Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord McNicol of West Kilbride Excerpts

Committee stage
Thursday 7th December 2023 Grand Committee

[Lord Lansley (Con)]

My Lords, I will briefly join this debate because I am interested in the question of the mutual recognition of conformity assessment. Earlier this year, the Department for Business and Trade said that it would accept CE markings on a range of products for the foreseeable future—or something like that. That led to a certain amount of confusion, with the medical devices industry wondering whether it extended to medical devices. Of course, it did not extend to that industry; the Department of Health and Social Care has that responsibility. If my memory serves me right, the CE marking is certain to be recognised until 2027.

If my noble friend the Minister were to ask me for something we should aim to achieve in the trade and co-operation agreement review, it would certainly be to extend mutual recognition agreements between us and the European Union so that it recognises the UK conformity assessment and we continue to recognise the CE marking. That would afford enormous benefit to the industry.

This is not a mutual recognition agreement; this is giving the opportunity to conformity assessment bodies in CPTPP countries to apply to UK authorities so that, in effect, they provide themselves with UK conformity assessment on their products for trade, presumably within CPTPP countries and with the United Kingdom. Of course, if you are producing products for which you want a UK conformity assessment, being able to do your work according to the UK standards in your own country may well be a useful advantage. That is why it is in Article 8.6 of the CPTPP agreement.

Therefore, I am not sure that we need to worry about the question of “to what standards”. The answer is in the design of this provision. It is to the standard required for a UK conformity assessment. The bodies in any other country that are accredited for this purpose have to work to the same standards as if they were doing so in the UK, so it is pretty straightforward. However, happily, it affords the opportunity to say that there is a step beyond this, which is mutual recognition. For example, among the CPTPP countries one might anticipate, for example in our relationship with Japan at some point, a move on to mutual recognition of conformity assessment, since in many respects the Government naturally are thinking, “That is the territory that we need to go on”. As we develop trade relations and as we develop free trade agreements, eliminating technical barriers to trade should be one of our principal objectives—and this is one important aspect of that.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the noble Lord, Lord Purvis of Tweed, explained that this is a probing amendment, so I do not have a great deal to add to what he and the noble Lord, Lord Lansley, have said.

I pick up on one point: how do we ensure the conformity of that oversight when the products are coming into the UK? In the sixth group, which I do not think we will get to today, we will look at bringing in a good number of impact assessments and reports. The strongest part of the amendment tabled by the noble Lord, Lord Purvis, is the call for the publishing of a report on the impact of provisions on the treatment of conformity assessment bodies. That will give your Lordships’ House and Parliament the opportunity and oversight to ensure that there is no undercutting of quality and services. However, I am happy to support this probing amendment and look forward to more clarity from the Minister.

[Viscount Trenchard (Con)]

My Lords, like the noble Lord, Lord Purvis of Tweed, I was unable to participate at Second Reading. I was asked by the Lord Speaker to be part of the reception party for the President of South Korea, which was a great honour.

I am very interested in this Bill. I have been involved with Japanese civil servants and Japanese companies in discussions leading up to the UK’s application for accession. I am very much aware of how important it was to the Government of Japan that the UK should accede to this partnership and as early as possible. Many Japanese associates have told me that they welcome that the UK will be able to exercise a de facto joint leadership of this group with Japan in the initial period, which will help ensure that the CPTPP functions efficiently and in the interests of all its members. I agree with the noble Lord, Lord Purvis of Tweed, that we do not want the CPTPP to enable substandard goods to come in. Obviously, it will be very good, as my noble friend Lord Lansley said, if we can move towards mutual recognition of conformity assessment bodies, especially with countries such as Japan and with other CPTPP members.

However, I am not sure that this amendment is necessary. If the conformity assessment bodies are doing their job, they will have to apply for the granting of equivalents of the standards to which the goods to be imported conform in their own country. Therefore, this amendment is possibly otiose because conformity assessment bodies will have to do this anyway.

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[Lord Purvis of Tweed (LD)]

My Lords, the Committee is in the debt of the noble Lord, Lord Lansley. He is rare among us in being able to identify the questions, ask them and then come up with a sensible answer, all in one. He did so on this. I am slightly anxious, because he took away the only thing I was going to mention: tied aid and some of the experiences that we have unfortunately had with it—we have banned it in the UK—and the Pergau dam situation with regards to contracts that have been issued. We have memories of how this can go awry.

I record a recent visit I made to Vietnam. I wish to see UK trade with Vietnam grow and am very supportive of any areas in which we can make that happen, but in some CPTPP member countries it is less clear than it is in the UK what the balance is between private and public enterprises and what are the funding mechanisms of bodies that would be open to potentially benefit from UK procurement access. The noble Lord asked valid questions, and I have a degree of sympathy with his conclusion that it would be worth accepting his amendment.

[Lord McNicol of West Kilbride (Lab)]

My Lords, there is very little to add to the detailed probing question—and answers—from the noble Lord, Lord Lansley. With that, I look forward to the Minister’s response.

[Lord Johnson of Lainston (Con)]

My Lords, it is a constant pleasure to debate with such intellectual firepowers as the noble Lords, Lord McNicol and Lord Purvis, and my noble friend Lord Lansley. It is a joy to learn new things, every day, about the opportunities and benefits of free trade, particularly the CPTPP treaty itself.

However, in this instance, the Government are not keen to accept the amendment, for the simple reason that this strikes me as an absolutely eminent clarification of the procurement relationship between a UK procurer covered by the CPTPP legislation and the international procurer who would not be covered by it. It clarifies the point that, if we are in a minority funding position, we have to be in a majority funding position in order to qualify under our own procurement legislation.

Therefore, this does something very sensible: it confirms that point. I am happy to clarify this further with the noble Lord outside this room, but it would be difficult for procuring agents in the UK who were not in control of the funding process to conform to the CPTPP procurement funding processes or our own national processes. That is why this is clarified. Otherwise, if you have a minority position, you do not have control over it—if you are putting in only a small amount of capital, it makes sense for the international body to make the procurement decisions.

Maybe I have missed something, but this strikes me as quite straightforward. I felt that, of all the amendments placed today, what we were doing here seemed to make things easier and clearer, rather than more opaque.

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namely, the date of the application for protection of the GI—would be a better way of describing it. I would be grateful to be educated in this matter by my noble friend. I beg to move.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I thank the noble Lord, Lord Lansley. The Trade Marks Act 1994 at no point uses the phrase “established by use”. However, it specifically makes provision for registered trademarks, whereas—this was the final point of the noble Lord, Lord Lansley; he may be wrong and looking for clarification from the Minister—if it is established by use then it would presumably be unregistered, as he said. Therefore, would it not be subject to common law through the concept known as “passing off”? With that, I look forward to the Minister’s response.

[Lord Johnson of Lainston (Con)]

As always, I am grateful to noble Lords for their points. Clearly, it is easy to confuse trademarks and geographical indications. With geographical indications, there is a principle of established use, whereas with trademarks, something is either trademarked or it is not. That is why we are comfortable with the language as it sits.

There is no reference in the Trade Marks Act 1994 to the concept of “established by use”, because the concept refers to unregistered trademarks, whereas the Trade Marks Act is concerned principally with protections conferred on registered marks. However, “established by use” has meaning under the law relating to geographical indications.

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[Viscount Trenchard (Con)]

My Lords, I entirely endorse what my noble friend Lord Lansley has just said. There is considerable room for confusion between trademarks and geographic indications, a relatively new concept, especially the application of restrictions or protections for geographic indications in countries whose language is not only not English but is far away from any language used in the European Union. Consider, for example, suits. A common word for a suit of clothes in Japanese is “sebiro”, which comes from “Savile Row”. Is that not a kind of geographic indication? I think there is scope for considerable confusion there.

The other amendment in this group, Amendment 34, was ably spoken to by the noble Lord, Lord Davies of Brixton. I worry about giving additional protection to the precautionary principle. Putting too much store by the precautionary principle has led us to be too averse to risk in many aspects of our national life and it is likely to lead to restrictions on the economic growth that we so badly need. Our accession to CPTPP is an opportunity to enhance that growth by developing more trade with the fastest-growing part of the world, including countries which place less store on the precautionary principle. I worry that, if we try to export the unduly cumbersome regulatory regime that we have had until now into countries that are growing faster and which have a more proportionate approach to the subject, it will cause, at best, restrictions on us taking up the opportunities that are available.

Lastly, I entirely agree with the good point made by the noble Lord, Lord Kerr of Kinlochard, that our accession may not take effect until a year or more after the passage of the Act, and so the question of the timing of the report being made to Parliament is a very appropriate one.

[Lord McNicol of West Kilbride (Lab)]

My Lords, let us deal with this Second Reading issue. My understanding of the Companion is that there is no need to have spoken at Second Reading. It is very nice that noble Lords have apologised but there is no need; all are welcome in Committee, even if they did not speak at Second Reading, and so noble Lords do not need to give excuses for why they were not there.

The noble Viscount, Lord Trenchard, touched on a point about restrictions. The amendment tabled by my noble friend Lord Davies is a neat way of dealing with a number of the issues that will arise and that we will need to deal with. Let us take environmental principles and look at a number of the countries that we will be joining with in CPTPP. Take pesticides, which I am sure will come up again in the next group, on our second day in Committee. PAN UK analysis conducted in 2021 revealed that there are 119 pesticides, active substances, that we have banned in the UK to protect our health and environment but which are still permitted in one or more of the CPTTP member countries. Of that total, 67 are classified as highly hazardous pesticides. If these pesticides are used in these countries just now, and we have banned them in this country for very good and sensible reasons, how do the department and the Government protect consumers and farmers in the UK? The way to do that is very neatly set out in the amendment laid by my noble friend about taking note of this and the Secretary of State having to deal with it.

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[Lord Foster of Bath (LD)]

My Lords, the noble Lord, Lord Lansley, suggests that I should go into great detail explaining the whole issue of performers’ rights. I will disappoint him and other Members of the Committee because I am sure that those with an interest in it know that, basically, it is about performers and, in some cases, record label owners and so on receiving appropriate payment for their performances that take place in another country. It seems absolute common sense that if we do a deal with country X, we arrange it so that if our performers perform there we get payment and vice versa. Reciprocity seems pretty fundamental.

I have produced an amendment which says that in this legislation we ought simply to say that the reciprocal arrangements are with CPTPP member countries. Having raised real concerns about our failure during negotiations to make any progress on a number of intellectual property issues or to provide some of the support that our creative industries were seeking, I nevertheless welcome that this is part of the treaty. However, the question remains whether what I am seeking—a simple reciprocity agreement—is happening. The truth is that it is not.

I am enormously grateful to the Minister, who, after I raised these issues in basic terms as I have just done, wrote to me to explain the situation. I hope he will not mind but, to save him repeating it in his speech, I will read a little of what he wrote to me:

“The changes the Bill makes are necessary for the UK to accede to CPTPP and will expand the basis on which foreign performers can qualify for rights in UK law. In addition to the Bill, the Government will be making accompanying secondary legislation under existing powers”


and various other things to make sure that it all happens. That is fine, but he went on:

“The changes in the Bill will apply not only to performers from CPTPP countries but also those with a connection to other countries that are party to relevant treaties relating to performers’ rights to which the UK is also party. This is necessary to comply with the UK’s national treatment and most favoured nation obligations in those treaties”.


He is saying that if we do something with CPTPP countries, we would have to take into account our other treaty obligations and the impact it would have elsewhere. He adds:

“Beyond these changes, however, the UK has some flexibility under its international obligations around how it provides certain rights to foreign nationals, in particular the right of performers to receive equitable remuneration (i.e. a share of the royalties) when their performances are broadcast or played in public”.


In other words, what we have in the legislation at the moment, as I understand it, are changes that mean that we take account of what is going to happen in relation to reciprocal arrangements with CPTPP member countries as well as a stack of other changes that will take place, affecting our relationship with other countries, with some possible variation in how we deal with them. I absolutely understand that it would make life very easy for the Government to sweep these things up all at once, but it leaves us totally in the dark on exactly who we are dealing with and what the implications are, particularly for the music industry. The music industry is extremely concerned about this. It has told me that it has had discussions with the Minister and officials, that it got the information about all this at very short notice, and that it was unable to make any progress with getting the Minister to see things differently.

Its argument, and that which I would make—it is exactly the same as that made by the noble Lord, Lord Lansley—is as follows. If consequential changes are necessary in relation to countries beyond those that are members of the CPTPP, there is plenty of time between now and accession—we debated this earlier and all accept it is nine months away or possibly more—for the IPO to consult on the other issues referred to in the Minister’s letter and for us then to have an opportunity to debate their implications before they are brought in. The legislative arrangements to do that are very clear.

I am deeply concerned that these proposals are coming from the IPO, which in many respects does very good work but sometimes runs ahead of things, as it did with its proposals for text and data mining, for example. They came as a huge shock, were massively opposed and were eventually withdrawn and have not gone ahead—I am grateful to the Government for doing that. I do not want a repetition of that, so I hope it is possible for the Minister to accept an amendment that says, “For the time being, let’s concentrate on reciprocal arrangements with CPTPP member countries but, separately, have consultation on all the other things that the Minister wants to achieve so we can have an opportunity after the consultation to know what the impact will be, and then we can make a decision”.

I want to see that information before I decide whether those changes are right. The Minister may already have seen some information, because the one bit of his letter that I did not read out suggests that the department has already come to a conclusion. It states, at the end:

“As such, we expect the direct impacts of the measures … on UK parties to be small”.


I do not know whether that is true. I do not know what the implications are—nor, I think, do other Members of the Committee. The Minister may have a response that reassures me that we can go ahead in the way that the Government propose, but, given the lack of consultation we have had to date on those other issues, it would be helpful to proceed in the ways that either I or the noble Lord, Lord Lansley, have proposed—both achieve the same end.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I have Amendment 10 in this group. It is a short, probing amendment, and I have a few questions on it for the Minister. Again, it touches on performers’ rights. Clause 5(5) refers to

“an act done … before the commencement date”.

It is specifically about acts that have taken place in the past. My questions for the Minister are detailed, so I am more than happy for him to write to me, because I do not think this will make it through to Report.

Are there any practical impacts on the performers, and, if so, what are they? Does this date back indefinitely or is there a timeframe or time limit for when the performance act took place? Finally, is there anything that performers need to do to protect themselves with the CPTPP being put in place, or any guidance on it? Again, I am happy to support the amendments in the names of the noble Lords, Lord Lansley and Lord Foster, but I am seeking some clarification about performers’ historic acts.

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[Lord Johnson of Lainston (Con)]

I am grateful to the noble Lord. I am very happy to have conversations about this. Clearly, these FTAs make it difficult, if we are to comply with them, to have various and significant amendments to them. However, I am reassured by my officials that, in making significant changes to “qualifying countries”, we would make sure that there was an appropriate level of consultation. I am very sensitive about making great promises from the Dispatch Box because I always find myself getting into trouble later, but I hope that—

[Lord McNicol of West Kilbride (Lab)]

No, I think it is good. Carry on.

[Lord Johnson of Lainston (Con)]

The noble Lord, Lord McNicol, would like me to make off-the-cuff commitments on behalf of the Government. It would be only logical to assume that there would be a degree of consultation in the same way that we are effecting one in this instance but, since I cannot give a firm commitment, I am very comfortable to come back to my noble friend between now and Report.