Trade Bill

Viscount Hailsham Excerpts

Committee: 1st sitting (Hansarad): House of Lords
Monday 21st January 2019 Lords Chamber

[Lord Newby]

He must have a lot of sympathy with them. The truth is that it was always unrealistic to expect these deals to be in place by 29 March because most of the EU’s free trade partners will want big UK concessions, particularly on issues such as food imports, requiring long and difficult negotiations that are likely to last several years. The Government sought to deny this but the truth is now there for everyone to see.

The other thing that might reasonably have happened is that the Government might have been clearer about their expected trade policy, how it might work and how they might bring it to Parliament. What would their red lines be? What processes would they follow to get future deals discussed and approved by this Parliament and the devolved assemblies? We still have no clue. In the circumstances, it is completely reasonable for this House to decline to proceed beyond Committee with the Bill. Indeed, it could be argued that we should not even proceed to Committee at all, but the Motion before us allows us to make some progress on the Bill while giving notice to the Government that they really must clarify their intentions if the Bill is to complete its passage through the House.

It will no doubt be argued that this amendment is unprecedented. Perhaps it is but, as we are seeing in the Commons, at a time when the Government have all but collapsed, it is inevitable that Parliament should assert its control over proceedings. That is what the amendment seeks to do, and it has the support of these Benches.

[Viscount Hailsham (Con)]

My Lords, I will briefly explain why I support the amendment to the Motion. Any outcome of the present Brexit stalemate other than crashing out without a deal will require more time. I do not believe that there is any national or parliamentary majority for crashing out without a deal. That means we either have to extend the 29 March deadline or revoke Article 50. At the moment, the first option is probably the most acceptable course, but I could live with either. Supporting the amendment to the Motion is a method of encouraging the Government to obtain more time. It also enables the Government to respond to the perfectly sensible points and demands for information made by the noble Baroness and the noble Lord.

I will make two final points, if I may. First, we have arrived at the time when the national interest must be put first, before any narrow party interest. That is the duty of all parliamentarians. In fact, it also happens to coincide with the pragmatic interest. Secondly, speaking directly to my Front Bench: if we crash out without a deal, this Government and their Ministers will not be forgiven lightly, either by the electorate or by the millions of those—myself included—who have historically voted Conservative.

Trade Bill

Viscount Hailsham Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 23rd January 2019 Lords Chamber

[Lord Hannay of Chiswick (CB)]

Before the noble Baroness goes on to the next amendment, could she answer a question that I asked in the preliminary debate? In the event of us leaving without a deal, what tariff rates will the United Kingdom apply on 30 March to countries with which the European Union has a preferential trading agreement? That agreement will have lapsed as a result of our departure, so we will not be able to keep those tariffs at zero, as they are at now. The MFN rules of the World Trade Organization will say that we are not in a free trade area, a customs union or a preferential agreement with those countries. Have you told these countries what tariffs we are going to apply, and if so, could you tell us?

[Viscount Hailsham (Con)]

“I will write to the noble Lord”?

[Baroness Fairhead]

My Lords, I will try to do a little better than that. I can write to clarify, but my understanding is that in the Taxation (Cross-border Trade) Act arrangements were put in place for the GSP, the GSP+ and the Everything But Arms preference terms. As I keep saying, obviously our aim is to have an agreement and then an implementation period. Should there be no deal—which is not the desired outcome—the UK will need to determine what its policy is. That is not something that I am at liberty to discuss, as it has not been disclosed. Clearly it is not a place we want to go, but we will have to take that into account if we reach that point.

Trade Bill

Viscount Hailsham Excerpts

Report: 1st sitting: House of Lords
Wednesday 6th March 2019 Lords Chamber

[Lord Purvis of Tweed]

My Lords, I am very grateful to the noble Lords, Lord Hannay and Lord Stevenson, for working collectively to condense a number of amendments in Committee into one composite amendment. It captures the two broad areas that were left outstanding in the Government’s Command Paper, the presentation of which I and others welcomed. The first area explores how the Government see the prerogative power of the Executive taken forward in a new, more complex world. The second concerns the devolved Administrations. Both areas are deficient in the Command Paper, as has been said already.

To illustrate the first point, I was born in 1974, when there were four regional trade agreements in the world. In 1992, there were 24 and in 2019 there are 471. That shows the massive growth in breadth and complexity of trade agreements that have been notified with the WTO. Nine been notified to the WTO during the tortuous process of our consideration of this Bill, which shows how trade moves fast but also widely and with growing complexity. Therefore, reverting, in effect, back to a consideration of the prerogative power before our membership of the EU is not really sufficient. It is why the International Chamber of Commerce, in a meeting I chaired, was so disappointed with the British Government seeking,

“to address the issue of 21st-century trade with 19th-century constitutional practices”.

This amendment seeks to address this fundamentally.

There is no direct replication of the relationship between the Commission, the Council and the European Parliament. The European Parliament has formally notified and engaged from the start of a trade negotiation 12 times. We are seeking to maintain this as the same form of platform of relationship, and if there is no direct read-across from what we have at the moment we will seek to use that as an opportunity to enhance the role of Parliament, rather than enhance the role of the Executive. That is why the first element seeks a role for Parliament in supporting the mandate or the negotiating objectives. The Government may say they have an issue with the word “mandate”: we are just taking the word of the Prime Minister when she sought and secured, “the mandate I need” when it came to negotiations with the European Union recently. When that passed the House of Commons she said she was,

“armed with a fresh mandate”.

This is the Prime Minister’s language and if the Government are opposed to it, they need to explain why the Prime Minister’s language is wrong.

On the second area, we have changed the use of the prerogative power over recent years. Canada still deploys troops without parliamentary approval—we do not. We have moved to fixed-term Parliaments. We have changed, adopted and modernised the prerogative power and that is why it is appropriate that Parliament has a role in setting the negotiating objectives and mandate and also has a vote on the final ratification.

My final point concerns consultation with the devolved Administrations. This formal statutory underpinning of consultation was sorely lacking in the Command Paper. It is welcome that there will be a process through the concordat, that there will be a forum and that there will be ongoing discussions with Ministers, but just to give the current example of the Faroe Islands trade agreement, the draft text was not shared and the level of consultation with devolved Ministers was not appropriate. We seek to address those two areas in this amendment, with consultation with the devolved Administrations, an updating and a more appropriate role for Parliament. I hope that the Government will see this in the spirit in which it was tabled—that we wish to build on the Command Paper and improve it—and that they will accept it.

[Viscount Hailsham (Con)]

My Lords, I rise briefly simply to explain why I do not feel I can support the proposed new clause, although generally speaking I agree with the views that have been expressed in its support. I shall indicate what I could support with some changes to the new clause. I shall deal first with proposed new subsection (9), which makes the ratification of the agreement subject to approval by resolution of both Houses. This provision, in fact, goes much further, as the noble Lord will appreciate, than the procedure set out in the 2010 Act with regard to the approval of treaties, but I welcome the principle and I have no difficulty with it. However, I have a question which I hope the sponsors of the proposed new clause will address. I may have overlooked the answer—it may be staring me plain in the face. What happens if the Lords decline approval but the Commons approve the trade agreement?

There is no provision in the Bill to deal with that situation, and it would be profoundly unattractive if the House of Commons were to approve the trade agreement and the House of Lords were to refuse it, the result being that the trade agreement could not pass. This is actually dealt with specifically by Sections 20(7) and 20(8) of the CRaG Act of 2010, but there is no similar provision in the new clause. Because the procedures between the new clause and CRaG are fundamentally different, I do not think you could simply import the procedures in CRaG to the new clause. Perhaps I might seek guidance from the mover of the amendment on how to resolve a difference of opinion between the two Houses.

To move very quickly to proposed new subsections and (1) and (4), so far as the former is concerned it is very good idea that the negotiating mandate should be placed before an appropriate committee and discussed in both Houses of Parliament. It is a splendid idea, and I also agree with the supporting procedure set out in the proposed new clause. The one thing I do not agree with is that the negotiating mandate should be made subject to approval of the committee or the House. That is an undue restriction on the ability of the Executive to negotiate. I would say yes to consideration and discussion, but no to express approval.

The same point relates to proposed new subsection (4). I see no reason why the agreement of the appropriate committee should be obtained before the matter is put to a vote under subsection (9), because that subsection is already a parliamentary lock on the agreement. Why, therefore, should there be a pre-agreement by the appropriate committee before it goes to both Houses of Parliament? It seems to me that that restricts the ability of Parliament to do that which it thinks is right, and it is unnecessary because the parliamentary lock already exists.

To summarise, I cannot agree with this new clause, but I could agree with it if the principle of consideration and discussion were substituted for that of express approval in subsections (1) and (4).

[Lord Lansley]

I thoroughly agree with my noble friend Lord Hailsham in his argument. I will add one thing. The Commonwealth Parliamentary Association just a few weeks ago brought together people from across the Commonwealth to discuss a number of issues. The meeting I attended was a discussion on the ratification of treaties. It was clear that Australia and New Zealand—which of course have a long continuing history of negotiating their own trade agreements—still use the prerogative power as the basis on which the Executive enter into a trade agreement, but they do it in the context of continuing scrutiny, oversight and an approval process following implementation of legislation.

What I read in the White Paper last week went a long way towards replicating that in a very satisfactory way—that is, we would do those things in a similar way to Australia and New Zealand such as the outline approach being presented, reports on rounds and negotiations being reported back to Parliament and of course an approval process. It is perfectly reasonable to wait on the two Houses of Parliament to tell the Government what they think should be the committee processes by which these are considered. Australia, for example, has a joint standing committee on treaties, which looks at the way treaties are ratified. I do not think it is the case that mandates are being taken all over the world; some of the countries that have the greatest constitutional consistency with us do not have a mandate. The noble Lord, Lord Hannay, was right about scrutiny and oversight, but he elided them with the necessity for Parliament to issue a mandate. Under our constitutional processes we should not be issuing a mandate, and the proposed new clause falls on that count.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I will keep the Minister in suspense about what I am going to do, but not for long. I am grateful to all noble Lords who have contributed to this debate, which has been high level, and interesting in that some of the issues which perhaps have been a bit confused have been allowed to emerge in it.

I make it absolutely clear at the start that I do not believe that the amendment in my name and those of the other noble Lords who have joined me is a perfect solution to the problem we are facing. The noble Viscount, Lord Hailsham, is quite right to pick up a number of inconsistencies in that—noble Lords do not have to laugh that loud. But in my mitigation, may I say that it is not the job of the Opposition to draft for the Government the sort of detailed legislative framework which is being talked about here? This needs a lot of time, effort and attention which we are not able to bring to it.

[Viscount Hailsham]

Does the noble Lord then accept that it is necessary to have some provision to deal with the situation that would arise under proposed new subsections (1) and (4), where the two Houses disagree?

[Lord Stevenson of Balmacara]

Yes—but I do not have it. I challenge the Minister: if she is asserting that we are as close as she says we are, would she agree to have further discussions and bring forward an amendment we could both support at Third Reading? I will give her time to seek inspiration. I am not confident that it will come in any palatable form but I make this offer genuinely. It is so important and the principles so germane to what we are doing that we should try to go the extra mile if we can.

Having said that, I think the Government are hiding behind a completely fantasised world in which everything is rolled back, as someone said, to the 19th century with the royal prerogative secure in its place. Somehow, Parliament would be consulted; it would be able to scrutinise and look at the outline approach. The clue is in the language: why outline an approach except to mandate? Why scrutinise, when what we are talking about is post hoc discussion in Committee, reports that will gather dust in libraries but not have any effect, and no chance to influence at a parliamentary level what is being decided.

There are issues of principle at stake—about who has the right to make the decisions that will literally affect the people of this country in a very material way. This is because of the way in which trade has moved away from being simply about goods. It now involves services and a whole range of socioeconomic issues that need to be addressed in the round, at the highest level, by those elected by the people they serve. We have a role, though not as an elected House. I say to the noble Viscount, Lord Hailsham, that, in any discussion about priority, of course it has to be the Commons that takes the final decision.

These proposals need to be worked through properly. I will pause for a second to allow the Minister to respond on whether she is prepared to take this up at Third Reading. I will talk until I have to sit down, but I will give way to her if she wishes to make a comment.