New Clause 3 - Review of negotiation and implementation of Government Procurement Chapter

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [Lords] – in a Public Bill Committee at 3:15 pm on 20 February 2024.

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“Within one year of the day on which this Act is passed, the Secretary of State must publish—

(a) a review of the lessons learned from the negotiation and implementation of the CPTPP Chapter on government procurement, and

(b) an assessment of how this experience might inform negotiation and implementation of future free trade agreements.”—

Brought up, and read the First time.

Photo of Gareth Thomas Gareth Thomas Shadow Minister (International Trade)

I beg to move, That the clause be read a Second time.

Photo of Rupa Huq Rupa Huq Labour, Ealing Central and Acton

With this it will be convenient to discuss new clause 4—Review of negotiation and implementation of Intellectual Property Chapter—

“Within one year of the day on which this Act is passed, the Secretary of State must publish—

(a) a review of the lessons learned from the negotiation and implementation of the CPTPP Chapter on intellectual property, and

(b) an assessment of how this experience might inform negotiation and implementation of future free trade agreements

Photo of Gareth Thomas Gareth Thomas Shadow Minister (International Trade)

New clauses 3 and 4 are both probing amendments. On new clause 3, I refer the Minister to the evidence that Albert Sanchez-Graells, professor of economic law at the University of Bristol, gave to the Trade (Australia and New Zealand) Bill Committee some 16 months ago. He raised concerns about the potential implications of the differences between the procurement rules under CPTPP and those to which Britain was already committed under the WTO agreement on Government procurement, the GPA. His evidence was also accepted by the International Trade Committee as a significant concern.

Professor Sanchez-Graells also argued that seeking to improve procurement opportunities for British businesses via the CPTPP to get a GPA-plus arrangement would mean legal uncertainty about the remedies available to British businesses if they ran into problems, because the CPTPP procurement chapter seeks to incorporate the current WTO GPA and then amend its provisions. In comparison, our trade deal with Europe incorporates the GPA in full and then builds upwards from it.

Professor Sanchez-Graells argued that there were

“two main areas of problem: one is the national treatment rules on access to markets, which applies in particular to suppliers in different jurisdictions, and the other is access to remedies.”—[Official Report, Trade (Australia and New Zealand) Public Bill Committee, 12 October 2022; c. 41, Q51.]

It was access to remedies that particularly concerned him. At column 41 of his evidence to the Bill Committee, he noted that among the provisions of the procurement chapter in the Australia FTA—he confirmed at column 43 that this is replicated in the CPTPP procurement chapter—is a clause allowing the exclusion of legal remedies completely on the basis of public interest. He made it clear that, for a high-profile project, that could mean that the courts might set aside any claims for suspension of the procedure or even for the compensation for damages, if it were believed to be in the national interest of the country in question.

Under the trade agreement with the EU, that problem apparently does not exist, as the WTO’s Government procurement agreement is accepted in full as the floor for procurement obligations. Professor Sanchez-Graells argued that the provision might discourage small and medium-sized businesses in particular from investing considerable time and resources in trying to win procurement contracts in this case of CPTPP countries. It might make them a little more likely to focus on the European procurement market only, if anything.

I recognise that the Minister may not be 100% briefed on this very technical issue. As I set out, the concerns were articulated strongly during the passage of the Trade (Australia and New Zealand) Bill, but I did not get a clear answer explaining why the then Department for International Trade disagreed with Professor Sanchez-Graells’s views. I understand that he is still one of the leading experts on procurement law, so I gently suggest that his concerns merit a fuller reply than we received on that occasion. I wonder whether the Minister might be willing to explore the issue in due time and write to the Committee.

New clause 4 is also a probing amendment. A concern that my hon. Friend the Member for Slough touched on in passing is that the intellectual property chapter of the agreement stipulates that signatory countries must comply with a range of international agreements regarding IP. One of those is the international convention for the protection of new varieties of plants, UPOV 91. It may sound like an innocuous technical requirement, but several concerned organisations have put it to me that the provision could have real and negative consequences for small farmers, who are crucial to global food supply and environmental sustainability, and that it is a particular concern for lower and middle-income countries within the CPTPP.

To comply with UPOV 91, I understand that countries must introduce national IP legislation that eliminates the rights of farmers to save, use, sell or exchange certain seeds. That undermines the traditional practices of many farmers, who have relied for generations on a system of saving, reusing and exchanging seeds. Small farmers provide at least a third of the world’s food, and in some countries much more. The organisations that have made representations to me have pointed out that free and fair access to seeds provides a lifeline to millions of farmers, their families and the communities they feed. Indeed, in some countries of the world, farmers say that seed accounts for more than 90% of crops sown every year.

Concern has been expressed by many organisations, and most notably by Michael Fakhri, the UN special rapporteur—

Sitting suspended for Divisions in the House.

On resuming—

Photo of Gareth Thomas Gareth Thomas Shadow Minister (International Trade)

At first glance, UPOV 91 appears to require relatively tight and inflexible national intellectual property regimes, which in some cases can lead to heavy fines or even the imprisonment of farmers who violate them, often unknowingly. In countries such as Malaysia and Chile, UPOV 91 has been controversial, with often decades of resistance from civil society, farmers and environmental groups that feel that a much tighter patent regime on seeds will lead to the loss of indigenous knowledge and biodiversity. We should surely tread carefully when trade agreements place obligations on member states that could damage livelihoods and/or the environment and consider, if necessary, how to mitigate those impacts as much as possible.

Is the Minister willing to say now, or via a letter to the Committee, what assessment he has made of the UK’s commitment to UPOV 91 and its impacts on our Paris agreement, our climate, the sustainable development goals and other UN treaty commitments? What assessment has been made of the impact of CPTPP on small farmers, who are so vital to the world’s food and environment? Did he consider a side letter, following the example of New Zealand, which disapplies the UPOV 91 requirements between the UK and other member states? It would be interesting to hear his views on those questions. As I made clear, new clauses 3 and 4 are probing amendments, but none the less the issues raised are serious concerns that have been put to us. It would be good to hear the Minister’s response.

Photo of Greg Hands Greg Hands Party Chair, Conservative Party, Minister of State (Department for Business and Trade)

I thank the hon. Members for tabling the amendments, which regard reviews of the Government procurement and intellectual property chapters of the CPTPP. I confess that I will not spend long on this, as once again the amendments are all about impact assessments.

Once again, I assure the Committee that the Government intend to publish a biennial monitoring report and a comprehensive evaluation report of the agreement within five years of our accession. As I mentioned, the impacts cannot be disaggregated by individual chapters, and doing so through additional impact assessments would cost the taxpayer, be unnecessarily duplicative and not show the effects of the agreement as a whole. The CPTPP was of course conceived as a living agreement designed to evolve to maintain its high standards. Its text states that there should be a general review of the agreement periodically; the first general review is expected to begin shortly, in spring 2024. As I mentioned earlier, there is a UK consultation on this, and we will engage with each issue raised in the review in a way that seeks to promote and protect UK interests.

To be frank, the two specific points raised by the hon. Gentleman do not seem particularly close to the wording of the amendments. However, I have had a chance to look at his references to Professor Sanchez Graells. I understand that the hon. Gentleman has already received correspondence on the points that he raised—I think he mentioned that—as part of the passage of the Trade (Australia and New Zealand) Act 2023. That is a rarity: it was passed while I was not a Minister in the Department. That is a rare event, but I will look at it. The Government continue to disagree with Professor Graells, and I refer the hon. Gentleman to the correspondence he has already received on the matter. However, if he thinks that anything arises from that correspondence and wishes to write to me, I will have a look at it.

Similarly, I feel that the passage of the regime on seeds, UPOV 91, is fairly deeply in the scope of the Department for Environment, Food and Rural Affairs. I will undertake to write to the Committee about UPOV 91 and the patent regime on seeds. None the less, my point remains that the impact assessments we have already done—the biennial monitoring report and the comprehensive evaluation report of the agreement—are still the right approach to working out and assessing the impact of CPTPP. I therefore ask the hon. Member to withdraw his new clause.

Photo of Gareth Thomas Gareth Thomas Shadow Minister (International Trade) 4:15, 20 February 2024

I am grateful to the Minister for those replies. I will reflect on the points he has made, and may return to these on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.