Trade Bill

Viscount Younger of Leckie Excerpts

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

[Lord Hain]

I apologise for prolonging this discussion. I urge the Government to reflect on this: given the trouble that we have already run into in this process with the devolved Administrations, if there were a process where these regulations automatically had to come under the umbrella—as the noble and learned Lord, Lord Mackay of Clashfern, implies and which I agree with—that would impose a discipline on all the parties concerned to use that process to resolve any common issues that are outstanding. It is an established process, but it has not really been used. In the post-Brexit situation, which I think will be a nightmare, these procedures will be needed even more to ensure the constitutional stability, success and indeed viability, given what is going on in Scotland and Northern Ireland over Brexit, of the whole of the union.

[Viscount Younger of Leckie (Con)]

My Lords, the Committee will notice that we have another change of driver—or perhaps a navigator having temporary control of the wheel. If I read the noble Lords, Lord Stevenson and Lord Purvis, correctly, the intention behind the amendments is to ensure that the voices of the devolved Governments are heard in relation to trade agreements. That is something that the UK Government entirely support. Indeed, the Department for International Trade is in discussion with the devolved Administrations on their role in future trade agreements.

To give a little more information to the noble Lord, Lord Purvis, the UK Government are committed to working closely with the devolved Administrations to deliver a future trade policy that works for the whole of the UK. But it is important that we do this within the context of the current constitutional make-up of the UK, while acknowledging that international trade policy is a reserved matter. To go further, we are currently having detailed discussions with the devolved Administrations at official level on their role in future trade arrangements, with the aim of agreeing new working arrangements before EU exit. In fact, we are continuing this engagement later this week.

I am happy to provide assurance to the House that our clear intention is that there will be a formal and regular intergovernmental ministerial forum to consider future trade agreements. The devolved Administrations already participate in other ministerial forums, such as those for EU negotiations. Frequency and any terms of reference are subject to further discussions and agreement with the devolved Administrations. However, we expect the forum to include our Minister for Trade Policy and his or her counterparts in the devolved Administrations.

The noble Lord, Lord Purvis, asked some questions on this point. The UK Government view securing an agreement with all the devolved Administrations as the best possible scenario, and it is the one that we will continue to work towards. We are committed to securing LCMs for the Trade Bill and have worked closely with the devolved Administrations to understand and respond to their concerns. As a result, we have made amendments to the Bill that answer many of those concerns.

The requirement for Ministers of devolved Administrations to seek the consent of the UK Government when making regulations that come into effect before exit day, or that relate to quota arrangements, has changed to a requirement to consult, of which I suspect the noble Lord will be aware. We will continue to respect the devolution settlements as they relate to trade agreement continuity and future FTAs. We will not normally legislate in areas of devolved competence without the consent of the devolved Administrations, and certainly not without first consulting them.

The amendment, however, would apply to existing trade agreements only and is, in this context, not proportionate. Clause 2 will be used only to ensure the continuity of existing trade agreements that are already in force. It will not be used for future trade agreements. Therefore, Amendment 17 would add risk to the swift and timely rollover of existing trade agreements. Given that these agreements are or will be already in force and that the purpose is to ensure continuity, the amendment is, at best, disproportionate and could mean that we were unable to deliver crucial continuity for businesses and consumers throughout the United Kingdom. For that reason, the Government cannot support Amendment 17. I hope that I have provided sufficient assurances on our intentions for engagement with the devolved Administrations in trade agreements.

[Lord Purvis of Tweed]

On the first point, it is very helpful to hear about discussions taking place through ministerial forums. This would be, I think, outwith the memorandum of understanding process in the joint ministerial committees, which have now been well established for 20 years as the intergovernmental framework between the devolved Administrations and the UK Government. I am sure the Minister is always very careful and specific with his language: I heard him say “forum” but I did not hear him say “joint ministerial committee” or “intergovernmental committee”. A little more information about that would be helpful.

[Viscount Younger of Leckie]

I can help the noble Lord. I was very careful to use the word “forum”—but perhaps I should have used “fora”, which of course is the plural. The reason for that is that the process is designed to mirror what has worked with the EU up to now. We want to replicate the terms that are used for EU negotiations by not calling it a joint ministerial committee. But I understand the intention behind the noble Lord, Lord Stevenson, using that term.

[Lord Stevenson of Balmacara]

I am on the same page as the noble Lord, Lord Purvis. Why is it so complicated? The joint ministerial committee system has, as he said, worked well for more than 20 years. It provides an opportunity for those who are required to be present around the table to sit down, discuss and arrive at conclusions. In a debate on an earlier Bill, the noble and learned Lord, Lord Mackay of Clashfern, suggested a way of developing that into a formal structure within which there would be appointed chairs or elected chairs and rotating responsibilities. We seemed to be heading down that route, but now we are talking about this rather curious IGMF, which I had not heard of before. It is nice to know that it does indeed exist and may be working on EU matters. But I have always understood the relationship around EU matters as being—as the noble and learned Lord, Lord Mackay, picked up rather cleverly—around a settled set of responsibilities, where there is not the problem of geography meeting functionalism. That is the problem here, because as soon as we have a situation where the responsibility is devolved because it is not reserved, and there is a need to arbitrate and barter out the various competing interests across the nations of the United Kingdom, there has to be some formal structure. I do not think a forum provides that.

[Viscount Younger of Leckie]

We may be dealing with semantics here, but I will certainly write to the noble Lord, Lord Stevenson, and the noble Lord, Lord Purvis. My understanding is that there is a reason, but it is not a particularly big reason, which is that the difference between a joint ministerial committee—the expression that the noble Lord, Lord Stevenson, has just used—and a forum is that for a forum the devolved Administrations are seeking and are getting more regular and frequent conversations with us in the UK Government. I think a letter should clarify that.

[Lord Purvis of Tweed]

I am grateful that the Minister will be providing a letter. As the Commons committee and others have said, such a forum, which will include other groups, including representatives from the Administrations, should not be seen as an alternative to the mechanism of joint ministerial intergovernmental committees, which, as the noble Lord, Lord Stevenson, said, are more about the discussions that take place about legislative competences. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, this is important now. The Minister said it is important that the continuity agreements are done swiftly. These continuity agreements may be in place for three years at the least, but they can be extended time and again. The agreements currently in place with the EU are permanent agreements, therefore we would be bringing into UK legislation what could well become permanent agreements. It is therefore important that if there are outstanding issues about where those competences lie, they are cleared through some form of intergovernmental process. If those points could be addressed in the Minister’s letter, I would be most grateful.

[Viscount Younger of Leckie]

I will certainly address the extra points that the noble Lord has made. The point I want to emphasise to the Committee today is that this forum is being regarded as particularly serious in the times that we are in. I have mentioned some names to be included as part of that forum, but this is work in progress.

On Amendment 76, the UK Government recognise the important role each devolved Administration will play in the implementation of the Trade Bill. The Government are also committed to ensuring that withdrawal from the EU is a successful and smooth process for the whole of the UK. The use of concurrent powers is in keeping with existing devolution arrangements. It allows for regulations to be made once for the whole of the UK where it makes practical sense to do so. The intention behind this is legislative efficiency.

The noble Lord, Lord Purvis of Tweed, asked about the implications for the Trade Bill of the freezing power in the EU withdrawal Act. We have been clear that the regulations to freeze competence to preserve our existing frameworks are not a mechanism for avoiding seeking legislative consent when creating our future frameworks. Without wishing to labour the point, I reiterate my earlier commitment that the UK Government will not normally use these powers to amend legislation in devolved areas without the consent of the relevant devolved Administrations and certainly not without first consulting them.

I acknowledge the mini-debate started by the noble Lord, Lord Hain. In essence, he asked whether the concurrent powers amount to a power grab—I think that is the expression he used. Under the Trade Bill, every decision that the devolved Administrations can make before exit they will be able to make after exit. The augmentation powers in the Trade Bill will be held by both the UK Government and the devolved Administrations. This approach will provide greater flexibility in how transition agreements are implemented, manage legal risks where competence boundaries are unclear, and allow for a reduced volume of legislation. The noble Lord invited me to write, and if he is not satisfied with that answer, I will certainly follow up with a letter should he wish.

Trade Bill

Viscount Younger of Leckie Excerpts

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

[Viscount Younger of Leckie (Con)]

My Lords, the UK Government support an ambitious environmental goods agreement. We believe that a high-standard environmental goods agreement would have three effects. First, it would enhance global access to clean technologies. Secondly, it would advance environmental protection. Thirdly, and not least, it would benefit UK workers, businesses and consumers.

Negotiations on the environmental goods agreement began in 2014 but stalled in 2016 due to disagreements over the scope of products to be liberalised and increasing global trade tensions. While the UK supports the objective of having an environmental goods agreement—and we have been a particularly active supporter in the WTO negotiations—I understand why the noble Lords, Lord Stevenson of Balmacara and Lord Grantchester, have proposed this amendment. I took note of what the noble Lord, Lord Grantchester, said. However, there is a reason we are not able to take this forward: it is already the objective of the UK to continue to support and participate in the negotiations on this agreement. That position will not change. It is not clear what “all necessary steps” in the amendment are, who would decide what those steps are, or what benchmark would be used to decide whether these legal conditions had been met.

I will attempt to answer the noble Lord’s question about significant differences. In our reports under Clause 3, we will be giving details and explaining reasons for all differences that have an effect on trade. There is no official definition, in fact. The noble Lord said that he is talking about the differences—let us be clear about this—in rolling over continuity agreements set out in reports which are prepared under Clause 3. If that does not satisfy the noble Lord, I am very willing to write a letter with the necessary legal ins and outs on this particular matter, but I hope with that explanation the noble Lord will be prepared to withdraw his amendment.

[Lord Grantchester]

I thank the Minister for his suggestions. It might be very useful to have a look at those, so that they are more widely known. I do not know how far they are already known or not, but I was unaware of them, so if he could write on that detail it would be significant. I thank him. I am pleased to have it confirmed that the intention and ambitions of the Government include the very point we wished to make with this amendment. With that, I am happy to withdraw the amendment.

Trade Bill

Viscount Younger of Leckie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 30th January 2019 Lords Chamber

[Lord Fox (LD)]

The noble Lord, Lord Lilley, before he had to hurry off, spoke of transparency as if it were a threat to negotiation. Speaking to another amendment earlier, the noble Baroness, Lady Neville-Rolfe, who has more contemporary experience than the noble Lord, spoke of her regrets about the TTIP negotiation, and the fact that the NHS brouhaha that blew up around it scuppered, or terminally injured, that negotiation. Transparency is not a prerequisite just because it is a good thing; in the modern world it is needed to get consent for such things to happen. In the world we live in today, such negotiations can be stopped—and if we think the TTIP negotiation was an example of that, we have not seen anything until we have seen a US treaty being negotiated. Transparency is not just a good thing; it is an enabler, which allows us to have such treaties.

[Viscount Younger of Leckie (Con)]

My Lords, forgive me for stretching the definition of repetition, but before I address the amendments in detail I would like to underline the fact that the Bill concerns continuity for our existing EU free trade agreements as we leave the European Union. I mention that without wishing to revisit the emphasis that we placed on the word “continuity” on Monday last week. Scrutiny of new free trade agreements is not part of the Bill, nor is scrutiny of our future relationship with the EU.

[Lord Hannay of Chiswick]

I really plead with the noble Viscount not to say that again. We all know that if, through inadvertence or incompetence, the Government take us over the cliff on 29 March, this Bill—by then, presumably, an Act—will be the only instrument we have to guide our trade policy. Therefore, will he please stop saying that it is only about continuity and admit, as his noble friend Lady Fairhead did when replying to an earlier amendment, that it is meant to be capable of providing for both eventualities? Will it provide not only for the eventuality in which it is a continuity measure that lasts for the transitional period—what is sometimes laughingly called the implementation phase, in which nothing is implemented—but for circumstances in which we have to operate an independent trade policy on 30 March 2019?

[Viscount Younger of Leckie]

I had only just started, and I stand by my words, because I was about to go on to say that, none the less, I understand the desire of noble Lords, including the noble Lord, Lord Hannay, to debate these issues today—and that is what we have just done. I also appreciate the desire to understand how the Government intend to fulfil our commitments to transparency on and scrutiny of future FTAs as we exit the EU.

The amendments on future FTAs pursue many aims, which the Government understand. To be helpful to the House, during my remarks I will give as much information as I can on progress and process on FTAs. I will also answer the question raised earlier by the noble Lord, Lord Hannay—but not just yet—and will agree with the remarks made by my noble friend Lady Fairhead.

Amendments 33 and 99, which the noble Lord, Lord Stevenson, spoke to, seek to ensure that Parliament has a significant role in free trade agreements via the creation of a new Joint Committee. Amendments 71 to 74, which the noble Lord, Lord Purvis, spoke to, seek to achieve similar outcomes through imposing obligations on the Government in relation to mandate-setting, transparency and scrutiny before signature. I will address those amendments together.

First, I shall give a little context. Brexit does not change the fundamental constitutional principles that underpin the negotiation of international treaties. The making of treaties, including international trade agreements, is a function of the Executive. At the same time, it has long been held—and this Government continue to hold—that Parliament should have the opportunity to scrutinise treaties effectively. In 2010, the Constitutional Reform and Governance Act confirmed, after a process of consultation, the respective roles of the Government and Parliament in treaty-making. The Government will continue to support and facilitate parliamentary scrutiny of treaties under CRaG.

The noble Lord, Lord Purvis, asked about the Israeli trade agreement. There is agreement in principle on an FTA, but subject to—

[Lord Bilimoria]

My Lords—

[Viscount Younger of Leckie]

If I may be allowed to complete this point, I will then give way to the noble Lord. There is agreement in principle on an FTA, but it is subject to a few remaining technical issues so the final text is not quite ready. When a continuity agreement is finalised, it will be laid with an Explanatory Memorandum and report.

[Lord Bilimoria]

I thank the Minister for giving way. He mentioned that the Government are for scrutiny, so why are these amendments required? The amendments have been tabled because there is a complete lack of parliamentary participation in the Trade Bill. Surely he can understand the uneasiness of this House. The Government tried to railroad the implementation of Article 50 without the permission of Parliament, and the case had to go all the way to the Supreme Court for Parliament to have a say. The Government then tried to withhold a meaningful vote from Parliament, and Parliament had to fight for that. The Government tried to hide their legal advice and Parliament had to fight for its disclosure. Now we have Henry VIII powers being implemented left, right and centre and a Trade Bill acting in a similar way over future trade agreements.

Those agreements are going to be hugely difficult to negotiate. They take a long time to implement, as I know. India has only nine bilateral free trade agreements with other countries, and not one with a western country. This process is going to be hugely difficult, and it looks as if Parliament is going to be cut out of it altogether. We are wrecking the constitution of our country and the balance between the legislature, the Executive and the judiciary. I do not think the Minister can just say, “We are allowing scrutiny”.

[Viscount Younger of Leckie]

If the noble Lord will allow me to continue, he will see that I am not saying that Parliament has been cut out of this altogether; far from it. I said at the beginning of my remarks that I would give as much information as I could, and I hope it will give reassurance to the noble Lord and indeed the whole Committee.

[Baroness Kramer]

I am sorry to trouble the Minister but I have one question. I did not quite understand what he meant just now by the word “finalised” when he talked about the treaty with the Israelis. If he meant that the treaty would be a signed done deal and would then be brought to Parliament so that we could look at it, would we scrutinise it? Would it be like an SI, whereby we cannot impact the terms in any way, so we simply have the nuclear option of accepting or rejecting it? The message of this House has been that we regard scrutiny as something far more contributory than that, involving engagement in the process at a much earlier stage. That is why we are extremely troubled. Will the Minister clarify exactly what he means by “involving Parliament”—after the fact or before the fact?

[Viscount Younger of Leckie]

As I said earlier, I have some more remarks to make about the process for future trade agreements. What I said about the Israeli agreement was that when a continuity agreement is finalised, it will be laid with an Explanatory Memorandum and report and will be under the affirmative procedure.

I will briefly touch on what we have already committed to in this area. My right honourable friend the Secretary of State for International Trade reiterated in an Oral Statement that Parliament should have a crucial role to play in future free trade agreements. The Government will ensure that parliamentarians are given the opportunity to consider the level of ambition of the Government’s approach to negotiations and the potential implications of any agreements. We will lay our outline approach to each negotiation before both Houses in order to facilitate that before we begin negotiations. During negotiations the Government will keep both Houses updated on progress, including providing analysis of appropriate points. Once an FTA has been negotiated, it will need to be implemented and then ratified. I remind the House that free trade agreements cannot of themselves change domestic law.

To implement a new trade agreement with a new partner, the Government will bring forward a bespoke piece of primary legislation for each new trade agreement that requires changes to legislation where there are no existing powers. Parliament will have the opportunity to scrutinise the new legislation in the normal way.

[Lord Purvis of Tweed]

I am grateful to the Minister for giving way; his contributions are helpful. This may be a technical point, because we have had an element of that statement from the Government at Second Reading. There could be a marked difference regarding a trade agreement that could have a big impact on our country, but which does not require any changes to primary legislation. If a trade agreement does not require any changes to primary legislation because that is still on the statute book, the Government are proposing that no measures be brought to Parliament to approve—only the primary legislation, if that does not currently exist. The case made by noble Lords is that a trade agreement in its own right needs to come forward for authorisation, regardless of whether it requires additional primary legislation. That is the point we need to get across.

[Viscount Younger of Leckie]

The noble Lord makes a good point. I reassure him that what is also very important is that the negotiation and scrutiny of these trade agreements has to allow for a certain flexibility. I will go on to say a little more about the process, because implicit in it is that treaties between different types of countries using different types of products can be extremely different, as the noble Lord will be aware, so flexibility is very important.

The legislation must be brought forward before ratification, as I was saying. The same will be true of our future relationship with the EU, which will surely require detailed implementing legislation. I hope this demonstrates that the Government are already committed to Parliament being able to shape and scrutinise future trade agreements. I listened carefully to what the noble Lord, Lord Purvis, said about current processes and steps in considering trade agreements. However, since July work has been taking place in both Houses to consider Parliament’s role in future free trade agreements. The Constitution Committee has an ongoing inquiry into the parliamentary scrutiny of treaties. The Joint Committee on Human Rights is inquiring into human rights protections in international agreements, and that touches on Parliament’s role. In the other place, the International Trade Committee published a report just after Christmas that makes a number of recommendations in this area.

To assist the noble Lord, Lord Hannay, the Government are listening carefully to these views and we are conducting our own work. We have little quarrel with his remarks and aspirations, and I hope there is agreement there. We recognise, not least following the resolution of this House on Monday, that more detail is needed on how we envisage Parliament—and particularly this House—being involved in the scrutiny of trade agreements. The question of how Parliament scrutinises future FTAs must be answered, with the benefit of close and considered dialogue between the Government and Members of Parliament. I have listened to the contributions of noble Lords today, and I assure the Committee and the noble Lord, Lord Hannay, that we will reflect on them seriously. I confirm again that we will bring forward our proposals with more detail before Report.

[Lord Purvis of Tweed]

That is very helpful. As the Minister knows, the devolved Administrations have also submitted evidence to the International Trade Committee in the Commons and are participating in the revision process. The devolved Administrations were mentioned specifically in the resolution of this House last Monday. I wonder if, in advance of the Government bringing forward any of their proposals, they could write to noble Lords or give a clear statement on how they envisage the devolved Administrations, and potentially the regions of England and the combined authorities, having an active role.

[Viscount Younger of Leckie]

I thank the noble Lord for that. It does indeed take us back to the debate we had last week, and I hope he remembers that I gave certain reassurances on that point. What I can say—without having the details in front of me—is that, as he knows, there is ongoing dialogue with the devolved Administrations to ensure that they are kept fully in touch with what we are doing. That will be the general tenor of the ongoing discussions as we look forward to FTAs.

I would like to pick up on some of the remarks made by the noble Lord, Lord Bilimoria, in the last debate as they are relevant to this point. He asked how our approach differs from the role of the European Parliament in EU trade negotiations. He may well know this but I shall spell it out: the European Parliament’s role operates in relation to EU trade policy. We are offering scrutiny for the UK Parliament at every stage of the process in a way that is appropriate and proportionate to the UK constitutional context. In the UK, the power to make treaties is a power held by government, but the context of the negotiations will be different. The European Commission negotiates free trade agreements representing the interests of the 28 member states. It is given the mandate to do so by the Council, and final agreements are approved by the European Parliament and the Council before they can come into force. UK-only free trade agreements will be negotiated by the elected Government in the best interests of the UK. The Ministers responsible for the negotiations are directly accountable to Parliament.

[Lord Lansley]

My noble friend might also reflect that there is some truth in what the noble Lord, Lord Kerr of Kinlochard, reminded us of in previous debates. American negotiators often find there is significant benefit in having what I think they describe as “Congress reserve” in negotiations—what we might call “parliamentary reserve”. That sense of engagement with Parliament during the course of negotiations is important in itself. What happened last night in another place might give anybody engaged in such negotiations pause for thought; it is important that they know during the negotiations that they can take Parliament with them.

[Viscount Younger of Leckie]

I said at the beginning that this is likely to be a wide-ranging debate; my noble friend’s remarks will indeed be fed into the processes being considered at the moment.

I would like to address a question raised by the noble Lord, Lord Stevenson, who asked what access parliamentarians would have to negotiating texts. We take seriously our commitment to keeping Parliament apprised of the Government’s negotiating intentions. That is for the purposes not just of transmitting information but of inviting scrutiny and allowing Parliament and its committees to take informed views. While we support Parliament’s important scrutiny role, Ministers have a specific responsibility, which Parliament has endorsed, not to release information that could undermine our negotiating position. On transparency more generally, I reiterate our commitment to a transparent approach. We are developing proposals for the release of updates on negotiations; we will bring these forward shortly.

Let me say more about the consultation process, an issue raised by the noble Lord, Lord Stevenson. The amendments also seek to ensure wide consultation on FTAs, which is a good idea; indeed, that is the approach the Government are taking. We conducted one of the largest consultation exercises ever undertaken for the new FTAs we are considering with partners without an existing FTA with the EU—the US, New Zealand and Australia—and for our potential accession to CPTPP. This included a 14-week public consultation open to all businesses, individuals and other organisations in the UK and abroad, and 12 outreach events throughout the UK, including in each of the devolved nations. We have also conducted ongoing engagement with stakeholders on trade policy, including “town hall” style briefings, roundtables with different groups of stakeholders, regular stakeholder briefings and webinars designed to engage with smaller and regional stakeholders.

I would also like to touch on impact assessments. I do not propose to address—

[Lord Purvis of Tweed]

I am grateful to the Minister for giving way; he is being very tolerant. He may recall that I mentioned on Second Reading that I took part in one of those consultations, posing—if that is the correct word—as a Scottish business and taking part in the Government’s consultation on the prospective trade agreement with the United States. I mentioned then and repeat now that in that consultation, I was presented with no information about what the parameters of any trade arrangements with the United States were likely to be. In effect, I was being asked questions the parameters of which I did not know. That is not meaningful consultation. Can the Government reflect on the consultation process they have carried out? I do not believe it was sufficiently meaningful.

[Viscount Younger of Leckie]

I am listening to the noble Lord. I do not know the details of that negotiation, but I will take that back and reflect on it. There may have been some very good reasons why the information was not forthcoming, but I will reflect on that and write to the noble Lord with some information.

[Lord Hannay of Chiswick]

I am very grateful to the noble Viscount for some of the remarks he made about what the Government are likely to do before Report in tabling their own amendments on the negotiating process. That was helpful and it will be good to look forward to that. However, in everything he said, I am afraid I detect an unwillingness to give Parliament a role at a time when it would really help. Everything he said involves decorating the final stage—the approval of an agreement already negotiated—with all sorts of wonderful bells and whistles. We all know that then you have only the nuclear option. You have concluded the negotiations and, if Parliament objects, you cannot amend the text that has been negotiated with the third country. If it objects, it can reject the agreement and that will be very damaging for the national interest and the relationship with that country.

I listened very carefully to the noble Viscount. At one stage, he claimed that the Government would negotiate on trade as the Executive and under their right to do so. That is just the problem. The word “mandate” did not come into a single thing he said. All I can say—politely, I hope—is that when the Government table their amendments, the word “mandate” had better be there. If it is not, I think they will get badly stuck. It is not magic. The mandates under which the European Union negotiates are quite general; they are not specific about this or that tariff, but they are very helpful in setting the parameters under which the negotiations are conducted. I believe the Government would benefit from that, so please think a little about the word “mandate”.

[Viscount Younger of Leckie]

Again, I listen carefully to what the noble Lord says. The best way to answer him is to say that I will indeed feed back his views. They are somewhat negative—somewhat too negative, I would argue. I have spent a lot of time spelling out the details of processes and procedures, as far as I can. Before I give way to the noble Viscount, I also mention that the noble Lord, Lord Hannay, said that we were going to table amendments on Report. I want to make it absolutely clear that I have pledged to come forward with proposals before Report. I give way to the noble Viscount.

[Viscount Waverley]

I thank the noble Viscount. With the greatest respect, I think it would be fair to describe the Government’s record on bringing ratification processes before Parliament as patchy. When the noble Viscount goes back to his department, I ask him to consider the Government’s record in the ratification timing process, so that that can be included in some way, either in this amendment or the Bill at large.

[Viscount Younger of Leckie]

That is a helpful contribution from the noble Viscount. I think he has some experience in these matters, so I will certainly pass that on. I would like to move on fairly rapidly to talk about impact assessments, but I do not propose to address the aspects of these amendments regarding impact assessments in this speech, as the issue was addressed in earlier Committee debates and I believe the Government’s position is clear. Nor will I revisit the assurances that we have already given on our absolute commitment not to lower standards through trade agreements.

Let me move on to the future relationship with the EU. One amendment in this group—Amendment 59, tabled by the noble Lord, Lord Purvis—is targeted specifically at our future relationship negotiations with the EU. I appreciate what the noble Lord is trying to do here in replicating Section 13 of the European Union (Withdrawal) Act 2018. However, Section 13 was drafted for the very particular context of our withdrawal package under Article 50. It is not an appropriate or necessary mechanism for Parliament to approve our future relationship treaties with the EU. With Section 13, we knew what form of documents were coming to us for approval. We then judged it necessary to create a role for Parliament over and above the existing provisions of the Constitutional Reform and Governance Act 2010, or CRaG, to ensure that the withdrawal agreement treaty and the accompanying political declaration could be considered as one package.

This amendment, however, is grappling with the difficulty of trying to legislate for a treaty or treaties where the number and form of those treaties is not yet known. The amendment attempts to bypass this issue by linking its provisions to any trade agreement that,

“gives effect to any or all of the provisions set out in the framework for the future relationship so far as they relate to trade”.

However, this leaves it unclear which treaties would be caught and whether it would remain active long into the future, beyond the conclusion of our future relationship negotiations. The Committee can be reassured that our future trade agreements with the EU are bound to be subject to the provisions of the Constitutional Reform and Governance Act 2010. Furthermore, those agreements will almost certainly require detailed implementing legislation, which means that the arrangements could not come into force without the authorisation of Parliament. No doubt this is a question to which we will return. I hope this reassures the Committee and that noble Lords will withdraw, or not move, their amendments.

Trade Bill

Viscount Younger of Leckie Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 4th February 2019 Lords Chamber

[Lord Lansley]

My Lords, I just want to say a word on this. I will not add much, because the noble Lord, Lord Purvis of Tweed, has illustrated the nature of the issues here very well. I would just emphasise that, if the Government are looking to vary Clause 6 as it came from the other place, it is important for them to do so while recognising the importance of seeking to maintain and maximise our co-operation and partnership on medicines and clinical matters across Europe. There are issues such as European reference networks for rare diseases, which are valuable mechanisms for co-operation; there is work together on clinical trials and the implementation of the clinical trials directive.

As far as the European Medicines Agency is concerned, none of us realistically expects that, if we leave the European Union, we will have mutual recognition of authorisations between the Medicines and Healthcare products Regulatory Agency in this country on the one hand and the EU on the other. Even if we were to offer to recognise European Medicines Agency authorisations in this country, I do not think that will be offered, because the European Union will not contemplate a third country providing what it regards as the equivalent of its own authorisations with its own control of data and jurisdiction under the European Court of Justice. That is not going to happen.

However, from early on in the negotiations it was clear that we should aim, if possible, for the scientific evaluations presently carried out by the Medicines and Healthcare products Regulatory Agency, prior to the authorisation process, to continue to be done by the MHRA. That is not presently anticipated by the European Medicines Agency, and that is one of the reasons why the Dutch, Germans, French and others are gearing up their medicines regulatory authorities to do much more of this work. They recognise that—to give perhaps the maximum illustration—over 40% of the work on the authorisation of medical devices across Europe is done by the MHRA, and an even higher percentage for the more complex and significant medical devices. It is far from the case that this can be readily adopted and delivered in other EU member states. It is in their interests and ours to continue to work together—something like 80% of the total work is in the scientific evaluation rather than in the subsequent authorisation process.

I know Ministers are continuing to think about how we can achieve this level of co-operation, and I hope that, in that spirit, even if Clause 6 does not end up providing this mandatory structure for the negotiations, Ministers will be forthcoming none the less about how we might make progress in the direction that the noble Lord in his amendment is aiming for.

[Viscount Younger of Leckie (Con)]

My Lords, I start by thanking my noble friend Lord Lansley, who has paved the way quite well for some of the remarks I will make on this issue. This amendment, spoken to by the noble Lord, Lord Purvis, raises an important issue which the Government are committed to addressing, and that is our future relationship with the European Medicines Agency.

Medicines regulation is inextricably linked to the UK’s fantastic life sciences sector. The UK has one of the most productive health and life sciences sectors in the world. The sector is critical to the UK’s health and economy, contributing over £70 billion a year and 240,000 jobs across the country.

We have been clear since the referendum result that our overarching aim for medicines and medical device regulation is underpinned by three clear principles: first, that patients should not be disadvantaged; secondly, that innovators should be able to get products to the UK market as quickly and simply as possible; and, thirdly, that the UK should continue to play a leading role in promoting public health. This is why the Government, in their White Paper The Future Relationship between the United Kingdom and the European Union, set out their aim to secure active participation in the EMA. The noble Lord, Lord Purvis, used the word “imperative”, and that is very much noted on this side.

However, the clause binds our hands ahead of negotiations with the EU on our future relationship. We have always been clear that continuing to share our skills and expertise is the best outcome for UK and EU patients. The noble Lord, Lord Purvis, cited part of the political declaration; that declaration underlines the UK and EU’s mutual commitment to working together in the future on medicines regulation, and to negotiating the UK’s ongoing co-operation with the EMA. That particular area was raised by my noble friend Lord Lansley, but I will go slightly further, because the noble Lord, Lord Purvis, picked up on the word “co-operation”. I say again that we want to retain a close working partnership with the EU to ensure that patients continue to have timely access to safe medicines and medical devices. The political declaration explicitly makes allowance for a spectrum of outcomes and commits both the UK and the EU to exploring the UK’s relationship with the EMA.

The Government, as I said earlier, set out their ambitions for the future relationship in the July White Paper, making it clear, again, that we are seeking participation in the EMA. I can provide the Committee with some additional detail, however, some of which has been alluded to by my noble friend Lord Lansley. The UK is seeking an agreement that will allow the UK regulator to be able to conduct technical work, including acting as a “leading authority” for the assessment of medicines, and participating in other activities, such as ongoing safety monitoring and the incoming clinical trials framework.

I hope these brief comments provide enough reassurance to the Committee. Given that continued EMA participation is already a negotiating objective of ours, we do not believe that this amendment is necessary. The Government are already committed to ensuring that, after we leave the EU, UK patients can access new medicines at the same rate as they do now.

[The Duke of Montrose (Con)]

I am most grateful to the Minister for giving way. A case in point that my noble friend Lord Lansley was talking about is not just medicines but vaccines. Apparently, in this country we no longer make any vaccines for human use, but all the European vaccines from all around the world are vetted by the Moredun Research Institute in Edinburgh. It will no longer be able to vet vaccines, and it has been told to destroy all its cultures if a no-deal Brexit goes through.

[Viscount Younger of Leckie]

I very much take note of what my noble friend has said. I have no doubt that that point, and so many others, will be taken into account when these negotiations commence.

I wanted just to clarify one point that the noble Lord, Lord Purvis, raised on the issue of “all necessary steps”, which is engrained in the clause to which his amendment refers. It is a point that the Government are reflecting on, but I absolutely reaffirm our objective of as close a relationship as possible with the EU in this particular subject. I hope the noble Lord will withdraw his amendment on the basis of those remarks.

[Lord Purvis of Tweed]

I am grateful to the Minister for his characteristically thorough response, except that we still have Clause 6 in limbo to some extent. I am not sure how long the Government can reflect on the language of their Bill, which the Government brought to the House without stating whether they intend to bring forward amendments on Report to change it. I think the noble Lord, Lord Lansley, made a very good point: this is a very significant issue that requires a degree of forewarning on what the Government’s intentions will be. I suspect we may just have to wait; we have pressed the Government enough at this stage with regards to getting some clarity on that point. It is frustrating that we still have some question marks that are being raised over the language of the Government’s legislation.

On the second point, I understand what the Minister says. There will not necessarily be any easy answers to this, but my point was that there can well be a marked difference between co-operation with, and participation in, European institutions—I think this is the point the noble Lord, Lord Lansley, was making, and I share his view. The European Union has been clear on that in the past. Indeed, on the previous day of Committee, my noble friend Lord Foster took part in the debate on communications and the regulatory bodies in the European Union for that. More recently, the European Union has changed its position to make it even harder for third countries to participate in the European agencies. Our bodies co-operate with the Food and Drug Administration in the United States. We have co-operation which is very deep, but when it comes to the key elements of whether medicines or vaccines are licensed, whether the research will be accepted on a reciprocal basis, and whether data is shared and can be legally shared between the two regulatory bodies, there are still issues that need to be identified.

It is reassuring to know that it is the Government’s intent, from the White Paper onwards, that we would have active participation, but at the moment it seems as if the political statement trumps that because it is more recent. However, the Government have reissued their position on active participation and, in advance of waiting to see what they bring forward on Report—if, indeed, they do so—I beg leave to withdraw my amendment.

Trade Bill

Viscount Younger of Leckie Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th March 2019 Lords Chamber

Moved by

[Viscount Younger of Leckie]

27: Clause 7, page 5, line 15, leave out subsection (2)

[Viscount Younger of Leckie (Con)]

My Lords, I rise as batsman No. 3 today. This group covers Amendments 27, 28, 29, 30 and 36 to 58. I will speak to Government Amendments 27, 29, 30 and 36 to 58 which are minor, technical amendments. I will then respond to amendment 28 tabled by the noble Lords, Lord Stevenson of Balmacara, and Lord Purvis of Tweed, after they have spoken to their amendment.

To avoid the unnecessary duplication of a provision already in place by virtue of the European Union (Withdrawal) Act, Amendment 27 removes Clause 7(2). Clause 7(2) allows for devolved Administrations to make regulations under section 1(1) or 2(1) of the Trade Bill before exit day provided that those regulations do not come into effect until exit day. This is already provided for by the European Union (Withdrawal) Act, which applies this principle to all Bills passed after the Act in the same Session of Parliament. There will be no change to policy with the removal of Clause 7(2); it merely removes an unnecessary and duplicative provision.

For the Bill to work in the way that is intended, the definition of subordinate legislation must include Acts passed in devolved legislatures as well as in the UK Parliament. This is possible by changing the definition of subordinate legislation from that used in the Interpretation Act 1978 to the more detailed one used in the European Union (Withdrawal) Act. This is the purpose of Amendment 29 which ensures that, where possible, the provisions in the Bill respect the important role of the devolved Administrations.

Turning to Amendments 30 and 36, Clause 8(6) in Part 1 of the Bill sets out a list of definitions of terms found in the Bill, such as “devolved authority”. The amendments will move the definition of domestic law from Schedule 1, paragraph 2(7) to Clause 8(6), where it will sit alongside other definitions that relate to the devolved Administrations. This will make the Bill easier for people to follow.

Turning to Amendments 37 to 43 and 45 to 58, Schedule 1 to the Trade Bill allows joint procedure requirements that derive from outside the Trade Bill still to apply to regulations made under Clauses 1 and 2 of the Bill. By inserting the phrase “acting alone” to appropriate places in Schedules 1 and 2, as Amendments 37 to 43 and 45 to 58 seek to do, we are improving the quality of the legislation by clarifying when the devolved authorities are acting alone as opposed to acting jointly with the UK Government.

Amendment 44 ensures that paragraph 6(4) of Schedule 1 works as intended by applying consultation requirements that would otherwise bind Northern Ireland devolved authorities to regulations made under Clause 1(1) and 2(1). These changes are technical in order to tidy up the Bill, and as such I hope your Lordships will support them.

[Lord Stevenson of Balmacara]

My Lords, it is a test of the abilities of Ministers to be able to breathe life into a list such as that we have just heard. This is a case of drafting amendments beyond the boredom threshold of many people who have to sit through these debates, and I congratulate the noble Viscount on his ability to do that well. I have no objection to the points that he has made and will support them enthusiastically when asked to do so.

In this group, which includes a lot of one-line amendments, is a large amendment dealing with the Sewel convention, which has operated for a number of years in relation to devolved matters in the Assemblies in Scotland, Wales and Northern Ireland—when they meet. It is there because there is concern that the Government have still not bottomed out their arrangements for how all such matters are to be dealt with going forward. While there is no complaint that the convention has not worked well until now, conventions are conventions and there is an argument, at least in principle, that at some point—either now or at some later stage—an attempt should be made to clarify the rules by which it operates and the conditions under which it exists.

I say that particularly because there remains a continuing concern over how the Government attempted to legislate in the withdrawal Bill, in particular on matters being devolved—as they may be under any agreement with the EU or if we crash out—to the UK but for which there was a strongly persuasive case for them going directly to the devolved Administrations. In those circumstances, a great deal of work has been done and a lot of the individual issues have been settled, one way or another. However, a list of matters relating to devolved issues still needs to be resolved so that where they intersect with other geographical locations, there is a workable scheme under which progress can be made.

One issue that arose previously was the extent to which the devolution legislation passed in this House to set up theses bodies could be invoked for issues concerning who has the authority to legislate where a matter is devolved. If a matter is not reserved under the Act, it is devolved, so matters that fall to be devolved must have the consent of the body to which the issue is devolved under the Sewel convention. I am putting this simply; the arrangement is more complex. In the case before us, with trade being such an important issue, we felt that there should be some measure in the Bill to explain exactly the conditions under which the convention would operate and the extent to which it would or would not be concerned. The amendment’s wording is quite clear:

“Regulations made … by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority”,


unless the Ministers consent. It goes on to say that it would normally be within the devolved competences of the devolved authority, to which conditions are attached. That applies to all areas.

That would have been a very simple introduction to a very simple issue on which I would expect the Minister to respond. However, it will not have escaped the House’s attention that only yesterday, a very similar amendment to another Bill—the Healthcare (International Arrangements) Bill—was moved by the noble Baroness, Lady Manzoor, on behalf of the Government. It covered almost exactly the same territory. It was phrased positively, in a way that the amendment before the House today is not, but it covers the same ground. It said:

“Before making regulations … that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


It goes on to explain the conditions under which that would operate. The wording is not identical but I would argue that the sensibilities and principles behind this matter are identical to those of that amendment. Does the Minister therefore recognise that, to the extent to which the Government have already considered this issue and legislated for it, it may be in the Government’s best interests to accept Amendment 28, since to do otherwise might cause difficulty for what has already been agreed to in the healthcare Bill? Alternatively, would he agree to meet me and other noble Lords to discuss this, so that we can come back at Third Reading with wording that is consistent with what will soon be in law via the healthcare Bill and appropriate for the Trade Bill?

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I add my support to Amendment 28. I hope not to repeat too many of the points already made.

The Minister may have seen the letter from Mike Russell, dated 11 March 2019, to which the noble Lord, Lord Purvis, referred. He draws attention to the fact that the Scottish Parliament is not prepared to give its consent to the Trade Bill as presently drafted, which is a matter of some concern. It is not just being obstructive; it is taking a measured position based on Clause 2 of the Scotland Act 2016, to which the noble Lord, Lord Purvis, also referred. In his letter, Mike Russell said, as the Scottish Government has pointed out, that many of the 24 policy areas currently identified as potentially subject to such regulations are highly relevant in terms of future trade deals, for example food and feed safety, animal health and welfare, agriculture, environmental policy, food labelling, procurement and fisheries management. It is vital that the Scottish Government and Parliament should be able to protect and advance Scotland’s interests and approach in these areas. It is concerning that the Bill as drafted does not mention either consent or consultation. I hope that the Minister will feel able to look at this matter more carefully before we reach Third Reading.

I will make two further points. First, the wording of Amendment 28, adopting the formula in the Scotland Act, uses the word “consent”. I recall long arguments, when we were debating the European Union (Withdrawal) Act, about whether the word “consent” should be included in its various provisions involving interaction with the devolved authorities. The matter was resolved, in connection with the frameworks in relation to trade, by using the word “consult” instead of the word “consent”.

Personally, I would argue that we should adopt the forms in the Scotland Act, but the fact that the word “consult” was used in the amendment to the Healthcare (International Arrangements) Bill, to which the noble Lord, Lord Stevenson, referred, might be worth some reflection on the Minister’s part. As the noble Lord pointed out, the formula used in Amendment 15 to that Bill, which was an insertion after Clause 4, was:

“Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.


That does not go as far as the Scottish Government wish, but at least it is a step in the right direction. As that amendment was moved by a Minister to a closely related Bill—it is part of the general package that we are considering, which is all related to our departure from the EU—I hope that the Minister and his Bill team will give careful consideration as to whether, if the Minister is not prepared to accept the formula in Amendment 28, that formula should be adopted instead. The difference between “consent” and “consult” is quite significant—but consultation, at least, would go a substantial way to meeting the concerns of the Scottish Government in these very important areas.

I shall add one further point. I was in the Grand Committee the other day looking at a statutory instrument that had been made by a UK Minister, and it contained a substantial number of amendments to Scottish legislation made by the Scottish Parliament. I asked why that was being done in a UK SI, rather than being dealt with by the Scottish Parliament. When one looked at the description in the back about consultation, one saw that it was defective, because it did not make it clear that the Scottish Government had been consulted. That was an example of a statutory instrument made by a Minister, on which one would have thought that consultation was essential—indeed, during discussions on the withdrawal Bill I was assured that the Sewel convention would be applied—yet the narrative was incomplete. That may have been simply a technical error, but it illustrates how easy it is to overlook the need for consultation, at least, unless that is on the face of the statute. So I warmly support the points made by the two noble Lords in support of the amendment. If the matter is to be taken away, I hope that the Government will come back on Third Reading with something to address this important issue.

[Viscount Younger of Leckie]

My Lords, I thank the noble Lord, Lord Stevenson, for this amendment, and for his scrutiny of the devolution provisions in the Bill throughout its passage. I also thank the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, for his points, which I will address later. Ensuring that the Bill works for the whole of the UK remains a priority for the Government, so I am pleased to inform your Lordships that yesterday the National Assembly for Wales voted in favour of granting consent to the Bill. I ask that this House consider that when weighing the scrutiny of the Bill in the context of the devolution settlements.

The practical purpose of the amendment is that the UK Government should, as a matter of course, seek the agreement of the devolved Administrations prior to legislating in areas of devolved competence. This is not, in principle, an area of contention; rather, the question is whether this should be on the face of the Bill. I reiterate that the UK Government are committed to not normally using the powers in the Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administrations, and certainly not without first consulting them.

We have respected the role of the devolved Administrations through our programme of engagement with them, government amendments in the other place and my renewed commitment today. The Government will maintain this commitment. More broadly, the UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts. UK government officials are working with devolved Administration officials to revise the common frameworks analysis and take into account progress on framework areas since March 2018. The Government anticipate publishing a further iteration of this analysis shortly.

During our debates on this legislation, there have been many areas of agreement between us and noble Lords on the opposite Bench. Indeed, the noble Lord, Lord Stevenson, was correct to say in Committee that the use of the powers in devolved areas is,

“more complicated than can be dealt with within the confines of the Trade Bill.”—[Official Report, 23/1/19; col. 724.]

Additionally, the amendment risks setting a precedent whereby competence for policy-making is defined outside the established devolution settlements. It seeks to go further than the convention already recognised in the most recent Scotland and Wales Acts, and could require the court to make a decision on whether or not we were in normal circumstances. I do not believe it is the intention of this House to introduce new legal uncertainty to our statute book.

The Supreme Court made it clear in the judgment on the Miller case that it does not believe it is appropriate for the courts to police the Sewel convention, as it does not lie within the constitutional remit of the judiciary. By inviting this potential judicial scrutiny, the amendment could obstruct the programme of continuity that the Bill seeks to deliver, as the use of the powers could be substantially delayed, to the detriment of the UK as a whole.

I shall now deal with the point raised by the noble Lord, Lord Stevenson, when he mentioned the Healthcare (International Arrangements) Bill. As he knows, I was not involved with that Bill, but I hope that I can help. The amendment to that Bill requires the Secretary of State only to consult. Amendment 28 involves a consent requirement. Those are very different—and this plays into the point made by the noble and learned Lord, Lord Hope. For reasons that we have set out, the consent requirement would create a legal test for the courts, and therefore uncertainty. The powers in the healthcare Bill are different, too. The benefit of the concurrent powers in the Trade Bill is that they allow for the relevant Administrations to legislate themselves where a matter falls under devolved competence, and also allows Ministers of the Crown to make regulations for the whole UK when that makes sense.

As well as the benefits to the devolved Administrations of the concurrent powers, we have made repeated commitments on the Floor of both Houses always to consult the relevant devolved Administration. To take up the point raised by the noble and learned Lord, Lord Hope, about creating legal uncertainty, although the amendment includes the word “convention” in its title, it uses words that appear designed to turn the convention into a legal test. It uses the words “may not normally”, which appear designed to make that a legal rule justiciable by the courts. This could be a substantial block on the use of the Clause 1 and 2 powers, and could lead to delay through litigation, or, ultimately, to a block on the use of the powers if the court judged the situation to be normal. This could allow a challenger the power to withhold consent to the implementation of part of an agreement, meaning that the UK could not bring it into force until the matter was resolved.

[Lord Purvis of Tweed]

Clearly, I would always defer to the noble and learned Lord, Lord Hope, on these issues, but I had a slight anxiety when I heard the Minister say from the Dispatch Box that UK Ministers would be allowed to make regulations where they considered that that “made sense”. That is not language that we have become accustomed to in devolution practices over the past 20 years. UK Ministers could say almost all the time that it made sense for them to bring forward such regulations, especially in the context of trade agreements that they themselves had negotiated. But that is not the point. The point is that the legislative competences are not those of UK Ministers, but those of other bodes. All we ask is that the practices that have been developed, which have now been adopted in the Scotland Act—it contains language recognising that the Parliament of the United Kingdom “will not normally legislate”—be continued. That is now well established in statute. I cannot see why the Government say that it would cause problems in a separate statute, because it is already in statute.

[Viscount Younger of Leckie]

I listened carefully to what the noble Lord said. He referred to the point I made about making sense, and legislative efficiency after consultation with the devolved Administrations is what we are looking for. So in effect, I believe that we are on the same side of the fence. But given that we are getting into some quite detailed discussions and debates and my job is to give answers, it may be helpful if we go into such detail outside the Chamber with a further meeting. I have not finished yet, but I hope that so far I have given some reassurance to noble Lords.

Returning to my opening point, the vote yesterday in support of a legislative consent Motion by the National Assembly for Wales is a significant endorsement of the Trade Bill, and I am pleased that the UK Government have been able to meet all of the Welsh Government’s requests to improve the Bill. The Assembly’s vote recognises the UK Government’s meaningful efforts in ensuring that the Bill works for the UK. I hope that I have provided sufficient reassurance on the Government’s commitment, and the potential unintended consequences of this amendment. Therefore, I ask the noble Lord not to press Amendment 28.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, this has been a useful little debate and I am grateful to the noble Viscount, Lord Younger, for raising all the points that he did and giving such a full response. But may I check with him that he said—it will be in Hansard—that he would be happy to have further discussions about the issue? I appeal to him and his good sense. Given that we are already in debate with him and his officials on a number of issues, this could with advantage be added to the list. It is not that we have any particular reason to want to bring it back in any aggressive form at Third Reading, but the issues raised are worth further discussion, particularly because the Government have chosen to legislate in the Healthcare (International Arrangements) Bill and that, irrespective of whether or not it has direct read-across to the Trade Bill, will have set a standard. We have to be careful that we are not either missing or exceeding that in a way that would be detrimental to any future discussions on trade.

I am willing not to press this amendment if we can be absolutely clear that there will be further discussions, because this point has not been fully resolved. But I give an undertaking that this is in no sense trying to make things difficult for the Government. It would be worth going a further round to get this right.

[Viscount Younger of Leckie]

As I said, I am very happy to be part of further discussions.

[Lord Stevenson of Balmacara]

A further meeting, principally with those who raised points in this debate, would satisfy us. I do not think that we are far apart on this, but if we can work out exactly what we want said in a way that would advance the chances of getting a better result for all concerned, that would be the right way forward.

--- Later in debate ---

[Lord Fox]

My Lords, we have heard many times about the soft power of education as it reaches out around the world. This is a way of collecting hard data about the economic benefit to this country. I cannot see why the Government would be unable to support it.

[Viscount Younger of Leckie]

My Lords, the Government welcome international students, who make a valuable contribution to the UK economically and culturally. They bring greater diversity to university and college campuses and an international dimension to the experience of all students. They also stimulate demand for courses and add to the UK’s impressive research capacity. In the longer term, they offer the prospect of productive business, political, cultural and research links. Of course, they also bring welcome income to UK universities and our wider economy.

We are pleased that the UK remains a highly attractive destination for international students. UK higher education institutions hosted almost 460,000 EU and non-EU students in 2017-18, the highest number on record. There remains no limit on the number of students who can study here, and there are no plans to introduce one.

In the Higher Education and Research Act, there is provision for a faster and simpler route for high-quality new providers to enter the sector and gain degree-awarding powers. This allows the sector to diversify and strengthen its international offer, providing even better opportunities to students from all over the world.

The Department for Education currently publishes data on the value of UK education exports annually. These statistics cover education exports and transnational activity relating to higher education, further education, schools, English language training and products and services. I am grateful for the comments made by the noble Lord, Lord Fox, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady O’Neill. It is important to look at the statistics, and I will start by giving a view of the ones that we already publish. The latest education exports data publication was dated January 2019. It set out that total education exports and transnational education activity were estimated to be worth almost £20 billion in 2016. International students at higher education institutions contributed £11.9 billion in exports through living expenditure and tuition fees alone that year. This accounts for around 60% of the total value of education exports and activity.

Trade Bill

Viscount Younger of Leckie Excerpts

3rd reading (Hansard): House of Lords
Wednesday 20th March 2019 Lords Chamber

[Lord Wigley (PC)]

My Lords, I too welcome the amendment. I apologise for taking so little part in the Bill’s progress since participating at Second Reading. This intermittent pattern has been due largely to being stretched on Brexit matters across many different committees and calls.

I support the comments of the noble Lord, Lord Purvis, on the devolution situation. The position in Wales is different from that in Scotland because of the different natures of the devolution Acts—no doubt the Minister is well aware of those. However, similar issues can arise, particularly in the contexts of agriculture, procurement and competition law. Those areas are sensitive and there are strong feelings in the devolved regimes on the powers they can exercise. No doubt many other issues will arise.

I do not think that we can answer this matter by strict legislation. The most important thing by far is the attitude of Governments towards dealing with each other. It is important that, when issues arise and are flagged up at this end, something is done early enough to get a constructive response from Cardiff or Edinburgh. Likewise, it is important that the devolved regimes are encouraged to flag up issues that arise, and that there is a mechanism to deal with them before they become polarised and unnecessarily political. To that extent, I believe that most of the work on this will have to be undertaken on a day by day, month by month basis after the legislation comes into force. Having said that, I support the amendment.

[Viscount Younger of Leckie (Con)]

My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for moving Amendment 8 and for our fruitful discussions since Report, together with the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, who is not in his place at the moment. I hope to provide some extra clarity on the interaction between the UK Government and the devolved Administrations.

It might help if I summarise my understanding of the amendment’s purpose. It would require the Government to seek the consent of the devolved Administrations when making regulations under Clauses 1 and 2. As we have said, it is the Government’s intention always to consult and seek the consent of the devolved Administrations when exercising the powers in this Bill in areas of devolved competence. We want to form a trade policy that works for the whole of the UK. However, there are good reasons why we do not want to amend the Trade Bill either to extend the operation of the Sewel convention or to replicate the recent amendment to the healthcare Bill, as proposed by the noble Lord.

Let me just touch on the Healthcare Bill. The noble Lord, Lord Stevenson, suggested during the debate on this issue on Report, on 13 March, that a recent amendment to the Bill strengthened the case for what is being proposed here. However, there is a significant difference, both between the powers in the two Bills and between the texts of the two amendments.

First, the concurrent powers in the Trade Bill allow for devolved Administrations themselves to legislate in areas of devolved competence. As mentioned last week, should the UK Government use the powers of the Trade Bill to legislate for the whole of the UK, it will be for the purposes of legislative efficiency, following consultation with the devolved Administrations. The Healthcare Bill does not provide for this: it does not delegate any powers to devolved Administrations. Introducing consultation requirements in lieu of a power for the devolved Administrations to legislate for themselves is understandable—but this clearly is not the case for the Trade Bill.

Secondly, the amendment to the Healthcare Bill introduced a requirement to consult the devolved Administrations, whereas Amendment 8 would require the UK Government to secure the consent of the relevant devolved Administration before legislating in areas of devolved competence. As is well recognised in your Lordships’ House, to “consult” and to “secure consent” are very different concepts.

I turn to the Scotland and Wales Acts, which already enshrine the Sewel convention in legislation. I am happy to restate this Government’s continued commitment to this convention in relation to all future primary legislation. However, it has been suggested that this amendment would put regulations under the Trade Bill in the same position as Westminster primary legislation under the Scotland and Wales Acts. It must be recognised that those provisions were passed in a very different context and in recognition of an accepted political convention relating to primary legislation. Moreover, as the Supreme Court has recognised, those provisions were carefully worded in a way that demonstrated Parliament’s clear intention that they should not be justiciable.

This amendment, however, goes further by effectively proposing an extension of this convention to apply to secondary legislation. It does so in a way that does not reflect the language of the Scotland and Wales Acts provisions, which would risk making the term “not normally” into a legal test. As I stated on Report, I do not believe that it is the intention of this House to introduce new legal uncertainty to our statute book—especially when that could ultimately obstruct the programme of continuity that this Bill seeks to deliver, to the detriment of the UK as a whole.

I would like to touch now on Section 12 of the EU withdrawal Act and its interplay with the Trade Bill.

[Lord Wigley]

Does the Minister accept that the problem as seen from the devolved regimes is that, very often, consultation does not amount to very much indeed? That is why the word “consent” is very much more powerful. If consultation was something that was driven with the intention of having a meeting of minds, rather than just sending a message down and forgetting about it, there might be a better chance of getting that form of words to be applicable.

[Viscount Younger of Leckie]

The word “consultation” is well known and well respected. I would like to pick up on what the noble Lord said earlier about the fact that there is much interaction, and consultation, going on; and it generally works very well. I would also like to say how well it has worked in respect of Wales. It is a term that is well recognised and works well.

Turning back to Section 12, I am aware of the letter from the Scottish Government Cabinet Secretary, Mike Russell, which noble Lords have referred to in earlier exchanges and which raises a specific concern in the third paragraph about the effect of Section 12 regulations on the Scottish Government’s ability to exercise powers in the Trade Bill. I am disappointed that, unlike the Welsh Government, the Scottish Government have not seen fit to recommend consent to the Trade Bill. I would like to make it clear that any frameworks-related restrictions on the devolved Administrations’ use of the powers apply only if a Section 12 regulation is first in place.

Due to the collaborative and constructive work that is taking place to establish UK common frameworks once we leave the EU, the UK Government have not yet identified a need to bring forward any Section 12 regulations. The Government have committed to work with the devolved Administrations in the preparation of any Section 12 regulations that would maintain existing frameworks. This was set out in the Inter-governmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks, which ensures that those regulations are subject to scrutiny by the devolved legislatures and the UK Parliament.

In addition, I can reassure your Lordships that, were a Section 12 regulation in place that would restrict the power of the devolved Administrations to use Clauses 1 and 2, the Government’s commitment always to consult would remain. As we have repeatedly said, the UK Government remain committed to the principle of not legislating in devolved areas without seeking the agreement of the respective devolved Administrations. The UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts, including the development of common frameworks. As a result of this work, the UK Government and the devolved Administrations recently agreed to this joint statement:

“On the basis of the significant joint progress on future frameworks, and the continued collaboration to ensure the statute book is ready for exit day, the UK Government has concluded that it does not need to bring forward any section 12 regulations at this juncture.


On this basis, the Scottish and Welsh Governments continue to commit to not diverging in ways that would cut across future frameworks, where it has been agreed they are necessary or where discussions continue.


UK Government officials are working with devolved administration officials to revise the Common Frameworks analysis and take into account progress on framework areas since March 2018. We anticipate publishing a further iteration of this analysis shortly”.


To conclude, I hope that I have demonstrated that the amendment is unnecessary. The Government are committed to not normally using the powers in the Trade Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administration—and certainly not without first consulting them. I believe that this is proportionate and appropriate to the powers as they currently stand, which have received consent from the National Assembly for Wales, as I said earlier. If passed, this amendment would depart significantly from this. I therefore ask that Amendment 8 be withdrawn.

[Lord Stevenson of Balmacara]

I am very grateful to the Minister for his words and for being so explicit about the conditions under which powers can be exercised and how they would be affected, both by the current legislative framework and by Amendment 8 if it were inserted into the Bill. Having said that, however, your Lordships’ House has heard from the noble Lords, Lord Purvis and Lord Wigley, that these are matters of substantial importance in general terms, and particularly when viewed from the perspective of the devolved Administrations.

I hope that behind the words issued today there is a real and deep commitment across the whole of government to make sure that the lessons from the unfortunate experiences in the withdrawal Bill, now Act, and not repeated in this legislation—but obviously touching on it—will be learned in a way that will mean that we can make progress together. In that context, the Government getting their act together and issuing another statement about these matters as early as possible would be a considerable help to all concerned.

However, the point is well made that there is a well thought-through argument in the Bill, which bears exactly on the issues that the amendment sought to arrange. The commitment given openly by the Minister at the Dispatch Box, confirming that it is the Government’s intention to ensure that full, meaningful consultation should be the mode adopted and that there would always be a requirement to obtain consent where possible from the devolved Administrations, makes it very clear that the amendment is not required. On that basis, I beg leave to withdraw it.