bassam, asked what kind of independent assessment will be made of these assessments. I am pleased to say that those assessments will be made by the Regulatory Policy Committee. I can also let the House know that the International Agreements Sub-Committee has already received these assessments in relation to the Japan FTA, which we signed a few weeks ago. These agreements and reports have been made available to the IAC on a confidential basis. We committed that the committee would have these agreements to review in good time before the CRaG process started; I am pleased to say that I had a good meeting with the IAC yesterday where we talked through these processes. I look forward to receiving its report in due course.

The noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Suttie, asked various questions relating to trade with the EU, particularly on customs arrangements and other contingency arrangements, including Northern Ireland matters that will arise at the end of the transition period. If I may, I will write to the noble Lord and the noble Baroness on these matters.

Given these reassurances, I ask the noble Lord to withdraw the amendment.

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Can the Minister clarify that it is indeed the Government’s intention to publish an annual trade report? If not, we may have to revisit this issue because it is important if we are to benefit, as the Government say we will, from our new trading environment. We must make sure that our businesses understand where and how significant the support is and, ultimately, how successful it is. We will not be able to stand alone when our competitors are moving apace. None of us want that because we all want the UK to prosper. I therefore hope that the Minister can give a positive response.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, we should be grateful to the noble Lord, Lord Lansley, for his amendment on trade promotion and strategies. It has stimulated an interesting debate. It is interesting to me because it provides me with the an opportunity of agreeing, for once, with the noble Baroness, Lady Noakes, about the need to make any trade promotion strategy government-wide, which goes without saying. It is also interesting because the noble Baroness, Lady McIntosh, mentioned the trade in pigs, our influence on China and how we might learn from its ability to market pigs’ trotters. It is some years since I consumed a pig’s trotter, but the thought of it fills me with great joy.

As has been mentioned throughout these debates, trade offers many benefits to UK businesses and will play a vital role in our post-Covid recovery. The Government must make sure that when they sign trade deals those benefits are shared across SMEs and large companies, as well as different regional groupings.

The amendment usefully refers to trade and export strategies, and I shall pick up a few points on the Government’s approach, especially their export strategy. Their stated ambition is to increase exports from 30% to 35% of GDP, with the Department for International Trade and UK Export Finance playing a key part in achieving that goal. Their previous ambition of increasing exports to £1 trillion by 2020 was not achieved. The National Audit Office has criticised the evidence underlying the strategy to increase exports to 35% of GDP and has said that it is not clear how stretching such an ambition is and that the timetable in which the target is expected to be achieved is not clear. The Public Accounts Committee has also said that it is unclear how the DIT’s work is well-linked to the Government’s export strategy ambition.

I have questions for the Minister. How and when will the Government achieve their 35% target? How are the overseas networks of DIT and UKEF staff working closely together to avoid missing export opportunities? The Federation of Small Businesses supports the 35% target but would welcome a grant scheme to support smaller businesses in particular—which is where we look for growth—looking to invest in new export processes. Are the Government giving that active consideration? It goes without saying that we need a strategy that actively promotes trade internationally in these new times, as the noble Lord, Lord Purvis, called them, as we find our way in the new world free of the EU. We must have that strategy in place, and this debate has highlighted that. Colleagues have brought into it the valuable experience, knowledge and insight that they gained from the all-party parliamentary group.

The Minister in the other place has said that he is developing a new export strategy. What is it to be and when will it be published? Can we have more debate on it and can the House expect to have regular updates and reports based on it?

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank my noble friend Lord Lansley for his amendment and his wise words in his introduction, honed by his years of experience.

As discussed when I met my noble friend to speak about this amendment, international trade agreements are not worth the paper they are written on if businesses and consumers are not educated and enabled to take advantage of their contents. I also fully agree with the noble Lord, Lord Purvis, about the need to operationalise those agreements. He and I were in complete agreement when we discussed this. I therefore agree that it is right that the Government should regularly review the benefits realised through the measures adopted for the international trade agreements they negotiate and the trade and export promotion strategies that they deploy. The strategies are vital, and I and all my ministerial colleagues in the department are well-seized of this.

The new all-party parliamentary group for trade and export promotion is an important development, and I am pleased to thoroughly endorse it. The energy of the noble Viscount, Lord Waverley, as co-chair, and its eminent sponsors will surely lead to its success.

Coming to the substance of the amendment, I hope that my noble friend will be pleased to hear that my department already has plans to publish such a report every two years. I hope that noble Lords will appreciate that the two-year period is appropriate because to do so more regularly would be overly burdensome for the department to pull together and would provide insufficient time to monitor the benefits realised. I assure noble Lords that the fact that the period is two years rather than one year in no way means that we do not agree on the importance of this topic.

The noble Lord, Lord Purvis, referred to the trade access programme. I am well aware from my contacts with SMEs how valuable many of them find it, and I will write to give him an update on its present stature.

I can assure the noble Lord, Lord Bassam, that we are fully seized of the points he makes and that my domestic and international colleagues work closely together on this. If at any time a conversation with me or my ministerial colleagues would help him, we would be happy to have one.

I hope that my noble friend Lord Lansley is reassured that the Government share the objective behind his amendment and that our proposal for a biannual report meets it in a proportionate way. Consequently, I ask that the amendment be withdrawn.

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[Lord Clement-Jones (LD) [V]]

My Lords, I wholeheartedly support the amendments tabled by the noble Lord, Lord Freyberg, to protect the healthcare data generated by the NHS as well as the safety and rights of the patients and citizens it exists to serve. I commend the way in which he introduced these amendments.

I have spoken on Second Reading and earlier in Committee about 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. By the same token, we must protect NHS data, especially given the many transactions between technology, telecoms and pharma companies concerned with NHS data. 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.

Amendments 71 and 72 would introduce clauses to the Bill to help guarantee patient safety where the data-driven medicines and medical technologies feature in a trade agreement. These are products and services that are bound to grow in number and novelty in the future, as a direct result of both the ongoing Covid-19 health emergency and the accelerated use of new technologies. Given the number of healthcare-related amendments that have been discussed in Committee, it is very clear that there are fundamental concerns about protection of the NHS and the safety, efficacy and cost of the healthcare services that it delivers. There is the potential for the Government to lose control at precisely the moment they propose to take it back. That is why I have put my name to, and support, Amendments 71 and 72.

In July, in the case of Schrems II, the European Court of Justice ruled that the privacy shield framework, which allows data transfers between the US, the UK and the EU, is invalid. That has been compounded by the recent ECJ judgment this month in the case brought by Privacy International. In future, data exporters will have to rely on standard contractual clauses. Relying on standard contractual clauses in healthcare is simply not acceptable. Relevant to Amendment 72 in particular, there is a common assumption that, apart from any data adequacy issues, data stored in the UK is subject only to UK law. This is not the case: in March 2018, the US Government enacted the Clarifying Lawful Overseas Use of Data Act, or CLOUD Act, which allows law enforcement agencies to demand access to data stored on servers hosted by US-based tech firms, such as Amazon Web Services, Microsoft and Google, regardless of the data’s physical location and without issuing a request for mutual legal assistance. In practice, data might be resident in the UK, but it is still subject to US law.

Data cannot, therefore, simply be considered UK sovereign, and it is notable that Amazon Web Services gave a full response to more than 1,259 subpoenas, search warrants and court orders between January and June of this year. AWS’s own terms and conditions, which form part of its agreements with the UK Government, do not commit to keeping data in the region selected by government officials if AWS is required by law to move the data elsewhere in the world. Key and sensitive aspects of government data, such as security and access rules, usage policies and permissions, may also be transferred to the US without Amazon having to seek advance permission. Similarly, AWS has the right to request customer data and provide support services from anywhere in the world.

The Cabinet Office Government Digital Service team, which sets the Government’s digital policy, gives no guidance on where government data should be hosted. It simply states that all data categorised as official —the vast majority of government data, but including law enforcement, biometric and patient data—is suitable for the public cloud, and instructs its own staff simply to use AWS, with no guidance given on where the data must be hosted. The costs of AWS varies widely, depending on the region selected—and the UK is one of the most expensive regions. Regions are physically selected by the technical staff, rather than the procurement team or the security team. I should say that Amazon Web Services has a contract with NHSX, so that should be set in this context.

The free flow of data across borders, in principle, is of crucial importance, as the noble Lord, Lord Freyberg, said. However, I hope this example illustrates that control of policy and regulation as to what that data is and who it is shared with should be retained by the UK Government. In fact, that is not even enough existing control over government data. In particular, retention of control over health data, health service planning, and research and innovation is vital if the UK is to maintain its position as a leading life sciences economy and innovator. That is what these amendments would ensure.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, the noble Lord, Lord Freyberg, is to be congratulated on bringing these amendments to the forefront of our discussions and considerations, not least because, as he said, at the heart of them is an attempt to guarantee patient safety. That should be a paramount reason for giving them the active consideration we are.

As the noble Lord, Lord Freyberg, said, there is a significant value to NHS data for a number of reasons: expanding research, testing technology, better under- standing of diseases and, of course, improving treatments. The fiscal value of NHS data cannot be underlined strongly enough—imagine its value if an insurance company were to find, for instance, access to data concerning test, track and trace.

The value of all this data is estimated to be around £10 billion a year, but, as I have mentioned before, the Bill in its current form could allow UK data to be moved to servers in America and stop the NHS being able to analyse its own health data without paying royalties. We should not pretend that tech companies and US drug giants do not recognise the value of all this data; the noble Lord, Lord Clement-Jones, has given ample voice to that argument.

Last year, it was revealed that pharma companies Merck, Bristol Myers Squibb and Eli Lilly paid the Government for licences costing up to £330,000 each, in return for anonymised health data. The Government, as has been said earlier, have also given Amazon access to healthcare information, and DeepMind was given access to the data of 1.6 million patients at the Royal Free Hospital.

As we have touched on before in a previous group, Labour supports protecting the NHS, including its data and publicly funded health and care services, from any form of control from outside the UK in trade deals. I have already pulled out the inconsistencies in the Government’s position. They say the NHS is not on the table in trade talks, but they will not put protections on the face of the Bill. What have they got to hide? They do not want to improve scrutiny mechanisms for trade agreements, and I think we should be concerned and highly worried about that.

I am not the only one to recognise this: more than 400 doctors and health professionals have urged the Government to amend the Bill and ensure that health services are not on the table in future trade deals. They have also argued that free trade deals risk compromising the safe storage and processing of NHS data. Let us commit in statute to protecting our beloved NHS in trade deals and making sure we can use valuable data to provide the most cutting-edge care for patients here in the UK.

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Given the late hour, I will not detain the Committee further, but these amendments raise very serious issues which I hope the Government will address.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I, too, am extremely sympathetic to these amendments and I congratulate the noble Baroness, Lady Hayman, for bringing them forward. As she argued, trade policy is about much more than trade, and it is truly shocking that the Bill is currently completely silent on climate change and its impact on the environment.

These amendments would encourage the Trade Remedies Authority to take account of our environmental obligations and give advice to the Secretary of State accordingly. As colleagues have previously said, the issues of climate change and environmental protection should be central to all our future considerations of trade policy, but this goes totally unmentioned in the Bill.

Labour believes that achieving our environmental goals, including net zero by 2050, requires action across all areas of policy. For that reason, trade must be included in that, so the TRA should play its part, too. My question is very simple: can the Minister confirm how the TRA will take account of UK environmental obligations, and will he please enable it to give that advice to the Secretary of State?

[Viscount Younger of Leckie (Con)]

My Lords, I have already spoken during the course of this Bill of the Government’s commitment to addressing the global environmental challenges that we face. I agree with the noble Lord, Lord Inglewood, that we should continue to debate these very important matters, not just for the UK but for our whole planet. On this at least, the noble Baronesses, Lady Hayman, Lady Jones and Lady Kramer, and I are in full agreement. However, we cannot accept the amendments, and it is incumbent on me to explain why.

Amendment 77, in the names of the noble Baronesses, Lady Hayman, Lady Jones of Moulsecoomb and Lady Kramer, would create a new role for the TRA when it provides advice and support to the Secretary of State, by requiring it to analyse impacts on the UK’s international environmental obligations. This amendment would fundamentally change the function of the TRA, which is being established to act as the UK’s investigatory body for trade remedies. Its core role will be to determine whether to recommend imposing trade remedy measures, in accordance with the rules set out in the relevant WTO agreements. Its role does not and should not extend to providing expertise on the UK’s international environmental obligations. To do so would detract from its function as the UK’s investigatory body for trade remedies. This expertise lies elsewhere across other departments and NDPBs, and requiring the TRA to duplicate it is both unnecessary and wasteful.

I turn to Amendment 83A, in the name of the noble Baroness, Lady Kramer, but spoken to by the noble Baroness, Lady Bowles of Berkhamsted. The amendment would add further criteria to when the Trade Remedies Authority or the Secretary of State consider whether anti-dumping or anti-subsidy remedies meet the economic interest test. Specifically, it would require the UK’s environmental obligations to be taken into account, as far as they are relevant. As with the previous amendment, the primary focus of trade remedy cases is, and has to be, protecting domestic industry from injury where appropriate. Trade remedies cases are not the vehicle for progressing the UK’s domestic or global ambitions on environmental issues, although environmental implications could be considered by the Secretary of State as part of her consideration of whether the measure is in the public interest. On this basis, I would ask that the amendments be withdrawn.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Noakes, has withdrawn, so I now call the noble Lord, Lord Bassam of Brighton.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, this is an important and valuable group of amendments and I congratulate my colleagues on bringing them forward and providing us with the opportunity to shine a bit more light on the Trade Remedies Authority. Labour believes that the creation of the TRA is necessary and welcome, in principle, once the UK has finally left the EU, so that we can protect domestic industries in our own right, investigate allegations of unfair practices by overseas competitors and seek their resolution via the WTO’s dispute settlement mechanisms.

However, we are also worried that the new Trade Remedies Authority lacks the stakeholder engagement, independence and parliamentary oversight and accountability to ensure that it will operate transparently and fairly when investigating and challenging practices that distort competition against UK producers, in breach of international trade rules. It is no secret that similar concerns were shared by your Lordships’ Constitution Committee, which said that

“it is not clear why … the functions and powers of the Trade Remedies Authority cannot be set out in more detail in this Bill”.

Schedule 4 states that the Secretary of State will appoint the chair of the Trade Remedies Authority, who will in turn appoint the chief executive and non-executive members. This process needs to ensure an independence of thought and action at the TRA. The Secretary of State should not appoint someone just in their own image, or necessarily with the same political leanings and economic opinion. We cannot have an unbalanced TRA that looks only at the approach favoured by the Government. The chair must balance interests in exactly the right way to do these things. Can the Minister therefore explain how independence at the TRA will be guaranteed? Can he explain what parliamentary involvement there will be to ensure that independence and that, whoever the chair is, they receive representations from across industry, employers, the unions, consumer groups, and the devolved nations? How will the TRA ensure a wide membership?

It is clear that we need a functioning TRA and a functioning trade remedies system, but that functioning will be undermined if there is no independence. This group of amendments enables us to focus on that important thing. I must say that I am very much drawn to the constitutional innovation of having confirmation hearings, so that at least questions can be asked by parliamentarians of the process and of those involved.

[Lord Grimstone of Boscobel (Con)]

My Lords, I recognise that the amendments tabled by noble Lords are intended to reinforce the independence and impartiality of the TRA, but I reassure them that this legislation has already been designed with this in mind. Both the Trade Bill and the Taxation (Cross-border Trade) Act have inbuilt protections of the TRA’s impartiality that already address many of these points. I reassure the Committee that we want the TRA to be independent and impartial, because it is the absolute requirement for a body of that sort.

Turning first to Amendment 78, in the name of the noble Baroness, Lady Kramer, it is of course important that the Secretary of State has regard to the operational independence and impartiality of the TRA. But imposing a positive duty may require the Secretary of State to take potentially excessive steps to protect the TRA’s independence, which might prevent her making any requests at all, thereby depriving her of the vital expertise that the TRA holds.

Trade Bill

Lord Bassam of Brighton Excerpts

Committee stage
Thursday 15th October 2020 Lords Chamber

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, we support these amendments and, broadly speaking, I could just repeat my comments on the previous group. So, if your Lordships could take them as read, I will not repeat them.

The powers of HMRC cannot ride roughshod over matters that are protected, in this instance by legal privilege. It seems to me that HMRC cannot be put above the law as a matter of principle. I will repeat that there are concerns because of the current provision in the Finance Bill seeking to obtain access to bank accounts that would normally have required a court’s approval. There is also doubt as to whether, within HMRC, there are the appropriate procedures for the proper handling of some of the information that it may demand. The issue is around the training and abilities of the people who may access or disclose things who, if previous form is to be followed, can be in relatively junior positions. I think that these are matters that HMRC is trying to address but, despite that, it seems improper to demand to acquire powers before any safeguards are in place. Also, legal privilege would appear to me to need special protection, and therefore provisions to achieve the aims of these amendments would be useful in the Bill.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I thank the noble Baroness, Lady McIntosh, for her speech and amendments. As she says, the provisions in the Bill are quite widely drawn, and the amendments stop information on documents relating to legal professional privilege being disclosed. I well understand the sensitivity of legal professional privilege. All information between a lawyer and their client must be handled with care and confidentiality, so we will be listening carefully to whether the Minister’s response alleviates the concerns of the noble Baroness, Lady McIntosh. I suspect that her amendments are probing but, as the noble Baroness, Lady Bowles, said, they touch on sensitive issues.

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[Lord Purvis of Tweed (LD)]

My Lords, at Questions today the Minister indicated that he was on a mission to educate me—I see the noble Baroness, Lady D’Souza in her place, and she was there—so I give the Minister an opportunity to educate me further with the questions that I have on this group. With regard to the previous question I asked, no doubt he will give me a full tutorial in response to the letter that I have written to him today in response to the very partial answer that he gave me at Questions.

I welcome the fact that good things happen, notwithstanding the concerns of the noble Baroness, Lady Neville-Rolfe, when devolved Administrations are consulted. Even in the middle of the Lords stages of a Bill, sensible things can come about, so I support the Minister’s amendments. Still, I have a couple of questions.

The first is not about what is in the amendment but about what he said in his introduction, which contained a little more clarity about the use of the information. Very soon we will be getting legislation not only on the frameworks, as the noble Baroness, Lady McIntosh of Pickering, mentioned, but on the thorny subject of the border operating model, including the legislation for the Kent access permit. I believe those regulations will include the power for our authorities to use automatic number plate recognition information, which enhances border port flows. I want to flag up to the Minister, although he may not wish to clarify this point today, that there will be concern if there is a lack of clarity about what information is fully anonymised, and will only ever be anonymised, and what information will be collected by the same authorities that will have access to, for example, automatic number plate recognition for those carrying out the businesses. We will have to be very clear, otherwise some of the concerns in the previous group and some of the concerns about disclosure will be heightened.

Clause 8(1) covers the power for HMRC to disclose information, but it also says, in brackets,

“or anyone acting on their behalf”.

It might be fully down to my ignorance but I am not entirely sure who that is likely to be and by what processes they are acting “on their behalf”. It has not been spelled out in the Explanatory Notes. Therefore, perhaps the Minister could clarify that because, as has been said, some of this information is sensitive, and not only to individual businesses. It is of strategic importance to the UK, and our competitors would probably quite like to have that knowledge too. If the Minister can explain who the “anyone acting on their behalf” might be, that would be useful.

While doing that, he might also be able to explain the Explanatory Notes. Paragraph 75 says:

“Clause 8(1) allows HMRC to share data with public or private bodies”.


Can he give examples of the kinds of private bodies that HMRC would share that data with? The clause expands the sharing of data quite considerably. Unlike the noble Baroness, Lady Neville-Rolfe, I have no problem with the devolved Administrations receiving this information under the terms of this legislation, but my antenna is directed to the words “or private bodies”.

Paragraph 75 of the Explanatory Notes goes on to expand the extent of data sharing. It says:

“This includes powers to share data, when needed, with international organisations that oversee the world trade system (for example the WTO)”.


That goes beyond what the Minister said, which concerned the purpose of this measure regarding strategic border flow information. If data is collected to help the WTO oversee the world trade system, there might have to be some parameters for that. I am not saying that I would be opposed to it, but at the moment I think that it would be useful to have more information, if possible.

Clause 9 concerns the disclosure of information by bodies other than HMRC. Subsection (3) lists those bodies as the Secretary of State, the Cabinet Office Minister—we know that the Cabinet Office Minister is responsible for the border operating model and preparations for the new border processes after January—a strategic highways company appointed under the Infrastructure Act and a port health authority. Therefore, we might have a slightly odd situation when it comes to the management of our ports in Scotland and Wales, in that the authorities responsible for those ports will have the power under this legislation to receive the information but they will not have the power to do anything about it for their own ports. Would it not make some sense if that were tidied up to ensure that the devolved authorities were able to use that data under the strictures of this legislation for the ports within those home nations? I say that because Clause 9(3)(c) refers to a strategic highways company appointed under the Infrastructure Act, but that Act extends to England and Wales only. Why does it not cover Scottish and Northern Irish export routes? In addition, Clause 9(3) lists, at paragraph (d),

“a port health authority constituted under section 2 of the Public Health (Control of Disease) Act 1984.”

However, that Act does not extend to Scotland or Northern Ireland, so, as I said, we might have a really odd situation here. Perhaps the Minister can clarify that point and see whether it can be tidied up.

Finally, a similar point arises in relation to Amendment 89. I can understand the case that is being made for higher penalties, but, unfortunately, something similar happens with regard to the offences—under Section 19(7) of the 2005 Act—referred to in the amendment of the noble Lord, Lord Stevenson. The amendment would not apply to Scotland or Northern Ireland, because the sentence for the offence of wrongful disclosure in Scotland is six months. Even the Government’s amendment would not apply to Scotland, and there is a separate offence within Scotland under that legislation. Assuming that the noble Lord, Lord Bassam, can clarify that point or indicate that he does not seek to extend an offence by eight times, I think that I would be satisfied.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I am always mindful of and sympathetic to a Minister who starts out with a speech by saying that the amendments he is moving are minor and technical. That is a wonderful disguise for all manner of things, and sometimes things can unravel when you say that.

That said, in general terms we do not have any issue with the intention behind the government amendments. They seem perfectly acceptable, as other noble Lords have said. However, we feel that the Government might have been better advised to offer these amendments in the negative, as we and many other noble Lords have not generally had the option of voting in Committee. It would probably have been more appropriate to move the amendments on Report, and I hope that the Minister will take note of that point.

Colleagues in this Committee have asked a series of quite important questions this afternoon, not least about how these things will work for the devolved Administrations and how they might apply. The question from the noble Baroness, Lady Neville-Rolfe, about which borders were involved was particularly appropriate, given some of the chaos that might well ensue if we do not get a proper deal in the current discussions.

I myself have a question for the Minister. How will the border impact centre report its information to us as parliamentarians? Will there be regular reports? Clearly, we do not want individual data but it seems to me that that will be very important in order to understand better the flows at borders. It would be useful to us if we could understand how that information and data will be reported back.

Noble Lords made reference to the amendment in the name of my noble friend Lord Stevenson, and I will speak to that now. In the Bill as currently drafted, if information were passed on without authorisation in such a way that it allowed an individual to be identified, Section 19 of the Commissioners for Revenue and Customs Act 2005, which deals with the offence of wrongful disclosure, would apply. This provides for a maximum penalty of two years’ imprisonment for such an offence. My noble friend’s amendment seeks to increase this penalty to five years’ imprisonment, as well as having the potential to fine a corporation by up to 4% of its annual turnover. The noble Baroness, Lady Neville-Rolfe, took exception to that, but we think that this provision needs to have some detail, power and meat to it. I cannot answer the question from the noble Lord, Lord Purvis, but I will take away his point and reflect on it after this afternoon’s debate. In general terms, we want to make sure that individuals are protected, and we do not believe that the current penalty acts as a great enough deterrent to stop parties acting carelessly and without authorisation. We believe that these proposed changes are proportionate and will provide that protection. We hope that the Minister will agree with that but, in any event, we shall be very interested in his comments on the penalty range as it currently is.

--- Later in debate ---

However, a year on, we have had no further information on how the Government wish to explore and innovate in human rights and trade. We cannot really wait much longer, because this will have to be put in place from January, so I would be grateful if the Minister can outline the intentions of the Government today.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, we owe the noble Lord, Lord Lansley, a debt of gratitude for bringing this amendment before us. We should also thank the noble Lord, Lord Chidgey, for his heart-rending speech on human rights abuses; it was very moving indeed.

The Taxation (Cross-border Trade) Act allows the Secretary of State to create a trade preference scheme for developing countries. Schedule 3 to that Act lists which “eligible” and “least developed” countries can be considered for inclusion as a beneficiary country under the preference scheme. The amendment in the name of the noble Lord, Lord Lansley, would confer a power to remove a country from the list if

“the government of that country has committed abuses of human rights of such a character and scale that, in the view of the Secretary of State, unilateral trade preferences should be withdrawn.”

It is hard to argue against that point, and the noble Lord has made it forcefully. These are obviously very serious issues. Whether we are talking about genocide or torture, the department should be aware of which trade policies are relevant and take account of them.

Trade Bill

Lord Bassam of Brighton Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I shall speak only to Amendment 27 in this group. I do not support it, mainly because I believe it is not necessary to tell a public body how to do its job. The TRA will be set up with a chief executive, staff and a board which will have a majority of non-executive directors and a chairman. It is being set up in a perfectly conventional way, which should allow it to ensure that it operates effectively.

A public body—or indeed any kind of body—does not need to be told to draw up a stakeholder engagement strategy. I also find it slightly bizarre that the amendment focuses on an engagement strategy. There will be far more important aspects of the TRA’s work—for example, on the kinds of information it seeks and the kind of analysis it carries out—but no strategy seems to be required for those. I also find no merit in the requirement to publish a strategy; I fail to see how that would add to the effectiveness of the TRA in providing advice.

Even if we need to specify that there must be an engagement strategy, it is quite unnecessary to specify a list of stakeholders with whom engagement must take place. I must say that the relevance of some in the list in this amendment is not entirely obvious. It seems to me that those proposing this amendment have forgotten that the TRA will focus on the kinds of things set out in Clause 6(3). It is a body focused on trade and traders, not on solving the problems of the world which are of interest to lobby groups.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, now that the Brexit transition period has ended, the creation of the Trade Remedies Authority is obviously both necessary and very welcome. It should allow the UK to protect domestic industries, investigate allegations of unfair practices by overseas competitors and seek their resolution via the WTO’s dispute settlement mechanism. We must have a Trade Remedies Authority that has a broad membership from sectors and regions across the UK, conducts meaningful stakeholder engagement and, of course, is independent from the Government.

I do not buy the argument from the noble Baroness, Lady Noakes, that it is not the business of Parliament to give some guidance or ideas as to who those meaningful stakeholders might be in ensuring that we get this right. Only then, I argue, will it be transparent and fair when investigating and challenging practices that distort competition against UK producers. But the Bill appears not to secure this, as reflected by my Amendment 47 and the other amendments in this group, which are in their own way entirely benign. It is worth reminding ourselves that the Lords Constitution Committee said that it was not clear why the functions and powers of the Trade Remedies Authority could not be set out in more detail in this Bill. We cannot have an unbalanced TRA that simply supports the priorities and approach of this Government, or indeed any Government. We need a functioning TRA and a functioning trade remedies system, but its functioning will be undermined if there is no independence.

Amendment 47 is simple. It allows the Secretary of State to ensure that members of the TRA should have the

“skills, knowledge or experience relating to producers, trade unions, consumers and devolved administrations in different parts of the United Kingdom.”

The amendment clearly seeks to guarantee an appropriate balance of views at the TRA, not in favour of any party or sector but for the benefit of all regions, nations and businesses. In particular, I argue that we need trade union representation in the TRA. The TUC has said that, without it, there will be

“no guarantee provided that the non-executive members will represent the interests of workers in manufacturing sectors who will be severely affected by the dumping of cheap goods such as steel, tyres and ceramics.”

I hope that the Minister can explain in some detail how this balance can be achieved without the necessity of this and other amendments being in the Bill.

[Viscount Younger of Leckie (Con)]

My Lords, there have been some succinct speeches in this debate and I shall keep my remarks relatively brief, but bearing in mind that there are six amendments to address.

Amendment 27 in the name of the noble Baroness, Lady Kramer, and the noble Lord, Lord Purvis, seeks to require the TRA to publish a strategy of its engagement with certain stakeholders within six months of its establishment. I am afraid that I agree with my noble friend Lady Noakes that we do not see merit in this, and I shall briefly explain why. The TRA’s processes are set out in legislation and limited by the scope of WTO agreements, including much of the basis of how it will engage with stakeholders in its investigations. UK producers will be able to bring complaints directly to the TRA through an innovative digital service which will underpin the process and make it easier for businesses to engage. I hope that I can provide further reassurance to the noble Baroness by outlining that we have engaged extensively with various stakeholders on establishing the TRA and encouraged them to build constructive relationships with the TRA itself, once established. I shall say more, particularly in relation to questions raised by my noble friend Lord Lansley, about progress on setting up the TRA in a moment.

I will move swiftly on to Amendments 28 and 29, in the name of my noble friend Lady McIntosh of Pickering, in relation to the TRA. These amendments would seek to narrow the limits of a request that the Secretary of State may make to the TRA for advice, support or assistance. We are committed to creating a world-class organisation staffed by a team of highly skilled international trade experts. The Secretary of State may require assistance from the TRA’s knowledgeable experts in certain circumstances to assist work carried out by government departments. There are some situations where the Secretary of State may need to request assistance from the TRA outside of trade remedy disputes arising under the WTO dispute settlement mechanism, including assistance in respect of provisions relating to trade remedies in regional trade agreements. In seeking assistance, however, the Secretary of State must have regard to the TRA’s independence, impartiality and expertise.