Trade Bill

Lord Lansley Excerpts

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

[Lord Blunkett (Lab)]

My Lords, I shall address Amendments 9 and 10. I do not have anything as profound to say as my noble friend Lord Stevenson about Walter Bagehot, but I have something to say about the importance of our parliamentary democracy. There has been considerable recent debate, both publicly and in the House, about the role of Parliament, its input as well as its scrutiny, consideration and decision-making processes, and the importance that is attached to what the noble Lord, Lord Balfe, was saying on the previous group of amendments. In fact, I thought what the noble Lord said about taking back control was so obviously on point that I can make my observations extremely brief.

If Parliament is to work at all, it is not simply to give carte blanche to the Executive. My noble friend Lord Stevenson quite rightly made the point that, were amendments to be agreed and changes made that secured the framework on which trade agreements in future are ratified, Parliament would in part have done that job. If the amendments are not agreed, of course Parliament’s ultimate sanction is to consider and vote on the agreements themselves. Given the profound nature of our withdrawal from the European Union, the change in trade policy and the terms on which other subsequent trade agreements will be reached, it is absolutely critical that that is secured.

The reason that I intended to intervene this afternoon is purely on the basis that our Executive exist within Parliament. There is no presidency appointing an Executive, nor an assembly bringing forward its own separate policy requirements. Governments are embedded in Parliament, and as such Parliament has an obligation as well as a democratic duty to ensure that it does not give away those powers unless it has secured the requirements in the framework that avoid having to do it.

[Lord Lansley (Con)]

I thank noble Lords for my first opportunity to speak in Committee. Since Second Reading, an all-party parliamentary group has been established on the subject of trade and export promotion, of which I am vice-chair. I raise that in order to signal that I have that additional interest which has not yet been entered in the register.

On this group, I thoroughly agree with what I took to be the import of the remarks of the noble Lord, Lord Stevenson—that is, that he intends to have a substantive debate about the process for agreeing future trade agreements at a later stage. I agree with him about that; the group led by Amendment 35 seems to be more appropriate for that purpose, bringing, as it does, an amendment similar to that raised on Report in the other place by my former parliamentary neighbour, Jonathan Djanogly. So I will not go on at length about that.

At this stage we need to understand to what extent the Bill is purely for the purposes of securing continuity agreements following our exit from the European Union. Those who were with us on the debates on this subject on the Trade Bill in 2019 will recall that many amendments, just as they are this time, were put forward on the proposition that we are trying to establish what the future structure of trade agreements should look like, rather than seeking to establish what the continuity agreements after we leave the EU, carried forward, should look like.

Later amendments will look at how we might modify the constitutional reform and governance process. I think that is a better way of proceeding. I have my own amendment later for this purpose, and I think that CRaG is the basis for how we will look at future trade agreements. We can amend CRaG, and we will debate later how we might do that. I have my own proposal, but I will not go on about it now. I think it is important for us to distinguish between, on the one hand, the process of parliamentary approval of trade agreements and, on the other, separately from that, the implementation into domestic legislation of the obligations we enter into through international trade agreements and treaties.

A treaty entered into by the Government cannot itself change domestic law. Therefore, legislation is required to implement it, so will the Minister tell us two things in response to this early debate? First, will he repeat at this stage what our noble friend Lady Fairhead said on 21 January 2019 in the first day in Committee on the then Trade Bill? She said:

“We have already been clear that we will introduce bespoke legislation as necessary to implement those future free trade agreements. The Secretary of State for International Trade has already launched four consultations on prospective future trade agreements and announced that the Government will introduce bespoke primary legislation as necessary to implement these.”—[Official Report, 21/1/19; col. 613.]


I am hoping that my noble friend the Minister will say that, whether the number is four or more, the same process will apply in future. Of course, from my point of view that means that we do not need to specify what should be in future trade agreements and, by extension, change the law in this country, because, when the time comes, if the Government seek such a thing they would have to secure the consent of Parliament in primary legislation to do whatever they wish to do under those trade agreements. We do not need to have all those debates now.

The second thing is that I am hoping, as my noble friend the Minister knows, that he will reiterate the Government’s commitments, given early in the passage of the previous Trade Bill, to the processes for the future scrutiny and parliamentary approval of free trade agreements, published in the early part of 2019. If he can do that, it would help a great deal from the point of view of simplifying scrutiny of these and future amendments.

As for this group, Amendment 7 is a matter, strictly speaking, of semantics. To Ministers, if certain regulations are necessary to implement an agreement, then, in their view, they would be appropriate. If Ministers think something is appropriate, they always think it is also necessary. That is why, although the dictionary may not regard these two terms as meaning the same, in the mind of a Minister, they are the same.

Amendment 9 deals with the question of ratification. It says that the agreements that have to be implemented should not simply have been signed but should be ratified. It relates this, of course, to exit day for these agreements. I remind the Committee that we have passed exit day. After exit day it was the case, for example—I do not know how many examples there are, but it is a rather compelling one—that all member states of the European Union that were required to ratify the comprehensive agreement with Canada, CETA, had not so ratified. So, for example, the Dutch parliament ratified that agreement in July of this year: it was after exit day. The example I would draw, which I think is a compelling reason not to accept Amendment 9, is that it would have the consequence that the Canada-EU agreement would not satisfy the requirements of the legislation.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have received two requests to speak after the Minister, from the noble Lords, Lord Lansley and Lord Purvis of Tweed. I call the noble Lord, Lord Lansley, first.

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend the Minister for the assurances, although I note his powder is as yet dry in relation to some of the subjects we will discuss later.

If I may make a point about what I am looking for from my noble friend, it is very clear that if future trade agreements—not continuity agreements—give rise to a requirement for changes in domestic legislation that are of significance, that must be achieved by bespoke primary legislation. I am sure that is what he intended by what he said. That is why, I am afraid, the noble Lord, Lord Purvis of Tweed, said about Amendments 10 and 103 is wrong, because they would, in effect, create a super-affirmative procedure for the implementation into domestic legislation of future trade agreements. We do not want that. We want it to be done by primary legislation because then it is capable of being amended.

We have to keep in mind, as we go through this, that there is a clear difference: ratification of a trade agreement is not the same as changing our domestic law, as my noble friend just said. Therefore, the CRaG process does not change UK law; what it does is enable the Government to ratify, or not to ratify, a trade agreement or an agreement into which it has entered. That is the distinction that we have to continuously keep in mind: the CRaG process is not changing UK law; it is determining on what basis we have agreed with another country. If we then need to change our law, we must do it ourselves, and Parliament will have the ability to decide in what terms we do so.

[Lord Grimstone of Boscobel (Con)]

I thank my noble friend Lord Lansley for giving me the chance to clarify my comments. We have already said, and I am happy to say again, that we will bring forward primary legislation as necessary for future FTAs with new trade partners. As my noble friend quite appropriately spotted, we could not implement those free trade agreements without bringing forward primary legislation. The CRaG process does not do that—it ratifies the treaty but cannot, in itself, alter domestic legislation.

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[Baroness Falkner of Margravine (CB)]

My Lords, I intend, unusually, to part company with my noble friend Lord Alton of Liverpool and shall speak against Amendment 33. Before that, I shall spell out why I think that amendment has come about, although some of what I shall say has been covered by him.

The motivation for Amendment 33 lies in the Telecommunications Infrastructure (Leasehold Property) Bill, which we last debated on 29 June. We were given an assurance then that the Government would return at Third Reading with an amendment to give legislative teeth to human rights safeguards in the use of infrastructure. The Minister, the noble Baroness, Lady Barran, assured the House that, when the Bill returned for Third Reading, the Government would have drafted a suitable amendment. On that basis, we were willing not to test the opinion of the House. We are still waiting for that Bill to return, and the Government have spurned an opportunity to have a limited, reasonable amendment. As a consequence, we have this sweeping proposal before us, which I was surprised was found to be in scope of this Bill.

My first point relates to paragraph 44 of the Explanatory Notes, which has been touched on previously by the Minister, the noble Lord, Lord Grimstone. Clause 2(1) refers principally to EU continuity agreements, but I cannot see how Amendment 33 is in scope. The agreements concerned would already have been scrutinised by the European Parliament, which I do not consider normally to be lax in its duty to recall human rights implications.

I also note, as the noble Lord, Lord Alton, said, that attempts are under way for UK courts to determine whether genocide is taking place in other countries. While I know that trade with China is the object of concern of many of these amendments, they could be used much more widely. I shall turn to the unintended consequences of such amendments in a moment.

However, I oppose Amendment 33 for three principal reasons: the impossible burden of scrutiny on Parliament for such large categories of goods; the breadth of critical infrastructure included in an overly comprehensive list; and the exclusiveness of the definition of “democratic”, or “non-democratic”, thereby taking in more than half the countries of the world.

Amendment 33 is overly comprehensive, in that it seeks an interventionist role for Parliament in agreeing regulations that cover so many facets of infrastructure that it would render Parliament as an inspectorate of all commerce. If we are truly to be charged with each resolution laid before us concerned with the 11 broad areas of commercial transactions in the five years envisaged—perhaps five years more, if the proposal is rolled over—we may do little else.

Let me take the first category, which is “critical infrastructure”. Incidentally, critical infrastructure is not defined here, so I looked it up. Critical infrastructure,

“is a term used by governments to describe assets that are essential for the functioning of a society and economy”.

That is incredibly broad, and very little is not covered by it. In the UK, the Centre for the Protection of National Infrastructure is the relevant representative body. I therefore ask the proposers of these amendments to say, when they conclude, if they have consulted that body in drawing up their sweeping list of categories, given that little would not be caught by the amendment.

My more significant concern is to do with how the movers have defined what they see as non-democratic countries. The four pre-requisites are perfectly clear, and most of us would agree with them as essential to what we might perhaps define as western-style liberal democracies. Therein lies my concern. If Parliament has to approve trade measures with all those countries we consider non-democratic, we would be in danger of becoming an autarky. For example, if we apply the definition of the noble Lord to BRICS—Brazil, Russia, India, China and South Africa—they would all come into that category, bar South Africa. Take, for example, China, which is the cause of much concern around the House. So much of what China exports to us could be caught by the definition of critical infrastructure. I am sure no noble Lord is proposing that we suspend almost all trade with China—even the Trump Administration have balked at doing that.

While China is a well-known example, what of India? This Government are ambitious to do a great deal with India. They already have partnerships on critical infrastructure with Indian companies—take OneWeb as an example, which is critical infrastructure by any category. If new opportunities for trade were to arise, India would be on the so-called watch-list as a non-democratic country for its treatment of Kashmiri Muslims—in fact, for its treatment of large swathes of its Muslim minority; some 200 million people—and its treatment of women overall, or for the caste system and the treatment of Dalits, and thus would clearly come under categories (c) and (d) on the list.

Take Brazil under President Bolsonaro. It would definitely be caught by paragraphs (c) and (d), not least for its treatment of indigenous people in the Amazon, and not to speak of the rule of law. What of Saudi Arabia and the Gulf states, or even Israel? I do not want to labour the point, but by no step of the imagination could most countries in the Middle East be seen as democratic.

I also remind those concerned with such broad definitions of human rights to recall Article 25 of the Universal Declaration of Human Rights, which defines the right to economic well-being, broadly spelled out, and which might be denied to our citizens were we to agree such blanket measures against trade with other countries, or parliamentary scrutiny of trade with other countries. It is slightly disingenuous of noble Lords to claim that all they are asking for is parliamentary scrutiny. Once we open the can of worms as to what is democratic and not democratic, and once we start asking UK courts alone to rule on what is genocide or not, we are straying into an area where we are doing economic self-harm.

I know that human rights are increasingly accounted for in international trade agreements—as I said earlier, the EU is not impervious to that. However, Amendment 33 serves no useful purpose and we should rightly return to these measures in a very limited form in Amendment 68, which I will support when the time comes.

[Lord Lansley (Con)]

My Lords, I am pleased to follow the noble Baroness, Lady Falkner of Margravine, because I think I can follow up precisely the point she made. I think that the debate we have had is an important and interesting one, but the amendments before us do not have the effect that they are intended to by those who are proposing them.

The amendments are in scope of the Bill because they relate to the regulations being made under Clause 2(1), but the regulations made under Clause 2(1), by virtue of the rest of that clause, relate to continuity trade agreements and not to future trade agreements. With respect to the noble Lord, Lord Alton, everything he said about China is, to that extent, not relevant. It is relevant to future trade issues, but it is not relevant to the Bill as it stands.

Amendments 11, 18 and 33 are in scope because they relate to continuity agreements, but I am afraid that we have to assess their impact in relation to the existing agreements with the European Union which we are rolling over. That is the hard graft which the movers of the amendments need to do. If they want to do this thing and impact on those regulations, they have to look at those agreements.

My personal view, which was reflected earlier in the debate, is that the European Union has to a large extent done that work, as will have the European Parliament. We do not necessarily need to do it. However, the breadth of the issues—for example, in Amendment 33 —is such as to beg the question: is this really what the movers of the amendment are asking for? For example, the non-democratic provisions would imply that the agreement with Egypt would not be rolled over. That job has not been done and these amendments have not been exposed to that kind of scrutiny. I do not think that the movers of the amendments, or those who spoke in support of them, realise that they do not relate to future trade agreements but only to continuity agreements and so most of the arguments presented in their support have not been justified.

However, Amendment 45 is included in this group. Whether or not it is the right way of doing it, it raises a perfectly reasonable question that we should consider. When we come to exercise the scrutiny of trade agreements under the Constitutional Reform and Governance Act 2010, should we have a specific statutory requirement to assess the human rights and equalities impacts? There is a good argument for that. This may not be the way to do it at this stage, but we may need to return to that. Otherwise, I am afraid that, sympathetic as I am with all the arguments put for the other amendments, they do not do the job that is claimed for them.

[Baroness Northover (LD) [V]]

My Lords, in this group of amendments we are once more addressing standards. Amendment 11, in the names of the noble Lord, Lord Stevenson, and other noble Lords, rightly states that international trade agreements must not conflict with the provisions of international treaties ratified by the United Kingdom. One wonders quite how the Government will steer through any agreement with the EU if our Government are threatening at the same time to break international law in the treaty they have just agreed in relation to Northern Ireland. This amendment should not be needed but, as the noble Baroness, Lady Blower, said, it seems that it is.

The amendment also states that such agreements must be consistent with the SDGs, which aim to eliminate extreme poverty by 2030, leaving no one behind. They are wide ranging, covering women’s rights, health, education, the environment and much else. The UK has signed up to deliver them, not only internationally but domestically. In a later group, we will come back to amendments specifically on the environment, but that is central to the SDGs. Given that we have signed up to the SDGs, the Minister should simply be able to accept this provision.

The amendment also references international human rights law and international humanitarian law. The Minister will have noted the very powerful cross-party support for such an approach, and strong support in the Lords for the defence of human rights globally. I am sure that his Bill team will have correctly written “human rights” in the column that means that this issue will need to be addressed.

In Amendment 45, my noble friends Lord Purvis and Lady Kramer seek to make it a duty to bring human rights and equalities impact assessments of all trade deals before and after implementation. As my noble friend Lady Kramer pointed out, this is now routine within trade agreements. Clearly, this is a sine qua non and the Government should simply accept this amendment. I note the support of the noble Lord, Lord Lansley, for this.

Amendment 33, in the name of the noble Lord, Lord Alton, and others, protects against, for example, making a damaging trade deal with China. Parliamentary approval would be required if a trade deal were to be made with a signatory that was non-democratic and the trade deal affected critical infrastructure, as outlined here.