Amendment 6

Trade Bill - Report (1st Day) – in the House of Lords at 3:00 pm on 7th December 2020.

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Lord Purvis of Tweed:

Moved by Lord Purvis of Tweed

6: After Clause 2, insert the following new Clause—“Parliamentary approval of trade agreements(1) Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement.(2) If a decision has been made by the Secretary of State to commence negotiations towards a free trade agreement, a statement must be made to both Houses of Parliament.(3) Negotiations for that trade agreement may not proceed until the Secretary of State has laid draft negotiating objectives in respect of that agreement before Parliament, and a motion endorsing draft negotiating objectives has been approved by a resolution of each House of Parliament.(4) Prior to the draft negotiating objectives being laid, the Secretary of State must—(a) consult each devolved authority on the content of the draft negotiating objectives, and(b) produce a sustainability impact assessment including, but not limited to, an assessment of the impact of the proposed negotiating objectives on human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(5) A sustainability impact assessment under subsection (4)(b) must include—(a) a statement on how the proposed trade agreement will advance the meeting of the Sustainable Development Goals; and(b) a plan to maintain UK levels of statutory protection on the protection of human, animal or plant life or health, animal welfare, environmental protection, human rights and equalities, and employment and labour.(6) The Secretary of State must inform both Houses of Parliament, and any Select Committee charged by the relevant House with scrutinising trade negotiations in a manner and to an extent agreed with the Committee, of developments in the negotiations, but this does not affect the power of the Secretary of State to conduct negotiations as the Secretary of State considers appropriate.(7) For the purposes of subsection (6), “developments” means—(a) a pause in negotiations;(b) an ending of negotiations;(c) the conclusion of a negotiated round of discussions;(d) the decision to agree in principle an agreement; or(e) other necessary aspects of the negotiations of which the Secretary of State considers it necessary to inform Parliament.(8) The United Kingdom may not become a signatory to a free trade agreement to which this section applies unless a draft of the agreement in the terms in which it is to be presented for signature by parties to the agreement has been laid before, and approved by, a resolution of each House of Parliament.(9) Before a Minister of the Crown moves a resolution to approve the text of a proposed free trade agreement in either House of Parliament, the Secretary of State must— (a) consult each devolved authority on the text of the proposed agreement, and(b) lay before Parliament an independent impact assessment of the agreement including, but not limited to, the requirements in subsection (4).(10) In this section—“devolved authority” has the meaning given in section 4(1) of this Act;“free trade agreement” means any agreement which is—(a) within the definition given in section 4(1) of this Act, and(b) an agreement between the United Kingdom and one or more partners that includes components that facilitate the trade of goods, services or intellectual property;“UK levels of statutory protection” means levels of protection provided for by or under any—(a) primary legislation,(b) subordinate legislation, or(c) retained direct EU legislation,which has effect in the United Kingdom, or the relevant part of the United Kingdom, on the date on which the sustainability impact assessment is produced.”

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade)

I rise to move Amendment 6, and I look forward to hearing the noble Lord, Lord Lansley, on Amendment 12, because these amendments concern an issue that has been a focus of Committee and a major part of today’s debate on Report. I listened carefully to the Minister’s response to the debates we had in Committee on scrutiny of agreements. There seemed to be some areas of agreement across the House, and I hope I am accurate in outlining what I consider them to be: it is the Government’s prerogative to make a decision to open, conduct and conclude negotiations; the Government believe the scrutiny powers of the European Parliament and the role of British MPs in agreements made by the European Union were effective; Parliament needed a greater role here at home; the Constitutional Reform and Governance Act process is insufficient in itself to allow for proper scrutiny and accountability. This last point has been agreed by everybody, including the Government, who have been at pains to say that they acted “above and beyond” the requirements of CRaG on the Japan EPA—in fact, the noble Viscount referred to that in an earlier group. It is fair to suggest that any Government who go above and beyond the legislative requirements they have to have regard to might point to those requirements being insufficient.

Outside groups as varied as the National Farmers’ Union and the BMA have been in touch with noble Lords asking them to support Amendment 6, and I am grateful for their support. It shows the breadth of interest in updating and improving parliamentary accountability for agreements that go far beyond tariffs and quotas, as we have stated repeatedly during the passage of the Bill.

My amendment—I am grateful for the support of the noble Lords, Lord Stevenson of Balmacara and Lord Curry of Kirkharle, and the right reverend Prelate the Bishop of St Albans, who all take a close interest in these issues—has been adjusted since Committee to take into consideration the remarks of the Minister and colleagues from across the House. The amendment does not restrict the Government’s use of the royal prerogative to commence, conduct and conclude trade agreements. The Government have indicated that this is a red line for them, and that would be fully acknowledged, in statute, in this amendment.

In proposed new subsection (2), a statutory underpinning would be created to the commitment the Government have themselves said they will carry out for future trade agreements, which is that they will inform both Houses of Parliament that they are commencing negotiations. That would now be a requirement.

Proposed new subsection (3) would put the United Kingdom on a par with the US and the EU, which provide for the endorsement of negotiating objectives. There is little doubt now that the European negotiations and the Office of the US Trade Representative believe this mechanism strengthens their hands in conducting negotiations rather than weakens them. I referred to the US legislation from Congress that provides, in statute, a framework for how the US TRO conducts negotiations.

Proposed new subsections (4) and (5) outline in simple terms that the Government must consult devolved authorities and be clear in the negotiating objectives about any impact on, for example, animal welfare, environmental protection, human rights and equalities and employment and labour, how they advance sustainable development goals and how they maintain UK levels of statutory protection on standards.

Proposed new subsections (6) and (7) reflect that there has been some progress from the Government, in that they have moved to develop further relationships with the respective committees in the Commons and here in this House. Discussions of a proposed protocol on those relationships are ongoing, and I welcome them. On the Written Ministerial Statement the Minister sent in advance of this debate, which I am grateful for seeing and on which I have reflected, I say to the Minister that it is not a substitute for other provisions, even though it is welcome that the Government have moved. I studied carefully the WMS, as I told the Minister I would. It repeats what the Minister said in Committee and outlines a little more about where the Government will provide information in a public domain. It also states a little more about the relationships with the committees. The subsections in this amendment would put such commitments on a statutory footing in addition to requiring the Government to inform the committees of developments in negotiations. This is not a considerable move from what the Government have indicated their intention is going forward. Proposed new subsection (6) makes clear that nothing in this will

“affect the power of the Secretary of State to conduct negotiations as the Secretary of State considers appropriate”.

Finally, proposed new subsection (9) requires an independent impact assessment of the agreement and consultation with each devolved authority on the text of the proposed agreement.

My final remarks will be on the update of the existing veto powers, as they have been termed, in the Constitutional Reform and Governance Act. I say “update” because in Committee, it was broadly accepted that the House of Commons currently has some form of veto power in the 2010 Act, which itself updated the parliamentary convention and the Ponsonby rule. The noble Baroness, Lady Noakes, referenced this clearly. I referenced how Jack Straw, in introducing the legislation, stated to the House of Commons that the veto power would be put on a statutory footing. Whether or not we wish to look at the semantics of what a veto is, the same power for a two-clause treaty with little consequence and a trade treaty of 25,000 pages with significant consequences, notably for domestic policy, clearly draws to attention the fact that we should consider whether that same power is relevant for both types of treaties. We now know, by definition, that we now have deep and comprehensive trade agreements that go far beyond tariffs and quotas.

The Minister would accept that during the existence of the European Union, major reforms have been taken of the scrutiny powers of the European Parliament to update its powers. I am seeking an update of our powers.

In response to a previous Written Parliamentary Question, the Government published a glossy diagram showing how we compare with other comparable countries in a statement of parliamentary transparency and scrutiny offering some international comparison snapshots. That covered the UK, Canada, New Zealand, Australia and Japan—so the UK, three Commonwealth countries and Japan. The Minister said that we should not look to the European Union as a basis for comparison, because that is a multi-nation entity, and we have a uniquely British approach.

However, in today’s Written Ministerial Statement, the Minister indicates that we should base it on a Westminster-style system—effectively a Commonwealth style. Can the Minister say why the Department for International Trade, in citing three Commonwealth countries, have chosen three predominantly white, northern hemisphere countries? Why not include, for example, South Africa? Our trade with South Africa is double that of our trade with New Zealand, and it affords its Parliament a full vote on the deal. Why not use South Africa as an example, rather than Australia and New Zealand?

With regards to Japan, the Written Ministerial Statement was very interesting, because I can only suggest that it was an omission that the Government did not mention that Japan has a final parliamentary vote on the deal. In fact, as required by law, on 24 November the House of Representatives in Japan voted to give its agreement to the Japan-UK EPA. There is no reference to that in anything that the Government have published, so the Government pick and choose their examples.

The House is now being asked to consider an updating of the CRaG power. The CRaG power provides, in effect, a degree of limbo: the House of Commons can place a trade agreement into a period of limbo, if it is not fit for purpose, but the Government can then ratify it anyway. The fact that Parliament cannot conclude that the agreement is not right and should be renegotiated or reopened—or that certain aspects should be done again—but only put it into a limbo that the Government can override is not sufficient for the 21st century.

I hope that there will be continuing cross-party consensus, and that the Government will consider that I have moved, in the drafting of this amendment, to recognise the Government’s stated position on the use of prerogative powers. What we are seeking is a degree of consensus that by updating and making clearer the power of Parliament over these agreements at the beginning of the process, during the codifying and at the end of it, we will have a trade policy that is fit for purpose for the 21st century.

During this process, I have got to know the Minister as an honourable man, but I suspect that he may not have a damascene conversion at the Dispatch Box over this matter. I give notice that, if that does not happen, I intend to seek the opinion of the House. I beg to move.

Photo of Lord Lansley Lord Lansley Conservative 3:15 pm, 7th December 2020

My Lords, I am glad to follow the noble Lord, Lord Purvis of Tweed, who set out the arguments for Amendment 6 with his customary clarity and precision, for which the House will be most grateful. In large measure, I agree that we have managed to secure quite a degree of consensus on many of these issues, and it is useful now, on Report, to see to what extent we want to put statutory backing behind that consensus. We have come to the right place at the right time.

I will in due course refer to Amendment 12, which is in my name, but I shall start with Amendment 6. Both amendments are concerned with the processes by which international trade agreements are scrutinised and approved by Parliament. I emphasise to those worried about the wider aspects of treaty making that this is about international trade agreements; we are not seeking to go beyond the scope of this Bill and impact on the Government’s treaty-making powers in general.

Amendments 6 and 12 seek to achieve different purposes. Amendment 6 would require prior approval, by each House of Parliament, of the draft negotiating objectives before the Government could proceed with negotiations. It also places a number of statutory obligations on the Government to report developments to Parliament, and it would require Parliament to approve a draft agreement before it is signed. I emphasise signed—not, in this case, ratified. In each of those three respects, Amendment 6 marks a significant change in the extent to which Parliament is not only engaged in, but to some extent potentially able to control, the process of making a free trade agreement. I say to the noble Lord, Lord Purvis of Tweed, that despite the assertion in the first subsection of his amendment that it would not restrict the prerogative power, it would in reality do so—by placing statutory limitations on the exercise of the prerogative power to proceed with negotiations.

Secondly, I share the view of the Constitution Committee of this House, which said in April 2019:

“We do not believe that Parliament should be required to endorse the Government’s mandate prior to commencing treaty negotiations.”

In that regard, I cannot support Amendment 6, because subsection (3) makes it very clear that parliamentary approval for such negotiating objectives is required.

However, I agree with the noble Lord, Lord Purvis of Tweed, that there is a degree of consensus, and I subscribe to much of what is implied in Amendment 6: that the Government should seek the views of Parliament, as well as conduct a public and stakeholder consultation, when setting negotiating objectives. Parliament should be directly involved in that process, and the Government should provide updates to Parliament when significant developments occur during negotiations. Speaking as a member of the EU International Agreements Sub-Committee, I should say that our experience over recent months has been that the Minister and colleagues in his department have engaged with us substantively and constructively in the way that we would wish.

Secondly, the text of the Written Ministerial Statement, which the Minister was kind enough to send me last night, gives some reassurance as to the way in which Ministers intend to engage in future. It does not extend the nature of that engagement or change its statutory force, but to some extent it helps to answer the question that we asked repeatedly, at Second Reading and in Committee, about the extent to which the Government reiterate what was in the Command Paper back in February 2019. I hope, therefore, that my noble friend the Minister, in not only laying the WMS but responding to this debate, will continue to reiterate the Government’s full intentions in those respects.

That brings me to Amendment 12, which is in my name. This does not seek to restrict the Government’s right to initiate and conduct international trade agreements. It is focused only on the procedures by which Parliament is able, under the Constitutional Reform and Governance Act—CRaG—to approve an agreement before ratification. Amendment 12 would strengthen the CRaG processes in relation to international trade agreements in three respects.

First, it would require Ministers to publish, with their agreement or before it, an analysis of how an agreement would need to be implemented into domestic legislation. As we have learnt repeatedly during debates on this Bill, Parliament’s principal constraint over the Government’s treaty-making power occurs when it requires changes to domestic legislation. Parliament has control over that. For example, there is no merit in a Government agreeing a treaty offering access to the UK market for a product that it would be unlawful to sell in this country, when they know that Parliament would not agree to change the law. We need to know if an agreement would require changes to domestic legislation, and that should be a key issue in deciding whether Parliament will approve ratification. Ministers should not ratify an agreement that Parliament would not implement.

That brings me to my second point. Amendment 12 would require that ratification of an international trade agreement should not take place before the identified changes to domestic legislation had been enacted, should they require primary legislation, or laid if in the form of regulations. I understand that this is now a convention, although not a formal one, but it should be a statutory requirement.

The third element is also about giving statutory force to a convention: Ministers would extend the 21-day period until any debate sought by a committee in either House had taken place. Ministers say, as they did in Committee, that they would endeavour to ensure that parliamentary time is found. However, if it is not, Ministers should have to extend the time under Section 21 of CRaG.

As I mentioned, this does not apply to all treaties but only to international trade agreements. It is also important to remember that it is not open to Ministers to say, “But this constrains us, because we may have to proceed for reasons of public policy and timing”; there will remain a power for Ministers to ratify a treaty as an exceptional case under Section 22 of CRaG, which enables Ministers—with a Statement to Parliament—to disapply Section 20. The ratification process can be dispensed with by Ministers in exceptional circumstances.

I ask my noble friend to accept Amendment 12, which gives statutory backing to what we regard as best practice. I suspect he may say that Ministers do not disagree that they would behave in this way and therefore we do not need the law to change for it to happen, but I am afraid it is a simple truth that conventions persist until they are dispensed with by a Government. It is clear that CRaG has a proper statutory mechanism for Ministers not to use its process for approval before ratification, but they should do so and use CRaG’s statutory proceeding for this purpose.

I do not regard Amendments 6 and 12 as mutually exclusive. I agree with a lot in Amendment 6, and I hope that those who support it will go on to support Amendment 12 so that the parliamentary approval process under CRaG is strengthened, as well as the processes by which Parliament is engaged in negotiating objectives during the course of negotiations.

I therefore give notice that, when Amendment 12 is reached, I wish to move it formally and, if necessary, test the opinion of the House.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop 3:30 pm, 7th December 2020

My Lords, I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, and the revision he has made as he has engaged with the Government. I am grateful for his very clear exposition and will be concise in my support.

Modern trade agreements affect huge swathes of public policy, including consumer and workers’ rights, environmental legislation, food standards, health, public services and international development. MPs, who represent constituencies and work with a variety of stakeholders, deserve the right to assess the consequences of an agreement, as does your Lordships’ House. It has been argued that Brexit is about the UK taking back power, but I fear the Government have perhaps not moved past the 2016 divide and view Parliament as a body waiting for a chance to take us back into the single market and intending to scupper any agreement. That is not the case. Colleagues only want the best for their constituencies and our nation. Any suggestion that the Government may be ruling through fiat will inevitably produce poorer outcomes.

What this amendment proposes is far from radical. As has already been alluded to, we are currently outliers on parliamentary scrutiny of trade deals. The UK lags behind on transparency and accountability compared to the US, the EU and Japan, among others. These are fair and reasonable measures that will protect the interests of local industries across the UK; this amendment will allow us to strike deals that benefit the entire economy. I hope that noble Lords will support Amendment 6.

Photo of Lord Curry of Kirkharle Lord Curry of Kirkharle Crossbench

My Lords, it is a privilege to add my name to Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, which he presented so articulately. This is a critically important Bill and I am concerned that, as with other Bills associated with leaving the European Union, we do not have much time. This new chapter in our history gives us a unique opportunity to make sure that we adopt best practice and put in place appropriate conditions and processes that reposition the UK as a global leading influence. I said during the debate on the Agriculture Bill that we should be ambitious and set the bar at a level that demonstrates our commitment to deliver on issues of deep concern. We will debate some of these later today.

The Trade Bill is an opportunity to make a statement about our intentions and ambitions as a nation. This principle also applies to the scrutiny process we put in place as a democracy to match the best of them, whether that of our former partners in the EU, the US or, as has been mentioned, Japan. We need to ensure that we have a transparent and robust process and that Parliament has the opportunity to be consulted and to debate the purpose, intention and outcome of trade deals. Government should see this amendment not as an attempt to slow down or thwart the negotiating process but as a helpful and positive contribution to give Ministers confidence in their negotiations. If this amendment is accepted, they will have the reassurance of having the backing and support of both Houses of Parliament. I hope that the Minister will accept this amendment.

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, I am delighted to support Amendment 6 in the name of the noble Lord, Lord Purvis, and to follow the comments of the noble Lord, Lord Curry of Kirkharle, with whom I largely agree on this matter and on many similar matters we have debated in recent weeks.

The House is indebted to the noble Lord, Lord Purvis, for finding a way around the difficulties which were raised against amendments in these areas in Committee and for overcoming the hurdle imposed by the prerogative considerations relating to trade deals. I cannot agree with the reservations of the noble Lord, Lord Lansley, on this dimension. His Amendment 12 could have an application for devolved Parliaments, for reasons I will qualify, but I recognise the general reasons he has put forward and will support him if he presses his amendment to a vote in due course.

As noble Lords might well anticipate, I speak from the viewpoint of the devolved Governments and Parliaments. In the context of Wales, in Committee we addressed several of the issues which might arise in the negotiation of free trade agreements. In Amendment 6, particularly subsection (9) of its proposed new clause, the obvious issue is whether the implications of free trade agreements could have an adverse impact on the economies of Wales, Scotland or Northern Ireland. The need for these devolved Governments to be drawn in at an early stage is twofold.

First, it is to enable them to alert the UK Government to any negative impact they might not have fully taken on board, not least negative effects on, say, farming, environmental dimensions or food safety considerations, which conflict with the devolved Governments’ policies on such devolved matters. Secondly, the beneficial provision of the proposed new clause in this amendment is to enable the devolved authorities to flag any special dimension that might help the devolved nations capitalise on new opportunities arising from trade negotiations, which would be beneficial for them and, possibly, the people of England.

I realise that trade treaties lie outside the ability of Parliament to amend as they progress, and that the devolved Governments will also have to work within parallel constraints. It is for another occasion for us to debate that principle, and I suggest that there are two sides to that argument. There can, however, be no doubt that the devolved Parliaments should have just as strong a voice on the impact of trade deals on matters within their competence as Westminster does on issues that impact policies that affect England only.

I would go further than this amendment provides, as we have in other legislation before Parliament, by requiring that, if the devolved Governments are not agreeable to the steps taken by the UK Government, there should be a requirement for ministerial explanation and a cooling-off period. That, however, is not before us today.

I have one last point. If Westminster is implacably opposed to the devolved Governments having their say in these matters, it will certainly only hasten the day when these Parliaments seek the powers to make international treaties for themselves to protect the interests of their people. Is that what noble Lords really want? I urge all sides to support this reasonable amendment and for the Government to accept it.

Photo of Lord Goldsmith Lord Goldsmith Chair, International Agreements Committee, Chair, International Agreements Committee

My Lords, I am happy to follow the noble Lord, Lord Wigley, and his underlining of the importance to be attached to the views of the devolved Administrations when dealing with trade agreements. I will speak to Amendments 6 and 12, on parliamentary scrutiny, with the experience I have gained as chair of your Lordships’ EU International Agreements Sub-Committee, but not on its behalf, save to the extent that I draw on reports already made by the committee. In any event, members of the committee are free to give their own views, and I note that some, including the noble Lord, Lord Lansley, are speaking in this debate.

There are two points I want to deal with. The first is to comment on the commitments made today by the Minister in the Written Ministerial Statement, to which attention has already been paid. I thank him for sending me a copy of that and I fully underline, support and agree with the noble Lord, Lord Lansley, that the Minister has been courteous, co-operative and helpful, so far, in his engagement with the committee on the trade agreements he is responsible for dealing with.

I welcome that the Government have put the commitments in the Written Ministerial Statement on the record today, and I look forward to hearing them repeated in this debate and to discussing and developing the detail to ensure that Parliament is able to scrutinise all future UK trade agreements meaningfully. As the noble Lord, Lord Lansley, has rightly underlined, these amendments deal with trade agreements only and not other international agreements. The committee that I chair is involved in those other agreements. The UK will be making many important new trade agreements, which can be just as crucial as the laws we make in Parliament. I will return to that point. Therefore, Parliament’s ability to scrutinise these agreements comprehensively will be of great importance.

I therefore commend the Government for their commitment to work with the International Trade Committee and the EU International Agreements Sub-Committee to ensure that we are briefed throughout the negotiations and have access to treaty texts and other related documents, to the extent necessary, on a confidential basis and at a reasonable time, before the start of the short 21-day scrutiny period set out in CRaG. This approach was introduced for the UK-Japan trade agreement, but will be particularly important for the upcoming US, Australia and New Zealand agreements, for which, unlike the Japan agreement, there will be no underlying EU agreements to refer to and make a comparison with.

Effective scrutiny, however, also requires that those who are affected by trade agreements, and experts, have the chance to comment on the consequences of any agreement. While “extensive stakeholder engagement”—I quote from the Government—on trade negotiations by the Government is welcome, it is imperative that specified stakeholders and experts also have early enough sight of the agreements to enable them to form a view and to feed into parliamentary scrutiny of the agreements. Again, this will be particularly relevant where there is no underlying EU agreement standing as a comparator and baseline.

The Written Ministerial Statement broadly reflects commitments previously made by the Government, notably in the February 2019 Command Paper to which attention has already been paid. But the Command Paper appears to contain a stronger commitment to the parliamentary scrutiny of negotiating objectives, stating that:

“At the start of negotiations the Government will publish its Outline Approach which, as described above, will include our negotiating objectives and be accompanied by a scoping assessment which will be informed by economic modelling, setting out the potential economic impacts of any agreement.”

Then there is this sentence:

“We will ensure that Parliament has a role in scrutinising these documents so that we can take its views into account before commencing negotiations.”

This last sentence is absent from the WMS and, in my capacity as chair of the EU International Agreements Sub-Committee, I would like to discuss with the Government how this commitment could be reinstated and the scrutiny of negotiating objectives strengthened.

I have previously referred the House to the statement by the great constitutionalist Walter Bagehot that:

“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”

I anticipate that, when the Minister replies, he will make some reference to Crown prerogative. In the Miller cases, the Supreme Court considered the relationship between Parliament and the Executive. In the Prorogation case, Miller No. 2, the court reviewed a number of cases where it had intervened to stop misuse of prerogative powers and considered the relationship with the principle of parliamentary scrutiny. It noted that

“the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.”

As Lord Browne-Wilkinson said in the Fire Brigade Unions case, at page 552,

“The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.”

I respectfully suggest that one should be wary of attributing too much sanctity to the position of Crown prerogative in today’s day and age. The question one should ask, when looking at the modest rights provided to Parliament under the CRaG Act, is whether they offer sufficient protection to Parliament. It might be argued that, while there may be few problems with a simple, straightforward agreement, where the answer as to whether Parliament consents is a binary yes or no, the answer should be different for complex trade agreements which may affect many facets of day-to-day life in the UK. In particular, the inability of Parliament to play a role until after an agreement has been signed is problematic, since it has no ability to press for its priorities to be included within the negotiating mandate or to amend the agreement once signed.

For that reason, Amendment 6, which seeks a greater role for Parliament, particularly in the discussion and determination of negotiating objectives, needs to be considered carefully. The noble Lord, Lord Purvis of Tweed, has clearly explained the purpose behind this amendment. It would give a greater role to Parliament in setting the negotiating objectives—not conducting the negotiations. That is difficult enough for a single body, such as the Cabinet of the country, but there is much to be said for setting the negotiating objectives. I therefore have much sympathy with this. As we noted, when we get to an agreement to be scrutinised by our committee or our fellow committee in the House of Commons, it comes with a take-it-or-leave-it question. For many, the answer is that it is better to have an agreement than not, but that does not mean it would not have been a good idea to have an opportunity to consider the negotiating objectives when they could have influenced the course of the negotiations.

As for Amendment 12, the noble Lord, Lord Lansley, who sits on the committee with me, has explained fully and, in my opinion, convincingly why his amendment would be valuable. It is of course much better to have commitments on the statute book than to have to depend upon oral commitments, so I agree with him about this amendment and have nothing to add in support of it.

Finally, I recognise that the process of scrutiny will be, to some extent, a partnership between government and Parliament. As I have said, I fully acknowledge the co-operative approach taken by the Minister and his colleagues in the department. As for practices, we will continue to look to improve those and I look forward, as I have said, to the further discussions envisaged by the Written Ministerial Statement to which I referred at the beginning of my remarks.

Photo of Baroness Hayman Baroness Hayman Crossbench 3:45 pm, 7th December 2020

My Lords, I declare my interests as set out in the register.

I rise to support Amendment 6 in the name of the noble Lord, Lord Purvis. I do so for two reasons. First, I believe that it provides a robust framework for the appropriate scrutiny of international trade agreements. The CRaG arrangements are not satisfactory. It is important that both civil society and Parliament have opportunities at the right time to scrutinise what is going through and what is being negotiated. I hope that the changes that have been made since we discussed these issues in Committee will convince the Government that they can agree to this amendment. I support it not just on the principle of parliamentary scrutiny but because the amendment sets out the areas to be covered in both the sustainability impact assessment in subsection (4) and the independent assessment in subsection (9).

In his contribution, the right reverend Prelate the Bishop of St Albans reminded us that trade agreements cover a huge swathe of public policy. As was suggested during earlier stages of the Bill, there is a temptation to consider that there is a simple economic impact that is the criterion by which we judge trade agreements. I do not believe that that is sustainable. We run the risk of importing into this country goods and services that diminish our stated—and, indeed, our statutory—responsibilities in areas such as climate change and environmental protection.

Equally, we run the risk of losing opportunities in the huge green economy that is coming. We have seen that the Government recognise this. There have been some welcome recent developments, such as the Prime Minister’s 10-point plan and our raised commitments on climate change and emissions, but it is really important that we go from these high-level aspirations to ensuring that we implement and integrate these commitments—particularly on the environment and climate change—into policy and legislation. That is not some soft, optimistic, rose-coloured view of the world; indeed, the Prime Minister himself said:

“Green and growth can go hand-in-hand.”

If that is so, we must look at what trade agreements we implement and how they fit in with our responsibilities and aspirations.

In Committee, I was critical of the fact that there was no mention anywhere in the Bill of the environment and climate change. I ought to pay tribute to the Minister and the Government for making clear in the Written Ministerial Statement and accepting the argument that a wide swathe of policies are affected by trade deals, saying that, when they publish the proposed independently verified impact assessment, it will cover the economic and environmental impacts of the deal. As I understand it, the legal advice is that “environmental” would cover climate change—I am delighted to see the Minister nodding on that—so I hope that we can move from that progress, which I very much welcome and am grateful for, to accepting this amendment and making this a statutory requirement.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, I speak in support of Amendment 6 in the name of my noble friend Lord Purvis of Tweed. I will also refer briefly to Amendment 12 in the name of the noble Lord, Lord Lansley.

I served on the Joint Committee that examined the draft legislation that eventually emerged as the Constitutional Reform and Governance Act 2010—usually referred to as CRaG, as it has been during the debates on this Bill. On that committee, we were quite clear that we sought to correct the previous anomaly, which enabled the Government of the day to push through very significant international treaties with minimal or non-existent parliamentary scrutiny. There was a great deal of pressure for extensive ratification rights for both Houses, not least from Conservative colleagues who were, of course, in opposition then. However, we eventually resolved—for the sake of unanimity on the committee—on a minimalist compromise. Part 2 of CRaG therefore provided only for both Houses to have a statutory right to scrutinise treaties, with the Commons given a theoretical power to delay ratification. Under that Act, neither House had an obligation to debate the terms of a proposed treaty, let alone vote on it, but both could seek assurances and explanations from the appropriate Minister before consenting to ratification.

It is important to remind your Lordships that, in 2010, we were all in a totally different political and diplomatic environment. The United Kingdom was involved—and bringing extensive experience to bear—in combined treaty negotiations with our EU partners. However, our Government, and therefore our Parliament, were not engaged in the intricate details and the much higher level of trade discussions that now face us, with unprecedented complexity and significance for the future of our nation. In its report from April 2019, Parliamentary Scrutiny of Treaties, the Constitution Committee of your Lordships’ House put the challenge very well, saying that

“the provisions of the Constitutional Reform and Governance Act 2010 were enacted in a time where leaving the EU had not been seriously contemplated.”

This was its primary conclusion:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed.”

That has obviously been repeated often this afternoon. I am sure that all members of that Joint Committee would join with me in accepting the wisdom of that contemporary view.

Moreover, it was endorsed by the EU Committee in its June 2019 report, Scrutiny of International Agreements: Lessons Learned, which stated:

“We therefore agree with the Constitution Committee that the CRAG Act is poorly designed to facilitate parliamentary scrutiny of treaties.”

In its following report, Treaty Scrutiny: Working Practices—dated July 2020—the committee went on to warn that cosmetic changes, with no statutory backing, would be unlikely to be sufficient. It said:

“If we cannot make treaty scrutiny work within the current framework, legislative change may prove the only means to ensure adequate scrutiny of international agreements.”

Ministerial Statements are not the same thing. Therefore, the first justification for my noble friend’s amendment—now supported by distinguished Members from many parts of the House—is that it carefully and comprehensively spells out the essential elements for detailed parliamentary scrutiny for all new international trade agreements. As my noble friend Lord Purvis stated earlier, in essence, this amendment updates CRaG to meet the dramatically different requirements of Brexit and establishes a critical, crucial constitutional principle.

In the debate on the committee report in your Lordships’ House, my noble friend Lady Bowles of Berkhamsted, drawing on her experience in EU negotiations, commented:

“The Government’s approach is overly biased towards maximising their secretive freedom, believing that that always enables playing their best hand. That is not my experience. The Government can be in a stronger negotiating position if Parliament is on their side on the journey.”—[Official Report, 7/9/20; col. GC 130.]

That view has been reiterated this afternoon.

The second, very substantial justification for this amendment relates to the peculiarly significant scope of this Bill. First, it is a subject of unique importance to our fellow citizens. The trade it deals with could impact not just on the concerns of food producers and processors but of everybody who eats—you cannot get more universal than that. We will come back to these concerns when we consider the later clauses and amendments on the Trade and Agriculture Commission.

For now, we need only register the emphatic support for Amendment 6 from the farmers’ unions, also referred to earlier. When I was first elected, Conservative candidates and MPs were much more respectful of the views of the farming community and of the NFU than they appear to be now, but I trust that Ministers do not completely ignore their advice. In its excellent memorandum for this debate, the NFU is unequivocal in endorsing Amendment 6:

“Securing the backing of MPs and Peers for these deals through votes in Parliament not only improves democratic accountability for UK trade policy, but also strengthens the hand of negotiators in establishing red lines and legitimately stating what will and will not be negotiable if a deal is to be secured.”

Its support for Amendment 6 is summarised as follows:

“New and clear arrangements that improve Parliamentary oversight and democratic accountability are critical as we ‘take back control’ of our independent trade policy.”

It would be a sad day when a Conservative Government refused to listen to the NFU.

Secondly, the Bill strays into very controversial territory in its challenges to the devolution settlements. As other Members have emphasised at all stages of the Bill, the dangers could not be more dire. In the Committee debate on the Bill on 8 October, my noble friend Lord Bruce of Bennachie summarised the serious concerns expressed from all parts of the House:

“Far-reaching decisions under the Agriculture Bill, the Trade Bill and the forthcoming Internal Market Bill put the devolution settlements and the integrity of the United Kingdom under immense strain … Ministerial insensitivity and indifference are, frankly, turbocharging nationalism and separatism.”—[Official Report, 8/10/20; cols. GC 220-22.]

I hope that the Minister responding to this debate will accept the strength of concern on this issue and the need for the amendment to address it.

Finally, I turn to Amendment 12, tabled by the noble Lord, Lord Lansley, which has self-evident merit. It was always a weakness of the very limited procedure set out in CRaG that the timing and sequence of any parliamentary scrutiny could not guarantee a coherent process. For example, if the more rigorous role of the Commons preceded any detailed scrutiny in this House, by definition, the decision of MPs to ratify a treaty or to withhold ratification could be taken without the benefit of the views of your Lordships. That would clearly be farcical.

The improvement suggested here would ensure a more rational sequence for debate and for relevant consequent primary and secondary legislation. Amendment 12 seems to me a useful addition but, as the noble Lord clearly appreciates, it is no substitute for the essential scrutiny requirements of the cross-party Amendment 6. As my noble friend Lord Purvis emphasised, nothing compares in clarity with inclusion in the Bill. The restatement of a convention, or even a Written Ministerial Statement, is no substitute for inclusion in the law of the land. As far as I can see, these two amendments are entirely complementary, and I hope the Minister will accept them both as clearly strengthening the whole Bill.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 4:00 pm, 7th December 2020

My Lords, these two amendments have much to commend them and dovetail neatly with parts of my Amendment 7, which we will consider in a moment: in particular, that any trade agreement or report from the Trade and Agriculture Commission should be laid before Parliament in sufficient time for it to be considered. I will go into more detail when we come to that group of amendments, but it would also extend the period during which a vote shall be held in each House to up to 42 days, so there is an overlap between Amendment 6 and my Amendment 7. This is important for the reasons set out by the noble Lord, Lord Purvis, my noble friend Lord Lansley and others, particularly, the noble and learned Lord, Lord Goldsmith, who chairs the committee and speaks with great authority on these issues. There must be time for both Houses of Parliament to consider those agreements, in the terms set out by the noble Lord, Lord Purvis, and others supporting Amendment 6.

I refer again to the useful table included on page 77 of the National Food Strategy, part 1, which I refer to as the Dimbleby report, part 1, which sets out the scrutiny of trade agreements in the various legislative Chambers. It is true that in Australia, Parliament must vote on legislation to implement a trade agreement only where it requires changes to national laws. However, tariffs are set in statute in Australia, so that effectively gives Parliament a vote on trade treaties. For TTIP, the House in Australia spent two days debating the treaty and the Senate one day. In Canada, as in Australia, Parliament does not have a formal vote on treaties; the Executive must lay a deal before Parliament 21 days before any action to implement the agreement is taken. However, as in Australia, Canada’s tariffs are set in statute, so again, Parliament inevitably needs to vote on the deal as a whole as well as any implementing legislation.

Perhaps the most thorough—albeit that we are leaving the European Union—is the European Union process itself. In New Zealand, Parliament must vote on legislation to implement the trade agreement, which means that the treaty is voted on again by the House only if it requires a change in domestic legislation. It has already been said that in Japan, the approval of the National Diet, the Japanese Parliament, is required for any trade agreement to come into force, and in Switzerland, all trade agreements must be approved by the Federal Assembly, the Swiss Parliament. If 50,000 Swiss citizens request it, they must be put to a referendum. Our scrutiny of trade agreements—not continuity agreements but new agreements, where, as the noble and learned Lord, Lord Goldsmith, identified, there is no underlying EU agreement—is deficient compared to that of other national jurisdictions and Parliaments.

I have sympathy with Amendment 6, although I will go on to explain when we come to the group beginning with Amendment 7 why I believe that my wording is preferable.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. I support the objectives of Amendment 6 in the name of the noble Lord, Lord Purvis, and colleagues, which seeks to ensure that trade deals are subject to parliamentary scrutiny and that consultation takes place with the devolved Administrations, a feature that is currently missing. This is particularly acute as we have just three weeks until the end of the transition period and do not know whether there is to be a trade deal or whether, if agreed, it will be zero tariff, or whether the UK will be operating under WTO rules.

This amendment, in the names of the noble Lord, Lord Purvis, and other noble Lords, has been supported by the Trade Justice Movement and Greener UK. It has five properties, which are very important for the scrutiny of trade deals. First, before negotiations, there will be a debate and vote by MPs on the Government’s negotiating objectives; secondly, during negotiations, there will be additional scrutiny through a dedicated parliamentary committee; thirdly, after negotiations, there will be a vote in both Houses on a final deal, prior to ratification; fourthly, there will be mandatory sustainability impact assessments on the impact of the new trade deal on the environment, public health, human rights and global development; and, fifthly, there will be consultation with the devolved authorities. As the noble Lord, Lord Wigley, said, those things absolutely are important. Coming from Northern Ireland and having been a representative of the devolved institution there, I say that it is important that we recognise and acknowledge the devolution settlements.

Those five provisions offer a considerable improvement on the level of parliamentary scrutiny of trade deals in the UK, whose processes lag behind those of the EU and other countries. The current treaty scrutiny system, as outlined in the CRaG Act, is inadequate and has been criticised by five parliamentary committees, including the Lords Constitution Committee and the Lords International Agreements Sub-Committee.

Modern trade agreements affect large parts of public policy, including consumer and workers’ rights, environmental and climate change legislation, food standards, health, public services and international development. In such a context, it is vital that trade deals are developed democratically. I support Amendment 6. I also support Amendment 12, in the name of the noble Lord, Lord Lansley. If the noble Lord, Lord Purvis, eventually presses his amendment, I will support him in the Lobbies this evening.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie. I agree with everything that she said. I was going to speak only to Amendment 6 but the opening speech on Amendment 12 was very convincing, so if the House divides on either amendment, I shall vote for them.

My problem with the Bill is one that I have had for the last two years with this Government—particularly in the last year, when they have kept trying to reduce our democracy. I simply do not understand how a Conservative Government can justify that. If they were sitting on the Opposition Benches at the moment, they would be shouting loudest about how corrupt it all was and how we were trying to take power back for the people, not for politicians, and so on. For me, it is incredibly frustrating constantly to hear and see these attacks on democracy. I do not think that this Government have a clue about it.

We have discussed these issues more than once over the past four years; it is getting quite repetitive. When we in this House amend and improve any legislation, it goes back to the Commons and then of course it is all whipped out or the Bill is delayed for a few years, so in some ways all our work is for nothing. With this Bill, the Government are again trying to bypass scrutiny. Why would they want to do that? Scrutiny helps—it can highlight the problems, as well as improvements—so why anybody would want to do that, I just do not understand. It should be enough, even for the most loyal Conservatives on the Government Benches, to ask, “What on earth we are doing here? Why are we bothering? There is all this hard work from the second Chamber and it comes to nothing.”

The Greens believe that the market and the economy should serve the people, not necessarily politicians or even big business. Therefore, I strongly support Amendment 6. It is a case of caring very much about climate change, the environment, workers’ rights and the quality of our food; I just do not understand why the Government are choosing to fight this. I accept that having a huge majority in the Commons means that they can pretty much do what they like, but why would they? Why not honour some of the promises that they made in the Brexit debate and give power back to the people?

Photo of Baroness Noakes Baroness Noakes Conservative 4:15 pm, 7th December 2020

My Lords, it is always a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, although I cannot accept her diagnosis of this being an attack on democracy. I shall make just three short points, because we do not want this to go on all day.

First, noble Lords who have brought forward these amendments have not adduced any evidence as to why they are needed. The core procedures for the handling of treaties have served this country well. The Ponsonby rule, which the noble Lord, Lord Purvis of Tweed, reminded us of again today, is now enshrined in CRaG. As I said, no practical issues have been put forward for these amendments being needed. The Government have responded to the desire, as expressed by both Houses of Parliament, for more information and more involvement in the processes of scrutiny of trade treaties, most recently in the latest Ministerial Written Statement. I think that I am the only noble Lord speaking here today who has not seen a copy of that Statement but I am sure that it is splendid.

My second point is on the royal prerogative and prerogative power. I agree with my noble friend Lord Lansley that, despite Amendment 6 saying that it does not seek to override or diminish prerogative power, its effect is that, in practical terms, it does so—in particular, in relation to the approval of the negotiating objectives, which is not part of our current processes—and could easily restrict the prerogative power available to government. That is why I think that the Constitution Committee of your Lordships’ House did not recommend that we go down that route.

My third point is on parliamentary accountability. Both amendments in this group are predicated on a view that parliamentary accountability requires legislation to make it effective. That is plainly not in accord with our parliamentary history. It is also, I submit, a dangerous route to go down. The strength of the UK’s parliamentary system is its capacity to evolve constantly, as we have seen in relation to free trade agreements with the way in which the Government have been open to involving Parliament increasingly and in different ways, including through engagement with committees.

If we wrote too much into legislation, that could work against the flexibility that is the hallmark of our system and has served us well, in particular over the last couple of years. I believe that that could end up being Parliament’s loss at the end of the day. The noble and learned Lord, Lord Goldsmith, referred to the constructive partnership that has been emerging between his committee on treaties and the Government, and the practical ways in which the work of his excellent committee is being helped to be effective. I have to say to noble Lords that the more you codify, the more it is less likely that constructive partnership becomes the hallmark of an ongoing approach. Noble Lords really cannot have it both ways.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

My Lords, I also find Amendment 6 rather severe: not only is it asking for accountability to Parliament but it challenges the entire CRaG process. However, I accept that there is strong public feeling on this, which is confronting the Government’s post-Brexit policy directly and the political impetus towards global free trade. Many stakeholders and charities have already commented on several FTAs currently passing through Parliament; they want to be sure that there are safeguards throughout the process of scrutiny, and I understand that. I agree in principle with the noble Lord, Lord Purvis, and the right reverend Prelate. It is an impressive spectrum of opinion.

The noble Lord, Lord Tyler, refers to CRaG as minimalist, and he may well be right. However, I said earlier in our proceedings on the Bill that I had accepted the Government’s view that they had been flexible and that CRaG was, for the time being, fit for purpose and need not be altered yet—at least not radically. We have made a good start. The noble Lord, Lord Lansley, uses the word “consensus”; I admire what I know of the European Parliament’s scrutiny processes, especially its opening up to civil society in all member countries, but I have misgivings about a debate on the objectives of every FGA, because I can guess how much it would slow down our own process.

The noble Lord, Lord Lansley, made an important point about domestic legislation, but all this adds to the CRaG process. It is desirable, and there may be a time for it, but as we are entering a new era of trade agreements, we should wait to see how our existing process will cope with so much demand. Do we have the resources to do this? I am not sure whether the noble Baroness, Lady Jones, has taken that on board. We have already missed the boat with a row of important new agreements, either past or imminent. I suggest instead that CRaG and the issue of 21 days should be reviewed in a year’s time. So while I am sympathetic to the amendment I may have to abstain on the vote.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

I call the noble Baroness, Lady Finlay. No? Then I call the noble Earl, Lord Caithness.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I am sorry that the noble Baroness was unable to give us the benefit of her wisdom.

An advantage of being “tail-end Charlie” as the last speaker of 15, is that most of the points have already been made, which helps to speed things up. Let me start with Amendment 12 in the name of my noble friend Lord Lansley. He made some convincing arguments and, unless the Minister can convince me otherwise, we should support the amendment. The noble Earl, Lord Sandwich, said that CRaG was fit for purpose. I contend that it is not. It was designed in another era, when we were part of the EU and the EU was doing our trade deals. Now we are doing our own trade deals—good luck to the Minister and godspeed to all his civil servants; they will need it in this complicated world. The trade deals that we negotiated 50 years ago are hugely different from those we are negotiating now. Today’s deals are much more complex and involve not only trade but each and every one of us—the environment, biodiversity, the way we live. Therefore, it is important that Parliament is properly involved.

How complex trade deals have become is the compelling argument for Parliament to be given a statutory right to look into these matters. Trade deals are only going to get more complicated, therefore the discrepancy between the current situation, which is out of date, and what is needed in the future, is growing. Effective scrutiny by Parliament on a statutory basis would improve the quality of decision-making. Nothing hones a civil servant’s pen quite like getting Parliament to have a good look at what they are doing.

We have heard that a common objection to the wording of Amendment 6 is that it ties the Government’s negotiating arms and affects their room to negotiate with the other side. I do not think it does. In America, Congress is a very useful weapon that the US negotiators use. They constantly say, “We couldn’t possibly get that through Congress”. Our discussions with the EU are at a very delicate stage, and if there had been a mandate from Parliament that one of the negotiating objectives of this Government was that we would be a sovereign state equal to the EU, we would not be having prevarications with some of the EU states. We would have had a much better chance of getting a deal. Rather than the Prime Minister saying: “We are going to be a sovereign state”, he could quite rightly say: “Parliament has said that we are going to be a sovereign state”. That would have saved a lot of the rather frustrating and silly discussions that are going on at the last minute. It would also consolidate the position of the UK as a serious negotiating partner which will ratify whatever deal is agreed if Parliament has had a proper say.

I am very much aware that the Minister has made concessions on a number of points, but that is not the same as having them in statute. In this day and age, given what has happened in America and how the EU looks at its trade deals and has adapted, it is time that we adapted and took a firmer view, giving Parliament the statutory backing that it needs to look at these matters, but not to the extent of tying the hands of the Minister and the Government in any negotiating deal. Therefore, I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I am sorry that technical difficulties meant that I could not come in just now. I support Amendment 6 in the name of the noble Lord, Lord Purvis of Tweed, who made the case for it comprehensively. In Committee, the involvement of the devolved Administrations in consultation over trade was stressed whenever UK Ministers wished to make an agreement that included issues that fall within devolved competences. Respect for, and consideration of, the devolved responsibilities and implications of agreements will result in clearer communication between Westminster and the Government, in better relations with the devolved Administrations, and in clear messages to the population overall. This amendment would bring agreement centrally into Westminster, not disrupted by protesting voices from devolved nations that fuel separatist movements. The noble Lord, Lord Wigley, has set out the benefits with arguments that I endorse.

On issues relating to health we discussed at length the importance of the Government’s commitment that the NHS is not up for sale. This country’s unique databases have enormous potential value. As health, whether human, animal or ecological, is a devolved responsibility, it is essential that anything touching on health in its broadest context is the subject of consultation with the devolved Administrations. The noble Lord, Lord Lansley, eloquently stressed that Ministers should not ratify an agreement that would not be approved by Parliament. In respecting the royal prerogative, the individual nations must not find themselves sidelined.

Amendment 6 is essential to consolidate, not destabilise, the united nature of the United Kingdom. To break up the United Kingdom would indeed be an “abject failure of statecraft”.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords), Shadow Spokesperson (Digital, Culture, Media and Sport), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade)

My Lords, we have had a good and wide-ranging debate today. I want to pick up on the speeches of the noble Lord, Lord Purvis, who introduced Amendment 6, which I have signed, and the noble Lord, Lord Lansley, whom I thank for his clear introduction to Amendment 12, which we also support. The noble Earl, Lord Caithness, is not a normal ally on many of the issues we have discussed in your Lordships’ House over the years. However, he made the point about the importance of trade so well that I wanted to endorse it. Trade is now central to our existence as a country and very important to the individuals who live here because it impacts on almost every aspect of our lives.

The issues that have dominated this debate are interrelated with the three key issues that have been around since your Lordships’ House first discussed trade when considering the original trade Bill, but they are also separate. They are interrelated because they all rely on Parliament and the Executive co-operating in a constructive partnership, which I agree exists, to achieve the best outcomes for the UK, as has already been mentioned. The issues are: the non-regression of standards—dealt with in Amendment 22 and addressed in Amendment 12, proposed by the noble Lord, Lord Lansley; the scrutiny of trade agreements and the objectives, and progress made towards those objectives in the final texts; and the process of ratification. These issues are not so separate that they require separate approaches, but they point to different directions under different sources of authority. I believe that, with constructive partnership, the Government and those debating these issues today are not far apart, and it should be possible to get at least a working way forward, even if we cannot find the exact words we want today.

We must recognise that we are in a bit of a quandary. What we thought was a settled set of positions has turned out to be a moving target. A good example is the recent amendment of the Agriculture Bill during its progress between the other place and your Lordships’ House. Amendments were made which effectively support the non-regression of standards, at least in relation to agriculture and the environment. Clearly, that reads across to this Bill, and we will need to return to that issue when we consider Amendment 22. As the noble and learned Lord, Lord Goldsmith, said, a Written Ministerial Statement issued this morning offers greater reassurance regarding the practices and processes required under the present scrutiny and approval arrangements. However, these are not underpinned by statute and there are limitations in respect of some of the issues the Committee will want to raise with the Minister.

Given that we are slightly uncertain as to the Government’s position, how do we want to progress? Where do we want to go with these issues? I hope this debate has revealed that there is a modest but good case for a 21-st century model for how we do trade. We are the only major democracy which does not allow Parliament a role—the noble Baroness, Lady McIntosh, made that clear in her résumé of the issues in play in other countries. If we do not do something at this stage, trade will be the only public policy area effectively off limits for the UK Parliament. That is unacceptable.

Amendment 6, as has been said, tries to engage with the Government’s red lines. It recognises the royal prerogative, but it is wise to bear in mind the point made by the noble and learned Lord, Lord Goldsmith, about not sacrificing our objectives and principles in pursuit of the royal prerogative. It has been challenged over the years and continues to be debated in relation to parliamentary sovereignty, which we all believe to be more important. Amendment 6 provides a schema that would give Parliament the effectiveness it currently lacks in reviewing and approving trade negotiations, and I commend it to your Lordships’ House.

However, that issue is best addressed by Amendment 12, which focuses on parliamentary procedures under the CRaG legislation. It includes a very important element which we have not debated sufficiently: an analysis of changes in domestic legislation if, as the noble Lord, Lord Lansley, said, that is required by a future trade agreement; and a requirement to undertake those changes before ratification, ensuring that the statute book is in order before we sign up and implement the deal negotiated for us. It looks very hard at the 21-day period of consideration but, in the spirit of partnership, does not challenge the Government’s wish to retain CRaG. However, it ensures that time is made available, not because the Opposition want to debate these issues, but because the Government do. As the noble Lord, Lord Lansley, said, it does not limit ratification in exceptional circumstances. It does the trick of trying to find a 21-st century model, without tearing up the existing position. We will support that amendment if the noble Lord chooses to test the opinion of the House at the end of this debate.

We are not trying to be too radical; we are trying to be fair and reasonable. As the right reverend Prelate the Bishop of St Albans said, we do not want to lag behind everyone else on transparency. There is a consensus for change. If we support Amendment 6 and vote through Amendment 12, we will get a long way down that track.

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy 4:30 pm, 7th December 2020

I would like to thank noble Lords for the courteous way in which this debate has been conducted. I will begin with Amendment 6, in the name of the noble Lords, Lord Purvis of Tweed, Lord Stevenson of Balmacara, and Lord Curry of Kirkharle, and the right reverend Prelate the Bishop of St Albans. During the passage of this legislation, I believe there has been a general acceptance on all sides of the importance of Parliament’s being able to effectively scrutinise trade policy, including our new FTAs with the likes of the US, Australia and New Zealand. We have consistently ensured that there is sufficient scope for Parliament to do this.

The Government have taken a number of important steps, and it is pleasing that noble Lords recognise this and have supported us. For example, we have shared extensive and comprehensive information with Parliament ahead of negotiations with the US, Australia, New Zealand and Japan. On 12 October, I made a Written Ministerial Statement setting out the transparency and scrutiny arrangements for specific international trade deals, starting with Japan. Today, I have made a further comprehensive statement setting out arrangements for trade agreements with the United States, Australia and New Zealand and the UK’s proposed accession to the CPTPP. I believe this statement adds further weight to the enhanced procedures we have already outlined. I was pleased that the nobel Baroness, Lady Hayman, picked up on and welcomed the reference to environmental impacts, and grateful for the pragmatic comments about the statement from the noble Earl, Lord Sandwich. I was also grateful for the comments made about the statement by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Stevenson.

I believe that our approach to transparency, and openness to scrutiny by Parliament and stakeholders, is at least as strong as any other Westminster-style democracy, such as Canada, Australia and New Zealand. I can assure the noble Lord, Lord Purvis, that nothing should be read into the omission of South Africa from this list.

Your Lordships have drawn comparisons between our approach and those taken by the EU and US. They are more similar to each other with their federalised arrangements, than they are to the UK. The European Commission negotiates on behalf of the interests of the 27 member states and its scrutiny arrangements reflect the specific and unique structure of the EU. The same applies to the US. The role the US Congress plays in scrutinising international trade agreements is a product of the constitutional make-up of the United States. I suggest it would be wholly inappropriate for the UK, with our own unique constitutional framework, to import the regime of another country, particularly one where the constitutional circumstances differ so markedly.

We have frequently repeated our commitment to ensuring a transparent trade policy and we have delivered on this time and time again. We have made significant progress in this space. We have listened to concerns from parliamentarians and have taken actions to address them, including putting the Trade and Agriculture Commission tack on to a statutory footing, which will be discussed in the next group of amendments.

We have kept Parliament regularly updated on the negotiations as they have progressed. We have done this via Written Ministerial Statements to update Parliament on key milestones and we have held regular, open briefing sessions for all parliamentarians throughout the negotiations on our FTAs. We have engaged closely with the International Trade Committee and the International Agreements Sub-Committee, including writing to the chairs of both committees at every key stage and facilitating private briefings for them with Ministers and our chief negotiators. My noble friend Lord Lansley, as a member of the IASC, has seen us in action on this and has complimented us on it. We will continue to share confidential treaty text on the FTAs that are currently under negotiation, and on the CPTPP when it comes down the track, with the ITC and the IAS. We will ensure that they both have time to produce a report on any such concluded agreement before it is laid before Parliament under the CRaG procedure.

I hope noble Lords will also realise and accept that we have demonstrated this with the Japan agreement. I accept absolutely the importance of this, as described so cogently by the noble and learned Lord, Lord Goldsmith. Both of the committees’ reports on Japan have now been published, with, if I may say, both committees praising the engagement that they have had with my department. The IASC report notes that

DIT has been a constructive partner in helping to determine the right processes by which parliamentary scrutiny of the Government’s new function of negotiating trade deals can be facilitated.”

In addition, the ITC and IASC reports congratulate the Government on their achievement in securing the Japan agreement, noting the warm welcome that it has had from witnesses in their inquiries.

I turn to the devolved Administrations. The Government have always been clear that we want to engage meaningfully with them on our trade policy. As Counsel General for Wales, Jeremy Miles MS, recently confirmed in his evidence on 19 November to the Welsh Affairs Committee, the DIT has listened to the devolved Administrations. We have established a new ministerial forum on trade and we have used it to consult the DAs on all of our trade agreements. The forum has met three times already this year and will meet for a fourth time later this week. I can assure the noble Baronesses, Lady Finlay of Llandaff and Lady Ritchie of Downpatrick, and the noble Lord, Lord Wigley, that our desire to engage with the devolved Administrations is both deep and sincere, and we will continue to do so. I believe that putting these arrangements into statute would upset this balance. While in practice, the Government engage with the devolved Administrations on international trade policy, it is important to remember that this has legal status as a reserved matter. We have to take care to preserve this status.

I turn to impact assessments. The Government are committed to an inclusive and transparent trade policy. Scoping assessments are published to assess analytically the impacts of new FTAs in advance of negotiations, and following the conclusion of negotiations currently in train, a full impact assessment will be published prior to implementation. This will be presented to Parliament, alongside the final treaty text, together with an explanatory memorandum to aid parliamentarians in their scrutiny role. Of course, this is in addition to the CRaG procedure. We will also ensure that the impact assessments are independently scrutinised by the Regulatory Policy Committee.

In drafting the amendment, I welcome the fact that the noble Lord has tried to address our point at previous stages of the Bill; namely, that the negotiation and making of treaties, including international trade agreements, is a function of the Executive held under the royal prerogative. However, despite the drafting of subsection (1), that

“Nothing in this section restricts the power conferred by Her Majesty’s prerogative to commence, conduct negotiations towards and then conclude a trade agreement”,

I am afraid that the amendment does exactly that because it places restrictions on the ability of the Government to enter into treaty negotiations and to ratify treaties. With all due respect to the drafters of the amendment, it starts by saying one thing and then it goes on to say another. I am grateful to my noble friends Lord Lansley and Lady Noakes for also spotting that and pointing it out to your Lordships.

Giving Parliament a veto over our negotiating objectives would curtail the royal prerogative, whatever the preamble to the proposed new clause says, and would limit our flexibility to negotiate in the best interests of the UK. I know that noble Lords are aware that the Constitution Committee of this House recommended in its 2019 report on the scrutiny of treaties that mandates for treaties should not be subject to parliamentary approval.

Ultimately, if Parliament is not content with a trade agreement that we have negotiated, it can—like for the majority of all other treaties—raise concerns by resolving against ratification under the statutory CRaG procedure. Under that, as noble Lords will know well, Parliament can delay ratification indefinitely, giving it, in effect, the power to block ratification. The Government are committed to a transparent trade policy with comprehensive engagement with Parliament. We have already demonstrated this and we will continue to do so. The Government have moved a long way in developing comprehensive scrutiny arrangements that are appropriate to our constitutional make-up.

I turn now to Amendment 12 in the name of my noble friend Lord Lansley. I thank him for the amendment. He and I have already had constructive discussions on the topic, and I think it is fair to say that we are in mutual agreement on the importance of strong parliamentary scrutiny and the transparency of our trade deals.

On implementing our trade deals, noble Lords will be aware that it has long been UK practice not to ratify international agreements until any necessary implementing legislation has been passed domestically. This is a well-established process that the FCDO has followed historically for treaties for centuries in order to ensure that the UK will not be in breach of the treaty when it enters into force. The Government have no intention of deviating from this process in relation to our new trade agreements. However, we believe that putting this on to a statutory footing would be inappropriate and would deprive and restrict the Government’s flexibility in the conclusion of our international trade agreements, as well as curtailing the treaty-making prerogative.

I know that my noble friend has expressed concerns about the level of detail in the explanatory memorandums that are laid alongside treaties. I agree with him that Parliament should know clearly how the Government intend to implement any commitments made in an FTA and what legislation Parliament will need to pass in order to implement it domestically. I would argue that, in part, we already do this. For example, in paragraph 5 of the Explanatory Memorandum to the recent Japan agreement, we outline how the agreement will be implemented in domestic legislation. It includes details on how commitments in specific policy areas, such as tariffs, procurement and technical barriers to trade, will be implemented, and where legislation will need to change. I can say without reservation that I would be more than happy to explore with my noble friend how we might make this clearer and more useful to parliamentarians. However, I do not believe that this is an issue which is best resolved in legislation.

In respect of facilitating debates on FTAs as part of CRaG, we have been clear that the Government will facilitate requests for debate on the agreement—including, of course, those from the relevant Select Committees—with the only caveat being that it is subject to available parliamentary time. As many noble Lords know far better than I, it would not be appropriate for the Government to guarantee debating time in the way suggested in this amendment. As I am sure my noble friend with his ministerial experience can appreciate, any Minister would like to be able to guarantee debating time. However, the pandemic and other matters have shown us the need to remain flexible in how we manage precious parliamentary time.

I assure noble Lords—I said this in Committee and willingly repeat it now—that it is not the Government’s intention to shy away from scrutiny. I believe that scrutiny gives us better free trade agreements; the Government want these agreements to be examined by parliamentarians and effectively scrutinised. I hope that noble Lords do not mind my saying that the Government’s practical record on this has been good. Requests for debates have been met, most recently on our FTA with Japan, which was debated in your Lordships’ House on 26 November. I am very pleased that 31 speakers participated in that debate, which followed on from the six earlier debates on our continuity agreements that we facilitated. I hope that these will be the first of many debates on our forthcoming agreements that the Government will facilitate, where—I repeat—parliamentary time allows.

This debate has allowed me to outline the extensive steps that the Government have taken to ensure that Parliament has an effective scrutiny role in the constitutional context of the UK. This includes our long-standing commitments to provide comprehensive information to Parliament in advance of starting negotiations—beyond what many other partner countries undertake—along with conducting thorough engagement throughout negotiations. In addition, we have further enhanced arrangements at the end of negotiations. On this point, I thank noble Lords for helping us to shape these arrangements; I am sure that we will continue to shape and improve them as we go forward. Noble Lords have helped to improve the process of FTA scrutiny and, frankly, persuaded the Government to bring forward their amendments on the Trade and Agriculture Commission. The EU International Agreements Sub-Committee of your Lordships’ House persuaded the Government to ensure that it is given time ahead of the start of the CRaG period to produce a report on the agreement. This will ensure that your Lordships are better informed and able to scrutinise our new agreements more effectively.

As many noble Lords have expressed over the course of this Bill, this is the first time in nearly 50 years that the UK has undertaken trade negotiations; I hope that noble Lords recognise that my officials are not doing a bad job of it. I believe that we should utilise the flexibilities afforded to us under our constitutional arrangements to ensure a robust scrutiny process. I repeat the Government’s commitment to continue to ensure that these arrangements remain fit for purpose, working in close collaboration with the relevant committees.

I hope that I have been able to address your Lordships’ concerns adequately. I therefore ask my noble friend Lord Lansley not to move his amendment and the noble Lord, Lord Purvis, to withdraw his amendment.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade)

My Lords, I am grateful to the Minister for a very thorough response; he will find out how persuasive I have found him in a moment after I draw out two or three points from the debate. I am grateful to all those who have taken part and, indeed, for the support that I have received, including from the noble Lord, Lord Stevenson of Balmacara.

I have been a Member of this House for seven years. While the noble Lord was making his remarks, I reflected on the fact that if the noble Earl, Lord Caithness, supports a liberal amendment and the noble Lord, Lord Lansley, persuades a Green Peer, it is pretty evident that there is some cross-party backing. We can rely on the noble Baroness, Lady Noakes, to be consistent in her position. I am grateful to her. She always makes me think in these debates, even though she does not often persuade me. I have a copy of the Written Ministerial Statement, which I can share with her if she likes; I am afraid that it is rather heavily annotated, which will not surprise her. I think the point that she made was ably addressed by the noble Earl. Yes, these are our first trade negotiations in 50 years, but almost by definition, as the noble Earl and the noble Baroness indicated, these agreements are very different in nature from those of 50 years ago. They are primarily concerned with non-tariff measures rather than tariff measures.

I agree with the Minister that our approach must suit our own unique constitutional arrangements. With regard to that, the Minister should reflect that the prerogative power is not a static thing as part of those constitutional arrangements. It has been demonstrated that there have been changes in the use of that prerogative power over many years. It used to be a prerogative power that Parliament had no say in the deployment of troops, for example; this is now recognised to be rather different. I assure the Minister as the drafter of this amendment that amendments do not get tabled in this House without the beady eye of the Public Bill Office ensuring that one clause does not contradict another. So I believe in the robustness of this amendment, but I am grateful for his advice.

If I were arguing that, if Parliament is not content with the Trade Bill, it can raise any concerns it may have over a trade deal by resolving against ratification and delaying any implementing legislation indefinitely, I think that the noble Baroness would be frustrated with me for proposing such an argument. What would it say if a sovereign entity—the sovereign Government—signed an agreement then Parliament used a mechanism to delay the implementing legislation indefinitely? That would massively undermine the sovereignty of the Government that had signed an international agreement—yet that is the Government’s position in the Written Ministerial Statement; I quoted from it. It is not a fit-for-purpose mechanism; it is not an appropriate way of considering how we approve trade agreements.

Secondly, I refer to the point made by the noble Lord, Lord Lansley. These procedures are not very good; I would love him to have a right of reply to the Minister too. I will not endeavour to speak for him, nor would he want me to, but the noble Lord’s question—with regard to the amendment—about the ability of Parliament to make a decision before the signature is deliberate. In trade agreements, we know that there is a finalisation process and then, often, an initialling process. The initialled text will then usually go to the Parliament before there is full signature by the sovereign country. It is no accident that, at that stage, in Japan, which went through the process on 24 November, the law then authorised the Japanese Government to put their formal signature on the agreement. If there are problems, the time to highlight them is not as we have it—after the event, where a treaty has basically been made—after which we have the power only to delay the implementation. The right time is at the time of signing. This allows a judgment to be made to avoid problems down the line if there is still a great deal of unease with the agreement that has been signed.

This brings me to my last point. I am glad that the Minister referenced the next group. One of the points that he was at pains to make—indeed the noble Lord, Lord Lansley, made a slight reference to this—concerned whether we are now putting a great deal of restriction on this power. As I mentioned before, the prerogative power has not been set in stone over the years, nor have the restrictions on any British Government over how they conduct or conclude negotiations. No British Government would go into any negotiations that would breach human rights agreements—the ECHR, for example. There are international obligations that we are bound to accept. We are a sovereign Parliament and the prerogative power, as the Minister would suggest, should be completely unfettered. Well, there is quite a high level of fettering about that.

We saw this in the European negotiations, both with the Theresa May Government and the Boris Johnson Government. Both published draft texts which they said they would stick to, or would ask the House of Commons to resolve on negotiation objectives for that. This is not, therefore, an unusual set of practices.

When it comes to restrictions—this is a point made both by the noble Baroness, Lady Noakes, and the noble Lord, Lord Lansley—the question is whether the elements of my amendment that put requirements on the Government both to consult Parliament and to present reports are, in effect, a restriction on the use of that prerogative power. If that is the case, then both should be opposing government Amendment 34 in the next group, because that amendment sets the criteria on a report from the Trade and Agriculture Commission to satisfy Section 42 of the Agriculture Act 2020 that just passed. I remind noble Lords that Section 42 placed a condition on Governments, before a treaty could be laid under the CRaG Act, that they make a statement of complying with domestic standards. That was a government amendment in a government Act that is now being amended for the Trade and Agriculture Commission. If that is not a restriction on the ability of Parliament to lay proposals, then I do not know what is.

I hope the Minister knows that I respect him and listen to him. However, I do not believe that he sufficiently addressed the wide concerns from across the House, including the main one, which is the necessity of bringing the processes up to date. Yes, it is the case that we are negotiating for the first time in 50 years. This is our opportunity as a House to say to the Government how we believe we should frame the next 50 years of negotiating these—as the noble Earl, Lord Caithness, said—complex and deep agreements. On that basis, I wish to test the opinion of the House.

Ayes 308, Noes 261.

Division number 2 Trade Bill - Report (1st Day) — Amendment 6

Aye: 308 Members of the House of Lords

No: 261 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 6

Amendment 6 agreed.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees 5:16 pm, 7th December 2020

We now come to the group beginning with Amendment 7. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.