Trade Bill

Lord Fox Excerpts

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

[Baroness Blower (Lab) [V]]

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

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

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

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

[Lord Fox (LD)]

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

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

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

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

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

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


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

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

[Baroness Bryan of Partick (Lab) [V]]

I am pleased to speak in support of Amendment 5. The Institute for Government puts UK government spending on procuring goods, works and services from external suppliers in 2018-19 at around £292 billion, which is more than a third of all public spending. This huge spending capacity should be used as leverage to ensure the highest standards of labour rights here in the UK and in countries with which we do business. The Trade Bill gives the Government the opportunity to advance this process.

This amendment and the later Amendment 18 ask the Government to permit public bodies to consider more than short-term concerns such as lowest price and to take into account the welfare of the workers who will carry out the contract, ensuring that acceptable standards of employment are applied by any successful bidder. The conditions suggested in the amendment are in no way onerous; they are the basic minimum standards as set out in the conventions of the International Labour Organization which have been ratified by the UK. As we are a founding member of the ILO and a country that has ratified the eight fundamental conventions, this would not be asking too much. The amendment simply expects that any trade deal should not undermine or restrict the ability of a public body to include in its tender that bidders should abide by these basic employment rights, covering: freedom of association; the right to organise and to free collective bargaining; following basic rules against forced labour and child labour; and outlawing discrimination.

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

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Fox.

[Lord Fox (LD)]

My Lords, I am sitting here looking at the small surface wipes, which profess to kill 99.9% of all viruses. In his speech, the Minister used broadly the same terms twice, and substantially the same terms once, when describing the follow-on GPA agreement. That is equivalent to the 0.1%, which is important these days. Could the Minister tell us what is not the same, because “broadly” and “substantially” is not “identical”? Therefore, there is a difference. In what areas are we seeing variation?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord, Lord Fox, for listening so intently to my speech to make those calculations. It is of great benefit to me that he did so. The changes are technical. I do not have them in front of me, although I know what they are. However, if I may, I shall write to the noble Lord and recount them for him.

Trade Bill

Lord Fox Excerpts

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

[Lord Patel (CB) [V]]

My Lords, I am pleased to support Amendment 51, in the name of the noble Baroness, Lady Thornton, to which I have added my name. I also look forward to the comments of my friends, the noble Baroness, Lady Noakes, and the noble Lord, Lord Lansley. Under normal Committee circumstances, we would have enjoyed debating some of these amendments.

In my view, this is the most important amendment for our highly valued NHS. Any trade deal that allows someone to own and manage or have access to any patient data, in no matter how small a way, is a threat to our NHS. The greatest perceived or real threat is from a trade deal with the USA that includes any part of the NHS. Our health service is free at the point of need; the USA healthcare system, on the other hand, is based on ability to pay. That in itself defines what the motives will be for any USA organisation wanting to get involved in any aspects of our NHS.

The Government repeatedly say that our NHS will not be on the table and that it is not for sale. What does that mean? The Government and NHS England already allow private contractors to bid for health services. Recent examples are Deloitte and Serco, for Covid-19-related services. Tennessee-based Acadia runs nearly a third of mental health beds, and the Priory Group has won many NHS contracts. Centene, a subsidiary of Centene Corporation, a tech and logistic provider, works with many GP practices. Palantir, an American data-mining company, is contracted to track, model, and analyse data from Covid-19. Optum, a subsidiary of the giant US health provider UnitedHealth, has contracts with many CCGs.

It is said that the citizens of the UK are not bothered who provides the service, as long as it is free when they need it, but they will if the taxes have to go up, services become poor and they have to pay for extras. While our health service is not perfect in every way, we get a bigger bang for our buck, despite being one of the least funded of OECD countries. Commercial companies may not wish or be allowed directly to run clinical services, but may be interested in managing the services. NHS England is moving to integrated care services, devising systems to be able to run such services. American companies such as UnitedHealth and other IPOs may well be interested in running regional services, with a contract that allows them to keep any surplus as profits. They could do that only by cutting services, particularly in secondary care.

The jewels in the crown of our NHS are information and data. A national health service that in the near future will be completely digitised is a goldmine of data, estimated to be worth well over £10 billion a year —data that is a goldmine for developing artificial intelligence, robotics and so on. No one in the world has such a database. Add to this the genomics data that UK has for both patients and population that is unique in the world makes the NHS highly attractive for developing and testing of personalised medicines. Digitised patient information is of immense value for doing clinical trials with stratified patients. There is no other country in the world that can so quickly identify patient groups required for such trials, as demonstrated recently in a clinical trial of a US-manufactured drug, conducted with speed and lower cost, mostly in the United Kingdom. It is this kind of information that makes our NHS is so valuable; any pharma, biotech, medical devices or diagnostic company would be mad not to want to get its hands on it.

The Government have said that they would welcome companies to come and help innovate. That is an invitation. The unicorn companies we wish the UK to develop will become a reality, but the UK will not be the owners. Of course, it could all be for good, except that it will be profit driven. Why is it that USA has the most expensive healthcare system in the world and delivers one of the worst outcomes in health? The big pharma companies say that we pay too little for our medicines, as already mentioned, through our regulatory system and medicines reimbursement regime. While I accept that NICE methodologies need a review, pharma would want much more than that in any UK-USA trade deal. I declare an interest here: in October 1997, I submitted a paper developed by the Academy of Medical Royal Colleges to establish a national institute of clinical effectiveness, which became the NICE of today, to the then Minister of Health in the Lords, the noble Baroness, Lady Jay of Paddington. So I may have some right to comment on the methodologies of NICE.

As the noble Baroness, Lady Sheehan, said, even when medicines patents run out, US pharma would seek data exclusivity to prevent cheaper drugs being produced. For all those reasons, why would any country negotiating a trade deal not wish to have any aspects of our NHS to be part of it, particularly the USA? To be able to get a share of delivery of service, manage or procure for any part of NHS is a profitable prize in itself; to be able to get hold of even a part of the health and patient data, with the possibility of owning it, is a prize measured in billions of dollars.

The only way to keep our NHS in our hands is to rule out any possibility of it being included in any trade documents maybe through mechanisms of positive listing or legislation in the Bill. I hope that the noble Baroness, Lady Thornton, will be committed to do this at Report. I look forward to the Minister’s comments.

[Lord Fox (LD)]

It is a great pleasure to follow the noble Lord, Lord Patel. I shall speak to Amendment 51, to which I am a signatory. Before I do that, I commend my noble friend Lady Sheehan, who spoke eloquently on her Amendment 75, one part of which was about the dangers of price gouging. She mentioned a number of different ploys, as did the noble Lord, Lord Patel. But there is another one, whereby companies gain control of the generic and the replacement for the generic, then seek to phase out the generic. That has been happening recently. Perhaps the Minister can explain how, in trading terms, we can combat that kind of behaviour.

The dangers of ISDS, which were set out by my noble friend Lady Sheehan and the noble Lord, Lord Bassam, are real and present. I look forward to the Minister’s response to their speeches on that issue.

Amendment 51 is designed to protect the NHS from potential dangers. If we are setting out on the great ship of global trade, it may be a lifebelt. The noble Baroness, Lady Thornton, is right that this Bill is the only game in town for Parliament to exert its views, and this issue is of real concern to many Members of both Houses. That is why we are right to be having this discussion today.

The noble Lord, Lord Patel, was brilliant and devastating as he described the threats to our health service—threats that it is already facing. He described how we are on the brink of serious dangers, which the amendment highlights and seeks to avoid. The stakes are high, as the noble Lord, Lord Purvis, set out when speaking to an earlier group of amendments. The NHS is a huge potential market for any national economy with which we might wish to conclude a trade deal, not least, of course, the United States of America. However, we should acknowledge that it is also clear that the UK is in a position to continue to benefit substantially from the right relationship with international medical service and pharmaceutical companies, and we have to get that balance right between closing and opening our borders.

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[Lord Sheikh (Con) [V]]

My Lords, I apologise because I did not unmute myself, but I think that Lady Sheikh has managed to unmute me.

I support Amendment 34 in the name of the noble Baroness, Lady Kidron. While the internet is a space for innovation, expression and communication, it can also be damaging. As our digital world develops and innovates, so do the risks of online harm. Children are increasingly exposed to inappropriate content, grooming, harassment, malicious behaviour, misinformation and breaches of privacy. Two-thirds of vulnerable children and young people, supported by Barnardo’s sexual exploitation service, were groomed online before meeting their abuser in person.

Social media companies have failed to prioritise children’s safety. Last year, the NSPCC found that more than 70% of reported grooming took place on the main social media networks—Facebook, Instagram, WhatsApp and Snapchat. The global platforms are not taking enough responsibility for content on their sites, or being held accountable. More needs to be done to verify user identities, monitor harmful content and handle reports of abuse effectively. Harmful content and activities have a damaging effect on children’s mental and physical well-being and can lead to exploitation, trafficking, substance abuse and radicalisation. Those impacts are rarely short term; they stay with the children for the rest of their lives.

The UK is committed to being the safest place in the world to be online, and we must do more. We need better safeguards, and I urge the Government to prioritise the online harms Bill, which will be world leading in safety requirements and holding the industry accountable. As we leave the European Union and continue to develop our place in the digital world, we must ensure that our standards and goals are not jeopardised. We recently signed a trade deal with Japan; this historic agreement will advance digital standards through data provisions that maintain and improve digital safety. This year, Japan was ranked first in the child online safety index for low cyber risks. Those risks refer to bullying, misuse of technology, the detrimental effect of gaming and social media, and exposure to violent and sexual content.

In the UK-Japan trade deal, the rights and protection of children online have not been undermined, as Japan shares a similar ambition to ours for legislative standards. But what will happen when we look to sign with other countries that do not have the same level of protection? Unlike Japan, the United States came 22nd out of 30 countries in the child online safety index for cyber risks.

Although this is only one aspect of the index, it shows that children are particularly at risk online in the United States. We cannot expose our children to the same abuse. The new trade agreement between the US, Mexico and Canada has created a legal shield for tech companies, whereby the service providers are not held liable for content on their platforms or the harm it may cause to users. This fails to hold social media companies to account, and is not an effective safeguard for children.

Supporting the amendment would mean that our existing protections could not be traded away, and would ensure that we could fulfil our duty of care to children. If we do not support the amendment, we risk undermining our commitment to create a safer world online for the protection of children. Furthermore, if we do not do this, we could cause a situation in which social media giants are not transparent in how they deal with abuse online, and may be less accountable.

The pandemic has reinforced the importance of the digital world in our lives. When we return to normality, we must have better safeguards. We should not just maintain our existing safeguards; we should endeavour to strengthen them. The amendment would mean at least that our existing laws, and therefore the rights of our children, were protected. I hope that it will be accepted.

[Lord Fox (LD)]

My Lords, in responding to the last group of amendments, the Minster, the noble Lord, Lord Grimstone, expressed surprise at the broad nature of the debate. I would say to him, perhaps facetiously, “Welcome to the House of Lords”. I fear that this group may tempt his colleague, the noble Viscount, Lord Younger, to make a similar observation, but I ask that he does not. As the noble Baroness, Lady Thornton, said at the end of the previous debate, the nature of these debates highlights serious concerns that noble Lords have, and the Government should take them seriously, even when they are not necessarily on the face of the Bill.

This is a very good example of that. I shall not speak in detail about Amendment 34, because the noble Baroness, Lady Kidron, made a very powerful speech. I am also glad that Lady Sheikh managed to get the noble Lord, Lord Sheikh, online, because he made a very strident contribution on something that is extremely important.

Similarly, I am not going to talk much about intellectual property. On this issue I bend the knee to my noble friend Lord Clement-Jones—and, frankly, so should Her Majesty’s Government. I suggest that the Minister should give my noble friend’s words, and particularly his questions, special attention, because they are serious and important issues that face a lot of companies in this country.

The noble Baroness, Lady Neville-Rolfe, spoke strongly on data flow. At the risk of provoking the ire of my noble friend Lord Clement-Jones, I have to say that I agree with her. Her issue is absolutely fundamental—and I shall expand a bit on that.

I have previously quoted the “exuberant” Secretary of State, as the noble Baroness, Lady Neville-Rolfe, describes her. Here is another quote, from a speech she made to the WTO almost exactly a year ago:

“We believe it is high time to reform digital trade rules so that they are fit for the 21st century, reducing restrictions to market access to support e-commerce and ensure the free flow of data across borders.”


Yet despite this enthusiasm or exuberance, I sense that there are problems when it comes to squaring the conflicting pressures that are mounting around the free flow of data across borders. Indeed, when the Minister kindly invited myself and others to a facilitated discussion on the progress of the US-UK trade deal, I was surprised and shocked by the insouciant response to my question on data adequacy and the issue of reconciling US and EU data rules. It was a very short answer, and to us, it did not show a full understanding of the challenge.

However, it is not just about GDPR. I will talk in a little detail about Schrems II, which my noble friend Lord Clement-Jones raised, because it is an important cloud hanging over what we seek to achieve. To remind your Lordships, in that ruling the European Court of Justice, the highest court of the EU, found on the adequacy of the protection provided by the EU-US data protection shield. To explain, it wrote in its press release that

“the requirements of US national security, public interest and law enforcement have primacy, thus condoning interference with the fundamental rights of persons whose data are transferred to that third country.”

It added that

“mechanisms in the EU-US Privacy Shield ostensibly intended to mitigate this interference are not up the required legal standard of ‘essential equivalence’ with EU law.”

Broadly, the US’s prioritization of digital surveillance in the view of the court collides directly with European fundamental rights.

That is a sobering ruling, which spells danger for UK trade aspirations and sets some alarm bells ringing regarding the UK’s surveillance regime. Her Majesty’s Government need to reflect on this very seriously when talking up the potential for a UK-US trade deal that includes data, and they should contrast that stark ruling with the freebooting statement from the Secretary of State with which I opened. By the way, I assume that Her Majesty’s Government are probably having to reflect on this ruling in their efforts to tie down data adequacy with the EU when the transition period runs out. Perhaps the Minister can use this opportunity to update us on progress with these discussions with the EU.

This is not a trivial issue, and we need to demonstrate in this country that we take it seriously. As a starting point, accepting Amendments 15, 16 and 34 would be a very good idea.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I will be relatively brief because much of what I want to say has been covered by the other speakers, not that I could ever have competed with the tour d’horizon that was the speech by the noble Lord, Lord Clement-Jones, and the expertise also shown by the former Minister, the noble Baroness, Lady Neville-Rolfe. It was also a bit of a tour de force, since it touched on every issue there is to touch on in terms of intellectual property. Indeed, if the noble Lords were minded to follow that up with amendments to back up some of the points they were making, the glacial progress we are making so far on the Bill would turn into a complete and utter standstill. So much is going on here, and so many things need to be addressed, that I am almost tempted to go into cahoots with them to try to see whether we can pick them out. Perhaps I will resist that one.

Both Amendments 15 and 16, taken together or separately, are helpful in the sense that, as others have said, they pick up some of the rather considerable concerns that we are all hearing from the IP sector about the future, about what is going to happen to personal data flows and, indeed, about what is going to happen to our IP industry, which is so vital to the UK economy and our cultural industries. They seem to be very sensible information-gathering amendments that do not impose any great burden on the Government, and they would help to inform the situation as we reach the turning points at the end of this year. I hope that they commend themselves at least in outline to the Minister.

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[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, I have had two requests to speak after the Minister from the noble Lords, Lord Fox and Lord Stevenson. I now call the noble Lord, Lord Fox.

[Lord Fox (LD)]

I thank the Minister for his response on Schrems II, which was very helpful. I would like just one further detail. Can he confirm that the advice, when it comes, could concern where databases are domiciled? If so, the advice needs to be made available earlier rather than later so that companies are able to comply. Therefore, can he give some indication of the timetable for when business might get some guidelines so that they can work out their new data management policy?

[Viscount Younger of Leckie (Con)]

Absolutely. That is a very fair question from the noble Lord. As he will expect, I do not have a timeline, so the best thing for me to do is to look at his question and write to him, giving whatever information we have from the department, together with any extra information that might be helpful to him.

Trade Bill

Lord Fox Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

Moved by

[Lord Fox]

46: After Clause 2, insert the following new Clause—
“Trade agreement with the EU: mobility framework
For the purposes of facilitating the continuation of trade with the European Union, the Secretary of State must take all necessary steps to secure a mobility framework with the European Union that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study for the purpose of the provision of trade in goods or services.”Member’s explanatory statement
The new Clause places an obligation on the Secretary of State to take all necessary steps to secure a mobility framework with the European Union.

[Lord Fox (LD)]

My Lords, Amendment 46 is in my name and those of my noble friend Lord Purvis of Tweed, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Bull. This amendment seeks to ensure that the Secretary of State takes all necessary steps to secure a mobility framework with the European Union. It is strikingly similar to one that your Lordships voted to include in the last version of this Bill. I am a little disappointed with the Government, and a little sad that they did not see fit to incorporate that amendment into the body of the third version of the Trade Bill, because the House had spoken very clearly on its preferences.

I am surprised also because the Secretary of State has been voluble about the role of services in the UK’s trading future. She claims that we are the world’s second largest services exporter—I certainly do not dispute that—and Europe’s pre-eminent destination for tech investment. We rely on people to develop those services; we rely on people to take those services out and sell them around the world; and we rely on the reciprocal movement of people around the world in order for services and our services industry to thrive. This is true in a huge number of sectors, not least in areas such as the performing arts and culture, which I know will be addressed by other speakers. And yet, the message sent through the narrow criteria of the immigration Bill is really the opposite.

We live in difficult times for employment, and the statistics today from the ONS around unemployment are extremely worrying. However, I will focus on the central skills environment. Other data reported by the ONS—last Thursday, I think—finds that between 2017 and 2019 there were 32.3 million people employed in the UK workforce, of which 11% were non-British nationals, among which about two-thirds were from the EU and one-third were non-EU nationals. Within that, 12% of key workers in the health and social care sector were non-British nationals. I should remind your Lordships that this sector is desperately seeking to recruit more people; there are literally hundreds of thousands of vacancies.

As your Lordships know, the immigration Bill ushers in a new skills-based work migration system, which comes into force after the transition period. This points-based system will require applicants to reach 70 points to be able to work in the United Kingdom. Points will be awarded based on qualifications, salary on offer, ability to speak English and whether the relevant sector is suffering from staff shortages. The salary threshold has been lowered to £25,600. I would point out that this is still well above the sum earned by many non-EU key workers, particularly in and around the care sector. One thing the Covid crisis has demonstrated is that salary is not the best indicator of people’s value to our communities.

The Migration Advisory Committee is already seeking to widen the lens of migration into this country. Its latest report says:

“Senior care workers and nursing assistants are among the occupations that should be added to the”


shortage occupation list

“to relieve pressure when freedom of movements ends … Other occupations which should be added to the UK-wide list include butchers, bricklayers and welders … The MAC has also recommended additions to separate lists for all of the devolved nations … This includes extra fishmongers, bakers and horticultural workers for Northern Ireland, childminders and nursery nurses for Scotland and health professionals for Wales.”

This is a valiant effort by the MAC but, looking across the Floor to the government Benches, it is hard to believe that, when noble Lords signed up to become members of the Conservative Party, and when they handed over their membership fees, they did so in order to elect a Government to micromanage the number of fishmongers in Belfast. Is this really an approach that a Conservative Government should be even thinking of? Would not a mobility framework be better at this than trying to track and trim every sub-level of trade and profession in every region and to try to manage their supply.

I am sure that the Minister will say this Bill is only about continuity agreements. That is not strictly true, as we know, because the Government have added amendments that address the wider trade agenda. If we look at the continuity agreement with Switzerland, for example, we find that a new element has been inserted—not quite the continuity agreement. The Swiss citizens’ rights agreement is a mobility framework that provides Swiss nationals and their family members living in the UK at the end of the implementation period with the right to continue to stay in the UK. It seems that the Government are amenable to the concept of mobility frameworks in continuity agreements—at least when it comes to Swiss bankers and gold traders.

I will turn to other deals. What about the deal with Japan? I know that details are still being filtered out around this, but the EU-Japanese deal—which our deal replaces—has a mobility framework. According to the European Commission, the agreement includes the most advanced provisions on movement of people for business purposes that the EU has negotiated so far. It covers categories such as intercorporate transfers, business visitors, contractual service suppliers, and the EU and Japan have agreed to include spouses and children to accompany service suppliers or those who work for a service supplier. So we know that the European Union is amenable to negotiating such deals. Can the Minister confirm whether the UK-Japanese deal also includes a mobility framework?

I do not think that either Minister, in their heart, wants the sort of migration environment proposed by the Government. In fact, I think that they understand the stifling nature of this. But it is probably too much to expect the Minister to admit this. However, I ask him to please tell your Lordships whether the UK-Japanese trade deal contains a mobility framework such as the one in the EU deal that it agrees to replace. We know that the UK does mobility because the Swiss-UK deal has added mobility to its scope—and we know that the EU does mobility through its Japanese settlement. Why not put these two together? Why not introduce a bit of consistency? By accepting this amendment, the Minister would acknowledge that mobility frameworks are to our mutual advantage, and he would be opening Her Majesty’s Government to the possibility of an EU mobility framework. I beg to move Amendment 46.

[The Earl of Clancarty (CB)]

My Lords, in speaking in strong support of the amendment moved by the noble Lord, Lord Fox, I will concentrate on the work aspect of this amendment, in particular in services and the British industry side of any reciprocal agreement that might be made. I acknowledge also the importance of study.

One would not think that, as individual groups, lorry drivers and lawyers necessarily have a great deal in common. But they do. They are both part of our huge services industry—our largest sector, providing 80% of the UK’s GDP and, according to the ONS, £95.2 billion-worth of exports to the EU, from the UK, in 2018. Looking back at the debates early last year on the almost identical amendment in the previous incarnation of the Trade Bill, it is clear that little has really changed in terms of the arguments that need to be made, or indeed with the extent to which the Government have addressed, or rather not addressed, the concerns of the sector. What has changed are the circumstances of Brexit, so that, if anything, the need for a mobility framework as 2021 rapidly approaches has become even more urgent.

Services depend inherently on a mobility framework. As our closest customer geographically, Europe is hugely important as a market and always will be. Yes, we can try to develop our services trade elsewhere, but putting impediments on our trade with Europe will inevitably result in a significant net loss when that trade starts to fall off, as indeed it has already as a result of a future mobility framework not already being in place—and this effect was observable before Covid. It should not be a case of either European or global trade, although that is sometimes the impression given. If anything, there is an argument that causing such impediments with Europe will detrimentally affect such trade with the rest of the world, such are the connections between countries and blocs of countries globally.

The loss of free movement on 1 January 2021 will directly impact on the effectiveness of this sector and consequently on the livelihoods of its many and various services providers, including IT, engineering, aviation, translation, and creative services. Many of these workers are self-employed and resident in both the UK and the EU. A survey by British in Europe found that 58% of respondents felt that their livelihoods would be affected by their loss of mobility rights. This finding was backed up for creative services by the Arts Council survey quoted last week on Report of the immigration Bill by the noble Baroness, Lady Bull, which stated that the continuation of short-term mobility was a top priority—even more important than the loss of EU funding.

The UK-EU cross-border services working group, for whose briefing I am indebted, has identified four key areas of concern for services. The first is GDPR, including the need for an adequacy agreement. The second key area is recognition of professional qualifications. Thirdly, and at the top of the list, are mobility rights and associated concerns, including the right to render services, the right of establishment and the right to travel at a moment’s notice between the UK, EEA countries and Switzerland—including, crucially, movement between Schengen territories. Fourthly, and importantly, there is the confusion and anxiety caused by the lack of an adequately defined single framework, which is increasingly deterring European clients. British workers urgently need these matters resolved and need guidance from the Government, which they are currently not receiving.

It is curious that the professed desire of the Government is to develop our tech industries, but these concerns have not been addressed and the industry overall has not been consulted. It must be emphasised that, in normal circumstances, on-site presence is an integral aspect of the services sector. In an earlier debate, I quoted an IT worker saying, “We freelancers export ourselves.” Creative services, particularly the performing arts, necessitate a mobility framework, because touring above all is such an integral aspect of that work. Among the raft of concerns, industries such as the performing arts and media and events, share the concern about the need to move equipment across borders, again at a moment’s notice. In other industries, we should also not forget the servitisation component of manufacturing.

As Committee has made clear, trade is not just about trade; it is about the policies that define it and the effects it may have, such as on people’s health and the environment. It is also—and this is particularly true about services—about other things in a more integral way, such as cultural exchange and soft power. The ambassadorial aspect of these industries is something that we are in great danger of sacrificing. Such aspects of services, apart from the financial worth, are both essential and invaluable, and will depend on an effective and appropriate framework.

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[Viscount Younger of Leckie (Con)]

My Lords, I turn to Amendment 46, regarding the parameters of the UK’s future relationship with the EU, in the names of the noble Lords, Lord Purvis and Lord Fox, and the noble Earl, Lord Clancarty. I have been left in no doubt about the importance of people—or personnel, as we sometimes call them—to ensuring that UK businesses have the resources that they need. Of course, this is correct, and I can relate to it to some extent due to my business background in human resources.

I was particularly struck by the tour d’horizon of the noble Earl, Lord Clancarty, the noble Baroness, Lady Bull, and the noble Lord, Lord Stevenson, who spoke just now about the importance of the creative industries. The noble Baroness spoke about the performing arts, perhaps understandably, including music. Soft power has also been mentioned—as, in fact, were quite a lot of sectors, including the tech sector—by the noble Lord, Lord Fox. I will start with that.

There is a “however” to this, which is that the Government have made it very clear on many occasions that our priority is to ensure that we restore our economic and political independence on 1 January 2021. As my noble friend Lady Noakes said in no uncertain terms—and she is right—this was at the heart of the Conservative Party manifesto and the basis on which we were elected.

The approach to the future relationship with the EU has already been extensively discussed by this House and the other place, most notably during Parliament’s scrutiny of the European Union (Withdrawal Agreement) Act 2020. We want a relationship with the EU that is based on friendly co-operation between sovereign equals and centred on free trade. That is what Task Force Europe, working within the Prime Minister’s office, 10 Downing Street, is pursuing.

Businesses have told us that it is important for them to be able to send their employees to other countries to deliver services on a temporary basis, so we will, of course, be open to negotiating reciprocal arrangements with the EU to facilitate this, building on the provisions that are standard in trade agreements. A reciprocal agreement based on best precedent will mean that UK citizens will be able to undertake some business activities in the EU without a work permit on a short-term basis. The same would apply for EU citizens making business visits to the UK. The precise details, including the range of activities, documentation needed and time limit are for continuing negotiation.

I will pick up on a question raised by my noble friend Lady McIntosh on reciprocals. Our negotiations with EEA EFTA states on a trade agreement are ongoing, so I am afraid I am unable to comment on specific policy areas, and I know that she raised a number of questions for me. However, the Government are not seeking to agree mobility arrangements with the EU beyond those that are normally contained in the services part of a trade agreement. We will negotiate commitments on a temporary entry without prejudice to the introduction of our points-based migration regime. I will answer a question raised by the noble Lord, Lord Fox: the Japan FTA does include a mobility framework.

While we will pursue an agreement on temporary entry for business purposes, this amendment seeks to mandate the Government to reintroduce a comprehensive mobility framework that runs counter to the manifesto the Government were elected upon and a decision that Parliament took when it passed the European Union (Withdrawal) Act.

I will pick up on the subject of a different type of mobility. I listened with care to the speech of the noble Lord, Lord Berkeley, and I reassure him that I will liaise with my noble friend Lady Vere in the Department for Transport to respond to him. I very much took note of the points that he raised about transport in general and, particularly, in relation to Eurostar. With that, I ask the noble Lord, Lord Fox, to withdraw his amendment.

[Lord Fox (LD)]

I thank the Minister and all speakers in this short debate. As others have said, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Bull, set forward a compelling set of reasons why a mobility framework is good not just for the individuals concerned but for the overall well-being, financial and otherwise, of this country.

The noble Baroness, Lady Bull, brought up the evidence that was laid before the Economic Affairs Committee last week; I was privy to that and suggest that the Minister might find it a good use of an hour of his time to listen to that evidence, which is about the pressure that Covid is bringing to those people. However, it is quite clear that Covid, followed by a clamping down on their mobility and ability to move around Europe and ply their trade, is the double hit that they all fear.

The noble Lords, Lord Judd and Lord Berkeley, and my noble friend Lord Bradshaw all supported what was being said, and I particularly thank the noble Lord, Lord Berkeley, for harking back to the deft decision-making of Chris Grayling. The Government appear to have taken up a career in suggesting new careers for people, with Ministers, apps and adverts all suggesting that everybody retrains. Perhaps Chris Grayling could retrain as a fishmonger and be sent to Northern Ireland to alleviate the crisis that MAC seems to have identified there.

I am very grateful to the noble Baroness, Lady McIntosh, for bringing up mutual recognition of qualifications. I was going to speak to that issue and decided that there was too much already, so I am glad that she did. This is absolutely crucial not just to the service industry but to all sorts of industries: from teaching to veterinary services, everything requires this to work. I understand that discussions are under way, but they need to be successful: there needs to be positive resolution.

Therefore, I do not think there is a meeting of minds. As the noble Lord, Lord Stevenson, said, we can assess the Minister’s response, which was short and hardly sympathetic to the amendment, which is not a surprise. It is interesting to note that, when it comes to Japan, we are prepared to have these conversations and be very open, and, when the announcement is put out, they will probably be one of the wonderful things that is lauded about that deal. Yet, somehow, in the terms of the noble Baroness, Lady Noakes, it is a sin to even think that we might be having this sort of discussions with our recently former colleagues in the European Union.

The noble Baroness, Lady Noakes, said, “That has consequences.” As usual, she is right. I will be very happy when she can explain to people with relatives in care homes the consequences of having insufficient care, and when she can talk about there being too few key workers in sectors where we need them to help to hold our society together in times of stress. I will be very pleased when she is around explaining that those consequences are a result of decisions like this. However, with that said, I beg leave to withdraw this amendment.

Amendment 46 withdrawn.

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[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I shall speak first, briefly, to linked Amendments 70 and 95, in the names of the noble Baroness, Lady McIntosh, and the noble Lord, Lord Wigley. I note that a Member of your Lordships’ House, the noble Lord, Lord Agnew, today found himself getting some attention for a claim that traders were taking a “head-in-the-sand” approach to trade post Brexit. I do not think that I could do better in response than quote the chief operating officer of the Food and Drink Federation:

“If any traders have their head in the sand it’s because, after many frustrating months awaiting critical answers, they probably think it’s more likely they’ll find those answers in the sand than they will from the Government.”


That was coming from an organisation which is not, I think it would be fair to say, a natural critic of the Government. I hope that the comments of the noble Lord, Lord Agnew, do not accurately reflect the view of the Government, and in particular that they do not indicate that they do not understand the extremely difficult position of small businesses, with so much else to deal with at the moment. We do not want to risk seeing them battered further on an uneven playing field by larger firms that are more likely to have the resources to react—something to which the noble Baroness, Lady Neville-Rolfe, just alluded.

I want to speak mostly to Amendment 93, in the name of the noble Lord, Lord Lansley. I appreciate the chance to support an amendment in his name, since we have had some disagreement on other elements of this Bill. I think that this is the first time that the issue of free zones has come up in this Committee, and I want to express the Green group’s strong opposition to the whole concept, noting that there were seven free ports in the UK at various points between 1984 and 2012 and that they were seen to have failed. Going back to the 1980s is surely not the answer for today.

I also note that the European Greens have been strong in their opposition, highlighting the links of free ports and free enterprise zones to tax avoidance, as exposed in the Madeira papers. To quote the historian, Quinn Slobodian, what they do is

“splinter the world into jurisdictions engaged in a constant competition to attract multinational companies, locking nations into a global ‘place war’ to offer businesses the most enticing incentives and the lowest labour costs.”

However, today we are mostly focusing not on the principle but on what the noble Lord, Lord Lansley, has created in his amendment, which is at least the chance of some democratic oversight and, crucially, a commitment to some local consultation. I would like to see in this amendment both a stronger position on local consultation and national oversight, noting that the impact is not only in the immediate area but in other economically similar areas, which are likely to see a loss of business and jobs to new zones. However, I hope we can return to that on Report. I will be very interested to hear the Minister’s response and perhaps what plans the Government have, particularly on local consultation and oversight, if they wish to push ahead with this revival of an old, neoliberal failure.

[Lord Fox (LD)]

My Lords, when I saw this grouping, I hoped that these speeches would identify the golden thread that linked them together. There is not one, so I will speak to them separately. I will talk to Amendment 93, in the name of the noble Lord, Lord Lansley, before coming to the other two.

I, too, agree with the noble Lord’s conjecture that there should be some parliamentary process that brings these free zones into being. I am not a fan of them, and I do not think our party is either. We think that they tend to move activity around rather than create new or larger activity, but that is not the point that we are here to debate, which is how these things are brought about and approved. I do not know about your Lordships, but I have been involved in a hell of a lot of statutory instruments in the past while, and they seem to be on some very big issues and some very trivial issues. It seems that there is no allergy in your Lordships’ House to taking on statutory instruments and trying to make decisions. Therefore to add a few more—I guess there would be a few free zones—does not seem a hugely controversial issue.

On the point made by the noble Lord, Lord Lansley, about applications coming in that had not had any form of local consultation, I can give him one idea of where people might object. There will almost certainly be planning things that will happen subsequent to the creation of a free zone, unless it is already an industrial zone. If you look at the sprawl outside airports, you start to see distribution centres and warehousing and all sorts of planning things. If I was a local resident living on the edge of or just outside somewhere that wanted to be a free zone, I would start to worry about some of those kinds of issues. So traditional planning issues would come forward—some would call them nimby and others straightforward—which would create problems, and do so for local politicians if not national ones. I am therefore very supportive of Amendment 93.

On Amendments 70 and 95, the noble Baroness, Lady Noakes, said that it would not work, and the noble Baroness, Lady Neville-Rolfe, said that manufacturers and so on need to embrace change. They may be right in both those instances, but I should caution a little compassion for the individuals concerned who are trying to make a business work. They are trying to do so when they still do not know what the rules are and in the face of all sorts of other pressures, not least Covid but also, as the noble Baroness, Lady Neville-Rolfe, said, immense international pressure and price pressure on what they are trying to do. Therefore, while the noble Baronesses might be right, I ask them, and in particular the Minister, to approach this with some compassion. Change is easy enough for some people. My father milked cows. You do not suddenly go from producing milk to producing pork pies overnight. Those kinds of changes can and do happen, but they do not happen at the turn of the year, when, eventually, the rules emerge.

I have one final point. Perhaps all of us could spend some time reading the latest edition of the GB-EU border operating model. I think my colleague my noble friend Lord Purvis, has mentioned it before. It should be compulsory reading for everyone working on this Bill. It is 138 pages, and every page has a list of at least 10 to 20 things that have either been changed or inserted in the latest edition, which was published last week. These are the things these people who have to change or get on with it have to embrace. It is hugely difficult to understand; it is a massive issue. So, the helpful slogan

“The UK’s new start: let’s get going”


is somewhat missing the point.

There is a huge amount to be done between now and the turn of the year, and the Government and the people in this Chamber need to have some air of understanding the extent to which it is threatening people’s livelihoods and putting them under pressure. These amendments are just two ways of trying to alleviate that. Overall, there has to be a wider understanding of the role of government in getting businesses past this huge change which is happening.

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[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, I have received a request from the noble Lord, Lord Fox, to speak after the Minister.

[Lord Fox (LD)]

The Minister said in his repudiation of, or comments on, my points that businesses have no excuse for not knowing what they have to do. At the end of what I said, I asked for some empathy, and I do not think that that is a particularly empathetic response. I shall give two excuses that they might have. One is that dozens of those rules were published only last week and the other is that they might be quite busy trying to keep their businesses alive in the middle of a global pandemic.

[Viscount Younger of Leckie (Con)]

The noble Lord makes a very good point and I hope that he will not take this as being unempathetic; I am just making a point that focuses particularly on Brexit and the transition period. Putting aside the obvious huge problems that businesses are facing at the moment, there has been more than enough time—four years—for businesses to prepare. We have done our best to support them during this period.

Trade Bill

Lord Fox Excerpts

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

[Lord Patel (CB) [V]]

My Lords, I speak strongly in support of Amendment 11, in the name of the noble Baroness, Lady Thornton. The hour is late, and we spent a long time discussing the matter in Committee. The noble Baroness, Lady Thornton, and others have dealt with the subject in detail and eloquently. Hence, I will be brief, as the last speaker before the Front-Bench speakers.

No matter what the Government say about the NHS not being on the table for any trade negotiations with the USA, it is naive to think that that will be so. Members of the US Congress and big pharma have made it clear that they expect the NHS to be part of any negotiation of a United States trade deal. In fact, the chair of the Senate finance committee—a committee that will have a final say in any trade deal that will be made—said that it is clear that all goods and services are part of the negotiation and, furthermore, that the NHS would benefit from competition from US companies. US big pharma has always complained that the UK, with its regulatory and medicines pricing regime, does not pay full price for medicines. It has even suggested that, as a result, US patients end up paying a higher price.

The US data and tech firms see an opportunity in our NHS patients’ records to develop patient management platforms and an opportunity to conduct clinical trials on cohorts of stratified patient and much more. I can quote an example: the company Palantir that has been involved in data mining and in security and intelligence. It was given a contract for the price of £1, at the beginning of the pandemic in March, to develop a platform for Covid-19 data. The contract was to be re-examined three months later. It was extended briefly and now I gather that, without any public debate, it has been granted a contract for five more years. Why would a data mining company be interested in having data related to health and health management? The answer is quite obvious: data is gold. In the absence of any government policy in relation to security and governance of health and patient data, it is an open goal for tech companies.

As I mentioned in Committee, several US firms are already involved in managing services worth billions of pounds. The prize for running services and exploiting patient and service-based data will be worth tens of billions of pounds. In market-driven self-service, the losers will be the patients and taxpayers.

Recently, it was reported that there was a meeting, organised by the Office for Life Sciences, between NHS England and big pharma and big tech with the intention to digitise and use the data of tens of millions of patients. Such an exercise would cost billions of pounds, which might be funded by the tech firms, but there was discussion about who would hold the IP. The risk we run, not only concerning data but also about how the services are managed in the NHS, is that they will be given to overseas companies, particularly American companies, that will benefit and profit from it. The NHS will be the loser, and therefore I strongly support this amendment.

[Lord Fox (LD)]

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

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

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

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

[Viscount Younger of Leckie (Con)]

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

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

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

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

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

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

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

“medical algorithms, technology or devices”

with respect to their

“methodology for processing sensitive data”.

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

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

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

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

Trade Bill

Lord Fox Excerpts

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

Moved by

[Lord Fox]

13: After Clause 2, insert the following new Clause—
“Mobility framework with the European Union
For the purposes of facilitating the continuation of trade with the European Union, the Secretary of State must take all necessary steps to secure a mobility framework with the European Union that enables all UK and EU citizens to exercise the same reciprocal rights to work, for the purpose of the provision of trade in services.”Member’s explanatory statement
The new Clause places an obligation on the Secretary of State to take all necessary steps to secure a mobility framework with the European Union.

[Lord Fox (LD)]

My Lords, the amendment is in my name and I thank other Peers who have put their names to it. It would insert a new clause that places an obligation on the Secretary of State

“to take all necessary steps to secure a mobility framework with the European Union”.

For some time, there was an assumption that any free trade agreement with the EU would include a chapter on mobility and mutual recognition of qualifications. It is clear that even if there is an FTA, no such provision would emerge by 31 December. Therefore, the amendment is a way in which to address the need for the Government to think again and focus on this issue, whether it is through the FTA or in some other way.

At Second Reading, the Minister—the noble Lord, Lord Grimstone—said that his aim was to maximise economic benefit. As I said in Committee, it is surprising, given the Secretary of State’s acknowledgement of the importance of services to trade, that Her Majesty’s Government are so blind to what they are doing by cutting off or making much more difficult the essential movement of people. In truth, the need for mobility has already been recognised in other deals. Indeed, other trade deals have mobility frameworks such as those agreed with Japan, which was presumably put there by the Japanese to facilitate the support of their manufacturing industry and financial sector, and with Switzerland, to allow the free movement of certain financial industry functions. However, in this context, movement between the UK and the EU is much more important in terms of meeting the Minister’s aims of maximising the economy.

As the noble Viscount, the Minister, knows, the UK services industry accounted for over 40% of the UK’s exports to the EU in 2018. As well as the acknowledged financial and banking industries, those exports include legal, accounting, advertising, research and development, architectural and other professional and technical services. Then there are all the creative, musical and artistic areas that involve people who have been moving seamlessly through Europe, adding not just to the cultural richness of our relationship with Europe but to the financial performance of the UK. From January, these sorts of movements will either not be possible or be extremely difficult.

In her speech in Committee to a similar amendment, the noble Baroness, Lady Bull, set out clearly the five modes of services traded across borders. I recommend that the Minister rereads her speech if he can. One of the modes that she raised was fly-in, fly-out. Every month, according to industry, around 10,000 people move between UK and EU manufacturing, more than the Government’s estimate of 53,000 per year. As the Minister will appreciate, they include engineers, technicians and the like, who are providing the services that keep manufacturing going. In return, EU people come the other way.

Let me give an example. I am using the Germany-to-the-UK version and I declare my interest as a vice- president of the German-British Forum. Let us say a German company sells machinery to British industry—as many of them have, to a great extent. That could include the transport, power supply or car industries. In many cases, both the installation of and ongoing technical support for that machinery comes from technicians who come from Germany. They are not necessarily German, but they come from Germany, sometimes at very short notice. If something goes wrong, as of today, a technical team of people who are specialists in particular pieces of equipment, which are often wide-ranging, will fly in. The number of people sent and the individuals in question depend on their availability and the other contracts that the company has.

As it stands, the current immigration policy for tier 5 temporary workers does not appear to cater for this sort of situation, which requires a reliable approach as individuals generally cannot be named in advance and the length and frequency of the stint that they perform when they are in this country are unknown. This is a real issue that has not been borne in mind. I understand that we are talking about the Trade Bill but trade involves the free movement of people to make things happen and make things flow.

Cross-border work is further hampered by the absence of mutual recognition of qualifications. In Committee in September, during the debate on a similar amendment, the Minister—the noble Viscount, Lord Younger of Leckie—said that negotiations with the EU were opening on this matter. That seemed late then, 90 days before the end of the transition period. It would be helpful if the Minister could update us on how those negotiations are going, what sort of mutual recognition regime we can expect on 1 January and, if there is no agreement, what the contingency plan is, so that we can make sure that the valuable skills of the people from the European Union working in this country are recognised and the valuable livelihoods of British people are still alive and kicking.

We are about to plunge into high unemployment; the figures show that unemployment is a very serious developing issue. However, the people being cut off are the sort of people who can to help to grow the UK out of this unprecedented situation. This sort of immigration policy and the lack of a mobility framework sends a message to would-be entrepreneurs from across Europe—people who tended to flock to the United Kingdom because they saw it as a great place, where they were welcome and could work to the advantage of everybody in the country. It is not just about them; it is also about the movement of the people who are not necessarily well paid but form their teams.

This amendment proposes a new clause that places an obligation on the Secretary of State to take all necessary steps to secure a mobility framework with the European Union. Trade is increasingly about people and this Trade Bill ignores this. This amendment requires the UK to negotiate that mobility framework. To fail to do this is to invite the law firms, architectural practices and many other service industries to set up offices that were in this country in the rest of Europe. To fail to do this is surrendering jobs and the considerable tax take they bring to other countries. It is cutting off cultural interchange and opting to make manufacturing in this country harder and less attractive. In short, the process we are entering is disrupting the human supply chain which keeps this country running and growing. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, I am grateful to the noble Lord, Lord Fox, to be able to support this amendment. We do not yet know whether we will get a deal with the EU or what exactly the deal will look like if we do. What we can say is that a no-deal on services will be a no-deal for the country, irrespective of whether we get a deal. The Government and the media have consistently underestimated the importance of service industries, both to this country and as part of our trade with Europe. Service industries are 80% of our GDP, a statistic we have repeated many times in this House. Our services trade with Europe makes up 51% of our services exports. As it stands, Europe is a hugely important market for services—the most important. Due to the significance of geography to service industries, it is one that is frankly irreplaceable.

Services have not been ignored in all quarters. In an interview with the Observer on 1 November before stepping down as director-general of the CBI, Carolyn Fairbairn said that her “really big disappointment”—her exact words—was the lack of help for services in the potential deal. The recent report by the EU Services Sub-Committee, The Future UK-EU Relationship on Professional and Business Services, raises similar concerns —not least those shown by the creative industries. The amendment moved by the noble Lord, Lord Fox, does not specify what the precise nature of the mobility framework should look like. The so-called mobility arrangement that Liz Truss has just signed with Switzerland agrees 90 days’ visa-free work a year. If this a sign of what is to come for EU countries, it will still not be enough on its own for much of the sector—which demands longer stays and ease of movement between European countries. This will be—

--- Later in debate ---

To summarise, the Government are already open to measures in negotiations that seek to provide reciprocal arrangements. This would allow businesses to send their employees to deliver services on a temporary basis. Therefore, I ask that this amendment be withdrawn.

[Lord Fox (LD)]

My Lords, I thank your Lordships for a good debate, and I thank the noble Earl, Lord Clancarty, for giving his speech twice. In the main, your Lordships spoke in favour of the amendment. Indeed, I even heard the noble Viscount, Lord Trenchard, say “The noble Lord, Lord Fox, is right”—words I had never expected to hear on this planet.

I am fascinated by the “take back control” defence because, first, it defines control as slamming the door. It does not define control as having the confidence to negotiate mutual relationships that will create opportunities for people. It is a very narrow definition of control—almost, frankly, paranoia. If indeed that was the Government’s definition, would they have negotiated the sort of deal with Switzerland that we just heard about? Would the Japanese deal have been negotiated?

It seems to me that the Government are not adhering to the definition of “take back control” of the noble Baroness, Lady Noakes; for that we should be grateful. However, it seems that the baggage that comes with negotiating a similar deal with the European Union is harder to overcome. I think I heard the Minister make some slightly positive noises about future opportunities to create mutually recognised structures to move people around. Frankly, the point of this amendment was to move us in that direction.

The noble Baroness, Lady Bennett, was keen for a vote. Unfortunately, that enthusiasm is not shared by everybody on this side of the House—at least, not on these Benches. For that reason, as well as our having spent quite a lot of time waiting for the House to be rebooted, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Trade Bill

Lord Fox Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 18th January 2021 Lords Chamber

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

My Lords, I welcome this group of amendments. I pay tribute to my noble friend and his colleagues, who have successfully engaged the legislative consent from the Scottish Parliament. I say that as someone of Scottish descent, and a non-practising member of the Faculty of Advocates.

I honestly do not believe that we would have got to this pass if it had not been for the intervention of a number of noble Lords, but especially the noble and learned Lord, Lord Hope of Craighead, among others, who intervened at all stages of what is now the United Kingdom Internal Market Act. I hope my noble friend will join me in paying tribute to the ongoing discussions on the framework agreements between the four nations that will be increasingly important as we develop trade, agriculture and environmental policy. But I am sure that there was more than a minor hiccup in engaging with the Scottish Parliament, so I congratulate him and I welcome these amendments in bringing us to that pass. Although he describes them as technical and not significant, I think they are a major step along the path to securing the passing of the Bill as it proceeds to the Commons.

[Lord Fox (LD) [V]]

Following two previous attempts spread over years, the Trade Bill seems finally to be making its way towards the statute book, perhaps by way of ping-pong. These amendments were described by the Minister as essentially technical housekeeping. I agree with him and certainly with the amendments, but perhaps it is appropriate that the final amendments we will discuss focus on inserting the Bill into the devolution settlement, as symbolised by the Scotland Act.

As the noble Baroness, Lady McIntosh, said, the Trade Bill is about setting Westminster’s role for the future, just as the internal market Bill did. I am pleased to hear about the legislative consent from Scotland and Wales, but in the past months these Benches have shown that we disagree with the way the Bill has avoided the effective involvement of Parliaments and Assemblies in the United Kingdom, taking a lot of power for the Executive.

But we have had those debates, and I will use this time to focus on some elements of the application the Trade Bill might enjoy. It is worth pointing out that the UK will be embarking on this so-called independent trade policy when the global trading environment is—how should I put it?—challenging. Even before the massive uncertainty of the global pandemic there were increasing trade tensions and a slowdown in the global economy.

Yet when I listen to the words coming from government mouths, I often hear echoes of British exceptionalism. Phrases such as “sovereign island nation”, when trotted out, seem to hark back to the 19th century. It is this backward view of the world that most disturbs me. I hear overtones that reflect the use of trade deals in a way that European nations did to compete for imperial domination in the 1800s.

At the heart of this is a total lack of understanding of the nature of modern global supply chains. Despite ministerial remonstrations when debating the Bill, it is impossible for me not to take the recent deals as examples of trade policy and how they are being applied. Of course, we could look at the rollover deals, but none of these has delivered anything material that we did not have before, so there is not much material there.

Then we come to the EU and UK deal. Clearly, there are substantial changes here that point to the direction we are travelling in. It is hard. It demonstrates this lack of understanding of how the flow of goods and services is facilitated by supply chains. Such flows are no longer maintained by access to the clipper ships of the East India Company, as this nostalgia seems to reflect, but nurtured by standards, people and data—three areas the EU trade agreement fails to enhance.

The role of shared standards and regulations is becoming only too apparent to our exporters struggling with serious border friction. Meanwhile, the lubricating effect to trade of mobility frameworks and mutual recognition of skills has yet to impinge on the wider public. However, I believe the tone of the Government’s responses to amendments addressing these issues will ultimately be seen as foolish. Finally, there has been no progress on data flows. That problem has just started.

Christmas Eve was not the end of this story; it was one step in a long process of negotiation. There will be protracted and difficult discussions about implementing the provisions covering trade in goods. We are starting to see this. Then there are two key areas outstanding. The first is financial services. Talks on an equivalence deal are taking place over the next three months, but this will exclude core banking services such as lending, payments and deposit-taking. If the EU and the UK fail to secure agreement, the UK will be left with the task of negotiating separately with 27 member states.

Then, as I said, there is data adequacy. The EU Parliament has severe reservations regarding sharing data with the UK. There is great suspicion over the potential onward transfer of data to the USA. Overcoming these fears will require much more than the Prime Minister looking into the eyes of MEPs and saying, “Trust me”.

However these go, the EU and the UK will remain in low-level dispute on all sorts of issues far into the future. Through all this, the UK will have to calculate the impact of whatever is agreed with the EU on its efforts to conclude bilateral trade agreements with other countries.

I question how the Government will use the much-vaunted freedom that they and the Prime Minister parade. As my noble friend Lord Purvis indicated, the UK Government are already looking for opportunities to diverge from the EU to demonstrate the symbolic value of Brexit and perhaps to pursue what they see as an advantage. Yet each change, each extra difference adds new friction to the EU-UK trade border. For every action there stands a possible reaction and a cost. We will see as time goes on whether the UK trade machine has the depth and sophistication to walk these lines. The weekend leaks on the working time directive and the Chancellor’s “big bang 2” speech seem to indicate otherwise.

The Bill sets a framework for trade. The Executive have taken upon themselves such powers that they will have no one else to blame for the results.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, these are minor and technical amendments. Agreeing to them should pose no difficulty to us. In introducing them the Minister spoke very warmly about his commitment to working with the devolved Administrations. It is very good to hear that two of the three have now passed their required legislative consent Motions. It is a pity that Northern Ireland simply was not able to do so, but it does speak to progress.

The noble Baroness, Lady McIntosh, made a good point about the need to keep an eye on the ball here, because these issues go far wider than just the trade debate. They certainly came up on the internal market Act, but they go further than that as well. We need to be sure that those who work and operate outside central London feel confident that the responsibilities available and open to them to achieve what they want for their communities will not be obstructed by any centralising force in government. This will come out of this Bill, but it also needs to be taken account of much more widely.

I look forward to the Minister’s response to the points that the noble Lord, Lord Curry, made on the TAC. This body is still shrouded in a certain amount of mystery. Maybe we can reach some further development on that with Amendment 1, which we discussed earlier, but we still need to spend some time talking about how we might take forward the issues that remain unresolved as the Bill goes from here to the Commons.

The noble Baroness, Lady Neville-Rolfe, was extremely agile in finding a way to bring back an issue she had raised previously. I respect her ability to do that. I also look forward to the Minister’s response. There seem to be two big issues here. There is the question about how the trade information will be gathered: will it be tick-box, voluntary or otherwise? If it is voluntary and tick-box, why is it necessary to use such an extraordinary amount of legislative time, and in particular the Henry VIII power in the Bill? The legislation seems to require only a very minor change to encourage people to register their interests in exports. If that is the case, why on earth does the Minister need to take powers that might change primary legislation? I look forward to his full response to that.

The noble Baroness also raised confidentiality, which I know she feels very strongly about. It can perhaps be dealt with without too much consideration, because it seems obvious, but it could bear further examination. Perhaps further discussions can take place, if not today, on what is happening with the information that has been gathered.

We have no objection on the narrow point of the government amendments before us. I am sure that they will pass.

Trade Bill

Lord Fox Excerpts

Consideration of Commons amendments & Lords Hansard
Tuesday 23rd March 2021 Lords Chamber

I hope that, with the progress of the Bill through Parliament, we will be able to hold the Government to account on their words and commitments. I wish the Bill speedy progress. As the Minister said, when it becomes an Act, it will be a work in progress, and we need to deliver on that.

[Lord Fox (LD)]

My Lords, before saying a few words, I apologise in advance. I have agreed with the noble Viscount, Lord Younger, and the other Whips that, if this debate extends beyond 3 pm—which looks exceedingly likely—I will withdraw and go to the Economic Affairs Committee, of which I am a member. I apologise for not being here, but I will of course read all the contributions in Hansard.

I wanted to speak because this topic started before we got to this Bill. The noble Lord, Lord Alton, others and I were debating an amendment not dissimilar to this one on a previous Bill, so I have been involved in this for many months—most of the year, I would say. I know that the noble Lord, Lord Alton, did not intend this to be a lap of honour, and he will no doubt be modest, but he deserves great praise for his strength. Many of your Lordships have stood alongside him—colleagues on these Benches as well—but his moral leadership has kept us focused on this issue. Going forward, that support will continue to be important.

As other Peers have noted, there have been changes in the political landscape, as this issue has been debated—it has been changed by things such as these debates. There is widespread recognition and condemnation, here and internationally, of what is happening in China —but, sadly, as the noble Lord, Lord Alton, notes, the situation in Xinjiang has deteriorated rather than getting better. It is clear that, while the Government may repeatedly have won votes on this amendment, they are losing the wider argument about this issue.

Yesterday, we saw what some could describe as an 11th hour decision by Dominic Raab to slap sanctions on key senior Chinese officials involved, as we have heard, in the mass internment of Uighur Muslims in Xinjiang. Of course, the timing may have helped to swing the vote against the amendment of the noble Lord, Lord Alton, but it is to be welcomed. We also heard the Foreign Secretary implicitly denounce Beijing itself. However—and we have heard the rationale for this from the noble Lord, Lord Adonis—he fell short of using the word “genocide”. That has been at the heart of this debate: acknowledging genocide when we see it and finding ways of characterising it. This has been, and continues to be, an important part of this debate.

As such, we should remember that the atmosphere for this comes soon after the integrated review, and many would say that the Government pulled their punches on China. The Foreign Secretary’s words, reiterated by others, at best describe a moral ambiguity around the trade and genocide issue—the same ambiguity highlighted in the Prime Minister’s words. We should be clear that that ambiguous situation is sitting around the Cabinet table today: the noble Lord, Lord Adonis, spoke about a balancing act and, yesterday, the former Chancellor, the noble Lord, Lord Hammond of Runnymede, was quoted as saying that there is too much naive “optimism”, in his words, in

“assuming that the Chinese will allow us, as it were, an à la carte approach to the menu of relationships”

on trade and human rights.

As such, it is easy to detect why Dominic Raab and colleagues would want to, in a sense, target individuals, rather than the state—because that balancing act is coming through. Of course, the Government are desperate to fill a big hole in our export account, but your Lordships’ House has repeatedly shown that we should not be this desperate. If what we see—as I think this shows—is that this ambiguous view is the actual view of this Government, then we have not seen the last of this debate, as the noble Lord, Lord Alton, said. Today is not a full stop in this debate; it is a semicolon.

[The Deputy Speaker (Baroness Henig) (Lab)]

I will now call the following eight speakers in this order: the noble Lords, Lord Cormack, Lord Lansley, Lord Shinkwin and Lord Blencathra, the noble Baroness, Lady McIntosh of Pickering, the noble Lords, Lord Balfe and Lord Polak, and the noble Baroness, Lady Kennedy of The Shaws. I first call the noble Lord, Lord Cormack.