Trade (Disclosure of Information) Bill

Paul Blomfield Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 16th December 2020 Commons Chamber

[Paul Blomfield (Sheffield Central) (Lab)]

I am pleased to respond to the Bill for the Opposition. The Bill has only emerged within the last couple of days, so I would like to thank the Minister for his efforts to work co-operatively with us on it and for the virtual meeting that he had with me and the shadow International Trade Secretary, my right hon. Friend the Member for Islington South and Finsbury (Emily Thornberry). I would also like to thank the Chancellor of the Duchy of Lancaster for his office’s liaison with regard to the legislation.

The Government are bringing forward this legislation at some haste, not out of choice, but out of necessity. They need these clauses on the statute book by the end of the transition period to prevent disruption and to best tackle any relevant issues. This, of course, was never meant to be a Bill, and it may not last on the statute book for more than a few weeks. These clauses belong in the Trade Bill, which is still in the other place, and it is simply because the Government have run out of time that they are shoving them through as a stand-alone Bill. This has certain echoes of the negotiations on our future relationship with the European Union, which are running a little too close to the wire too.

We welcome preparedness for the end of the transition period, and we support this effort to minimise disruption and allow data sharing between HMRC and other bodies, such as local councils and resilience forums. However, this is another case of the Government pulling together a last-minute attempt to paper over the cracks that they have created by their failure to conduct the negotiations within a suitable timescale or, indeed, to meet any one of the deadlines—I think there have been five—that the Prime Minister has set for their conclusion. The Minister’s letter to MPs on the Bill tells us:

“The backup vehicle for these clauses would have been the legislation to implement any deal, but without a clear outcome regarding trade negotiations with the EU, we are doing the responsible thing by putting forward standalone legislation to ensure clarity at the end of the year”.

No “clear outcome” is a mild way of describing the current chaos, and let us be clear: the responsibility for that lies with the Prime Minister.

The Trade Bill, of which clauses 8 to 10 more or less make up the Bill in front of us, was first brought to the House in 2017—more than three years ago. Since then, it has been reborn, it has been amended and it has been scrambled into some quick fixes. The Opposition would like the Trade Bill to make its way on to the statute book before it reaches another anniversary; we are looking forward to seeing it back, and I will come on to that point.

Essentially, the Trade Bill was written to provide for accession to the World Trade Organisation’s agreement on Government procurement, the rolling over of trade agreements with non-EU countries prior to 31 December, the creation of a UK Trade Remedies Authority and this data-sharing provision for Her Majesty’s Revenue and Customs. The Minister will recognise that the Government have achieved the first three on that list by various means, and the fourth with this Bill.

However, we are concerned that that might leave the Trade Bill itself in the long grass—as the Minister knows; we have talked about this informally—allowing the Government to avoid some of the commitments they have now made, as contained in the Trade Bill after the excellent work in the other place. Principally, those amendments enshrine protections for the national health service and social care in any trade deals, ensure that trade deals secured take into account the human rights record of our trading partners—something that is clearly of great concern to the House, as evidenced by the urgent question earlier today—and increase parliamentary oversight by providing improved scrutiny mechanisms.

Those amendments are welcomed by the Opposition and, I am sure, by the Government too. We look forward to debating them when the Trade Bill returns, so I invite the Minister to commit to concluding the passage of the Trade Bill by the end of January and allowing the sunset provisions in clause 4 of this Bill to take effect by then. That will replace this Bill and allow the Trade Bill’s clauses to supersede it.

The Trade Bill is on Report in the other place now, and I think that will continue in the first week of January, so we feel that is an appropriate target and a deadline that the Government might make this time. I ask the Minister to commit to that. That commitment would ensure that we do not lose the Bill and that we have proper scrutiny of the very many excellent amendments being tabled in the other place. I look forward to that commitment being made as we debate this Bill this afternoon.

--- Later in debate ---

[Paul Blomfield]

With the leave of the House, I shall briefly respond to the debate on behalf of the Opposition.

I thank hon. Members for their contributions. The hon. Member for North East Bedfordshire (Richard Fuller) disappointed me: I was so looking forward to him utilising the six hours. However, he made important points about scrutiny, additional data disclosures, anonymity of data, cross-sharing within HMRC, and food and agricultural standards, to which I shall return.

The hon. Member for Dundee East (Stewart Hosie), speaking on behalf of the SNP, was right to highlight the time wasted, and the trust and confidence in this country consequently eroded, by the consideration of aspects of the United Kingdom Internal Market Bill. The hon. Member for Edinburgh West (Christine Jardine) made a good point when she asked how businesses can be prepared for our departure from the transition when the Government themselves clearly are not.

The hon. Member for Glenrothes (Peter Grant) made an important point about our parliamentary proceedings during the pandemic, which the Opposition hope the Government will reconsider. He was more modest than the hon. Member for North East Bedfordshire: he was aiming for only three hours. Again, however, he disappointed us by not taking them. However, he made the important point that the Government are not in control. The repercussions of that are felt not simply in this House, but by businesses and on jobs across the country.

My hon. Friend and constituency neighbour the Member for Sheffield, Hallam (Olivia Blake) made some important points, to which I will return, about the maintenance of protections and scrutiny.

This Bill is about the management of trading relationships and allowing that to happen as smoothly as possible. On those future relationships, I hope the Minister will agree that the amendments made to the Trade Bill in the other place strengthen it and that any delay in its continued passage would not be appropriate. The Labour amendment to the Trade Bill on the first day of Report, which protects the NHS and social care from trade deals, is clearly essential. Now the US President-elect has been confirmed, many may feel there may be some reduction in concern about that, but it remains of paramount importance that our public services are protected.

The urgent question that we considered before we moved to the Bill was on the appalling treatment of the Uyghur people. It demonstrates the serious concern about human rights abuses across the world that is felt on both sides of the House. It is vital that our trade deals recognise that, and in the other place colleagues have amended the Bill to require trade negotiations to be preceded by an assessment of the other country’s human rights record. That undeniably sensible and responsible check and balance is backed up by another check, which means that, before any deal is ratified, Ministers will be obliged to show that it will comply with the UK’s human rights obligations. Finally, the Government would produce an annual report on compliance with rights laws by trading partners, and all these would be presented to the relevant committees in the Commons and the Lords, with the possibility that the courts could be used to challenge trade deals that breached rights standards.

Just last night in the other place, the Trade Bill was amended to improve the accountability of the Constitutional Reform and Governance Act 2010, providing for parliamentary scrutiny, which would much improve the process. We have to accept that CRaG is wholly inadequate, as it leaves whether there is a debate and vote entirely in the Government’s gift. Such a debate and vote in Parliament happen only after the agreement is signed. There is no scrutiny of negotiating objectives or texts during negotiations.

This is done far better in other countries. We talk often about being “world-leading” in circumstances where that transparently does not apply. In this context we must recognise that other countries conduct scrutiny of trade deals much better. For example, in the US scrutiny involves unions, businesses and civil society. The amendments made in the other place at least allow for debate through which those points can be raised and the voices of those affected can be heard. So this Bill must pass, but there are wider questions about scrutiny and trade policy across the Trade Bill that require attention. I look forward to the Minister’s assurance that that will happen early in the new year, and that we can look for the Bill being concluded by the end of January.

In the explanatory notes to the Trade (Disclosure of Information) Bill, the Government state:

“The Cabinet Office is establishing the Border Operations Centre to manage and mitigate potential disruption caused by the new border requirements at the crucial moment of transition. Without the data sharing clauses, Cabinet Office will be limited in the data it can receive from other departments, which will significantly hamper its ability to provide the single version of truth for flow of goods through the border, including a commodity level view of flow across the border (such as medicines and food supply).”

Does the Minister accept that, without the deal promised by the Prime Minister—the oven-ready deal for which the nation voted last December—which will deliver barrier-free and tariff-free trade, the potential disruption will be far worse? We are two weeks from the end of the transition period, but this Bill will not provide a silver bullet for managing trade smoothly after 31 December. It is the deal that the Prime Minister promised a year ago and signed up to in the political declaration at the start of this year that will deliver

“no tariffs, fees, charges or quantitative restrictions across all sectors”,

safeguard

“workers’ rights, consumer and environmental protection”,

keep people safe with a

“broad, comprehensive and balanced security partnership”

and indeed ensure the protection of the Good Friday agreement through the proper implementation of the Northern Ireland protocol. That is where the Government’s focus should be right now, and should have been to ensure that we would have, as the hon. Member for North East Bedfordshire said, the opportunity to debate in full the provisions of any agreement reached in good time, and to conclude that process to enable businesses to be ready.

Trade (Disclosure of Information) Bill

Paul Blomfield Excerpts

Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Wednesday 16th December 2020 Commons Chamber

[Paul Blomfield (Sheffield Central) (Lab)]

We recognise that at present there are limited circumstances in which Her Majesty’s Revenue and Customs can disclose information, such as when consent has been given by a taxpayer or when compelled to do so to comply with a court order. The Bill clearly continues that tight framing over the protection of information.

I have a few questions for the Minister, but I shall first comment on amendment 1. Although it is clear that amendment 1 aims to make watertight clause 2(8)—and I do understand the concerns behind that—Labour is satisfied that subsection (8) offers sufficient protection. However, I hope that the Minister can expand on that and explain what kind of instances subsection (7) might cover so that we can be fully assured on that point.

As we said earlier, this Bill is very much a lift of clauses 8 to 10 of the Trade Bill, although it diverges slightly by widening the protections in clause 2(8), ensuring that no disclosures made under this Act would

“contravene the data protection legislation, or…be prohibited by the investigatory powers legislation”,

rather than including specific references to the parts of the Investigatory Powers Act 2016 and the Data Protection Act 2018, as we saw previously. Will the Minister give us a reason for that change and let the House know what is now in scope that was not previously?

The Bill gives new powers to HMRC to share information with international bodies, local bodies, devolved Administrations and others for analysis and monitoring. Will the Minister elaborate on the purposes for which that might be done, more specifically? Perhaps he could also explain the way in which the border operations centre will use that data to support local authorities, local resilience forums and other key public services, such as hospitals and clinical commissioning groups, when transporting key medicines or vaccines during the pandemic.

A little more broadly, I wonder whether the Minister could give other details about the border operations centre and the Government’s preparations for the end of the transition period. For instance, after the awarding of the port infrastructure fund yesterday, what assessment has he made of the number of ports that consider their allocation of the fund adequate to cover the necessary infrastructure changes required by the border operating model? As that fund was so significantly over-subscribed, what discussions is the Minister having with the Cabinet Office to ensure that our borders are fully operational by 1 January?

There is another point on which many of my colleagues and I have pressed Ministers. I do not think that we have had the opportunity to press this Minister on it, though, so I will give him a chance to answer. Can he tell us how many customs agents of the 50,000 recommended by the Government have now been trained and recruited? Will he also give us an update on the IT systems required to process customs and support our borders after the transition? Data sharing under the powers of the Bill is clearly welcome, but we also need the systems that sit alongside it to enable us to minimise disruption.

The Bill is needed to allow public bodies to access information about their areas and to prevent disruption. It also contains useful protections regarding data sharing, but it is a drop in the ocean when it comes to preparedness for the end of the transition period, so I hope that the Minister can answer some of those additional questions and give not simply this House, but business, the reassurance that it needs.

[Stewart Hosie (Dundee East) (SNP)]

I wish to speak to amendment 1,

tabled in my name, and to some of the other clauses.

During the passage of the incomplete Trade Bill there were, as the Minister will have seared into his soul, a number of debates and amendments—I think amendments 33 and 34—relating to the requirement to collect data by Her Majesty’s Revenue and Customs, specifically with regard to the exclusion of protection of legal professional privilege, which in many other circumstances would have applied. The same issue to some extent arises, in terms of the disclosure of information, in clause 2(7) of the Bill. It states:

“A disclosure under this section does not breach— (a) any obligation of confidence owed by the person disclosing the information, or (b) any other restriction on the disclosure of information (however imposed).”

The explanatory notes make it very clear that

“Certain information held by specific public authorities are subject to constraints on disclosure. To enable sharing of this information, clause 2(7) provides a general disapplication of these restrictions.”

If I may, I will just remind the Minister what was said in previous debates on this matter. Legal professional privilege and confidentiality are essential to safeguard the rule of law and the administration of justice. They permit information to be communicated between a lawyer and client without the fear of it going to a third party without the clear permission of the client. In normal circumstances, that includes HMRC. Many UK statutes already give express protection of legal privilege and it is vigorously protected by the courts.

We are in a rather odd position where data can be collected and is required to be collected, and where legal professional privilege has been disregarded entirely. We are now in a position where clause 2(7) disregards legal privilege in terms of the disclosing or sharing of that information. The Minister may well pray in aid some of the limited protections that are offered in clause 2, but if I run through them I suspect we might conclude they are not quite as strong as the Minister might like to think they are. The explanatory notes state:

“Clause 2(8) confirms that nothing in this section authorises the disclosure of information which would contravene data protection legislation or which is prohibited under the Investigatory Powers Act 2016.”

So far, so good—that is helpful, but very, very narrow. Others may say that it is only specified public authorities who can disclose or share information. They are specified in clause 2(3) as: the Secretary of State, the Minister for the Cabinet Office, a strategic highways company, or a port health authority constituted in a particular way. However, clause 2(9) states:

“A Minister of the Crown may by regulations made by statutory instrument amend this section for the purpose of specifying a public authority in, or removing a public authority from, subsection (3).”

Therefore, any number of other bodies could be added to that list. The other protection one could point to would be to say, “Ah, but they can be added if they are dealing with functions relating to trade.” They include:

“the analysis of the flow of traffic, goods and services...the analysis of the impact, or likely impact, of measures or practices…the design, implementation and operation of such measures”,

and so on. Those three specifics, however, are prefaced by:

“Those functions include, among other things, functions relating to”.

That allows it to be completely open-ended. It is not a comprehensive or complete list. As anyone watching will know, trade is no longer simply about traffic flows, the number of containers, quota and tariffs. It is about a whole range of things: all sorts of regulations, security, immigration and goodness knows what.

The provision is vague and ill-defined. It strikes me as being subject to scope creep by regulation. Fundamentally, it includes clause 2(7)(a) and (b), which is a get out of jail free card insofar as it disapplies the normal protections of information being disclosed, which would be subject in many other circumstances, including in statute, to legal professional privilege. That is actually a problem in the long run, but not necessarily in the short run as it allows us to get over an immediate hurdle where data must be shared. I appreciate that but, in the long run, how on earth can we say that we are a law-abiding country and that we want to adhere to the international legal system—the rule of law internationally—when we have here the disapplication of fundamental rights and protections for people not to have their information, normally subject to legal protection, shared, collected, distributed and disseminated. When the hon. Member for North East Bedfordshire (Richard Fuller) asked whether a private body could act as a public authority, the answer seemed to be that, yes, it could. That means that we could have a private body—a private company of indeterminate origin and a very small book value—doing something on behalf of the public, acting as a public authority, where the normal protection of data, which it may be provided with to fulfil its role, has the normal protections of legal privilege disapplied in statute.

Time is short. I know that this is urgent, I am not stupid, but this is actually serious. We cannot have a Government riding roughshod over legal protection, legal privilege, in this way over such a short period of time just because they have failed to get their ducks in a row and a proper functioning Trade Bill through where everything joins up.

It is not my intention, Dame Rosie, to press amendment 1 to a vote, but I do hope that the Minister takes seriously what I have just said and understands the possible consequences, particularly if it is private bodies acting as public authorities which have disapplied from them everything in terms of protection other than data protection and whether it would breach one other piece of named legislation. That is a serious and bad place to be.