Report (2nd Day)
22: After Clause 5, insert the following new Clause—
“Continuation of North-South trade and prevention of customs arrangements at borders
An international trade agreement between the United Kingdom and the European Union may not be ratified under sections 20 to 25 of the Constitutional Reform and Governance Act 2010 unless the agreement—(a) is compatible with the terms of the Northern Ireland Act 1998, and(b) does not—(i) negatively affect any form of North-South trade in goods or services or the operation of the relevant North-South implementation bodies, or(ii) create or facilitate customs arrangements between Northern Ireland and the Republic of Ireland after exit day which feature—(a) physical infrastructure related to customs checks,(b) a requirement for customs or regulatory compliance checks,(c) random checks on goods vehicles, or(d) any other checks and controls related to trade, that did not exist before exit day and which are not subject to an agreement between Her Majesty’s Government and the Government of Ireland.”
My Lords, the amendment stands also in the names of the noble Lords, Lord Kerr and Lord Bruce, and the noble Baroness, Lady Altmann. This amendment, which has cross-party support, is consistent with the previous amendment carried by your Lordship’s House, and which the Government accepted when the European Union (Withdrawal) Act was adopted last summer. However, it is vital that those provisions in Section 10 of the withdrawal Act are reflected in this Bill, which concerns not our divorce deal, as that Act did, but our long-term trading relationships.
In principle, the UK has joined Ireland and the EU in a shared objective of avoiding a hard border on the island of Ireland in order to help protect the hard-won peace process delivered by the Good Friday agreement—a peace process that is still just that: a process that, in my view, has dangerously reversed these past couple of years. The border is often described as the Irish border, a description which seems to absolve the UK of any ownership of it, but it is a UK land border with Ireland. If we leave, it will be a border between the UK and the EU, so it is our responsibility as much as it is Ireland’s and the EU’s responsibility under any circumstances.
Only last week, the head of the Northern Ireland Civil Service, David Sterling, warned of potentially grave and profound consequences of a no-deal Brexit—including a sharp rise in unemployment, the collapse or flight of businesses and potential unrest—for Northern Ireland, which, lest we forget, voted by 56% to 44% to remain in the European Union in 2016. Senior civil servants do not usually speak so candidly and compellingly. Advocates of a kamikaze Brexit might take notice and might also take notice of the strong words of the 50 or more Northern Ireland businesses which wrote to MPs in similar terms over the weekend.
The extent of trade and traffic over the Irish border is huge: 110 million person crossings take place every year; Northern Ireland, with its population of 1.8 million people, exports £3.4 billion over the border, by far its biggest export destination outside the UK and the first export destination for new and growing enterprises; at least 5,000 Northern Ireland companies trade with their neighbours over the border with Ireland; tens of thousands of people live on one side and work on the other; supply chains operate across the border without impediment; more than 400,000 lambs and 750 million litres of milk are exported across the border to Ireland for processing; and 177,000 heavy goods vehicles and 208,000 light vans cross the border every single month, which is 4.6 million crossings a year, and there are 22 million car crossings, and they take place all along a 300-mile border with nearly 300 crossing points.
By way of comparison, the Norway-Sweden land border is 1,000 miles long with only 57 crossing points. That is a hard border accompanied by infrastructure at the frontier, yet it is the very one most cited by those Brexiteers who seek to brush aside our border with the Republic as something which can be solved with a few cameras and some online programmes.
There are unique arrangements under the Good Friday/Belfast agreement for north-south co-operation. The Department for Exiting the European Union lists no less than 157 different areas of cross-border work and co-operation. Many of them have been facilitated by the common legal and policy framework provided by Ireland’s and the UK’s common membership of the EU since 1973. These areas are the things of everyday life—the precious signs of normality in the post-conflict border region—and there must never be new barriers or controls erected to block or discourage them. They include: food safety; tourism; specialist schools; fighting crime; tackling environmental pollution; water quality and supply; waste management; bus services; train services; cancer care; blood transfusions; and gas and electricity supply. We must never disrupt these arrangements, either through a divorce deal or—the amendment is directed at this—any new trade agreements.
WTO rules, which primarily remove barriers to trade and prevent unfair discrimination, will not allow these areas of north-south co-operation and everyday cross-border movement to be maintained. WTO rules and the obligations of an EU member state would strictly limit the kind of bilateral co-operation between the Republic and the UK as an EU member state which has made the border invisible in everyday life.
Some find all these essential facts to be tiresome obstacles to their Brexit dream. They argue that the border in Ireland will never need any new barriers, that the UK will never erect any on its side and that somehow Ireland, which by law has to obey EU and WTO customs and regulatory rules, will not do so either. The same people go on to use the word “technology” as a magic solution, repeatedly citing reports by one or two alleged experts on how, maybe, such solutions might work and might be ready someday, somehow.
One such study still bandied about is known as Smart Border 2.0, sometimes wrongly described as an EU report. It was presented to the European Parliament’s Committee on Constitutional Affairs in November 2017, together with opposing views from other experts. However, the report, based on the arrangements at the Norway-Sweden border that I mentioned, does not carry the imprimatur of any of the EU institutions. Furthermore, proposals in Smart Border 2.0 rely on both physical infrastructure and staffed border posts, which would be incompatible with the common travel area that the EU and the UK have agreed should continue. The technology proposed is untested and does not address concerns surrounding the management of animal and plant health—sanitary, phytosanitary and other regulatory issues that would require checks. Given the all-island nature of the agri-food industry and the constant livestock crossings, any need for such checks at the border would be an utter disaster.
In short, ideas like this are already in breach of the law under the EU withdrawal Act, which this House and the other place passed, in that it rules out measures that,
“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU”—
the same wording as in Amendment 22.
Your Lordships’ own EU Select Committee concluded rightly that technological solutions were a long-term aspiration and could only mitigate, not eliminate, the need for border controls or infrastructure in the event of Brexit. This very important point underlines the vital need for this amendment. No amount of technology can be a substitute for the regulatory alignment or equivalence that today makes customs checks and security controls across the Irish border unnecessary. The border is completely open and invisible today because there are common rules for trading, services and people movement on both sides. Various wheezes by Brexiteers to monitor barcodes on lorries and so on will work only if there is a common compliance regime on both sides of the border, yet the Brexiteers’ very mission is to end those common rules and that common compliance; that is what Brexit is all about.
The same applies to checks 20 miles from the border, as some Brexiteers have suggested. For example, the reason that Jaguar cars—or their components—can be sent for sale without checks or inspections through the Channel Tunnel or across the Irish border is because Jaguar has signed up to thousands of common EU standards and other regulations. If Jaguar were to be found in breach by a competitor or by the European Commission, it could be taken to the European Court of Justice; yet it is this very compliance regime that the Brexiteers reject. No amount of fancy technology or max-fac wheezes can overcome this reality.
By the way, if the UK fell out of the EU with no deal, as many Brexiteers want, to set us gloriously free, the World Trade Organization rules that they crave would also impose on the UK a hard-border requirement, outlawing special treatment of an EU member state—Ireland—by the UK, which, as a third country, would be outside the highly developed free trade agreement which is the European Union.
Even the highly politicised and heavily spun Northern Ireland Affairs Committee report of 9 March, just a few days ago, confirms that there are currently no technology border solutions anywhere in the world that can deliver a frictionless Irish border—therefore slaying a few hard-Brexit unicorns. The committee took evidence and reported that technology proposals for a frictionless border,
“have been tested somewhere in the world just not in one single border”,
and, as, such the border in Northern Ireland would be,
“the first and a leading example in the world of this kind”.
The committee concluded:
“This is not a simple, quick-fix solution and implementing it in Northern Ireland would represent a world-first”.
My Lords, please! That is like saying, “We can do brain surgery; we can do transplant surgery; it is just that we haven’t done brain transplant surgery yet, but we’ll have a go anyway”.
That all shows clearly why this amendment is absolutely vital and why the Government accepted it in terms in the Commons as part of the withdrawal Act. Now, we are asking Parliament to do the same in our future trading arrangements covered by this Bill, and I hope that the Government will accept it.
I ask noble Lords to note that this amendment does not prescribe any particular new border arrangements. That is a very important point: it does not place the Government in a straitjacket. All it requires is the very outcome that we all—leave or remain, government or opposition, London or Dublin—are supposed to be signed up to: namely, the invisible open border on the island of Ireland that we currently have. Without that, we all know what will happen, because we are already starting to see it happen: the reverse of the painstakingly constructed hard-won process of peace, stability and trust on the island of Ireland. We know where that ends: putting back up barriers of all kinds, which will spark division and potential conflict for generations to come. I hope that your Lordships’ House will accept this amendment. I beg to move.
My name is on the amendment but I have very little to add to the authoritative introduction from the noble Lord, Lord Hain. I agree with him that we should be pressing at an open door here. At the start of Report, the Minister, in responding to me on what the tariff regime would be in the event of no deal, indicated that we would be told in due course. Such is her power that I understand that the schedules were published this morning—conveniently for our debate. I am sure that that was the only reason for their publication and I am sure that we owe it entirely to the Minister, because the timing is so apt.
I myself have seen nothing from the Government but, according to the press, it is made clear in today’s announcement that temporarily at the outset—I do not know how long that means—if a tariff regime is required on 30 March because we leave with no deal, it will not be applied at the inner Irish border. There will be no tariffs and no customs checks, and imports will be exempt from quotas, although, for imports from the EU other than across the Irish border, tariffs will be charged—10% on motor cars and quite a high tariff on agricultural products of various kinds. I am not quite sure how long such an arrangement can last. It will be a breach of WTO rules, but I guess that the WTO will live with that for a bit. Although I have never wanted a BMW, if I did want to buy one, it would be 10% cheaper if I imported it via Dublin and Belfast, which would be slightly odd. I cannot see that lasting on a permanent basis.
However, my point is that the Government are quite right to exempt the inner Irish border—it really matters. It therefore seems obvious that it should be easy for the Minister to accept Amendment 22, moved by the noble Lord, Lord Hain. The Government have already accepted it in another context, as he explained, and today’s announcements show that they would intend to apply it to the inner Irish border anyway.
The other night, in his reply to a question from the noble Lord, Lord Campbell of Pittenweem, the noble and learned Lord, Lord Keen of Elie, said:
“The whole point of the present withdrawal agreement and the Northern Ireland protocol is to ensure that we adhere not only to the terms but to the spirit of the Belfast agreement”.—[Official Report, 12/3/19; col. 978.]
I applaud that. The withdrawal agreement is dead, but we must uphold the spirit and letter of the Belfast agreement, whatever the future regime, and this amendment would permit us to do that. Since it seems to be in line with the Government’s actions and words—in today’s tariff announcements and last night’s speech by the noble and learned Lord, Lord Keen—I very much hope that the Minister will be able to accept the amendment.
My Lords, speaking from a Northern Irish position, I urge the House as strongly as I can to support this amendment in the name of the noble Lord, Lord Hain.
As the debate over the entire Brexit situation has come and gone in the past few weeks, there has been growing concern across the business community in Northern Ireland about the hidden implications of what we are debating. They will affect every strand of the Northern Ireland business community, which is finding itself thrust on to the knife edge of Brexit.
The whole border question has obvious but also hidden implications. The noble Lord, Lord Hain, rightly referred to the Belfast agreement. While it is all too easy to raise the worry about an increase in violence and the breakdown of relationships—and to overplay that card—it is equally dangerous not to mention it. The subtlety of that situation is such that, with the words of this amendment, we are not only strengthening the spirit of the Belfast agreement but recognising that it is an integral part of the whole vista of trade.
Across the border counties, the links between the Republic of Ireland and the Province of Northern Ireland, there are numerous small businesses which are absolutely identifiable as Irish, in a sense. They are small and may not employ many people, but they are the absolute breath of the local community. Those businesses—as well as the major BMWs of this world, if the noble Lord, Lord Kerr, will forgive me—are not only the heartbeat of our community but are indicative of why Northern Ireland will probably be the greatest sufferer if what we fear in the light of yesterday’s events down the Corridor comes to pass.
So I urge noble Lords to take seriously the thinking behind this amendment. The noble Lord, Lord Hain, is ideally placed to speak about the situation from his years of experience in dealing with us in Northern Ireland and seeing something of what makes that community tick. While I am introducing an element that is not about detailed trade negotiations or principles, I believe that it is a genuine, real reason why this amendment must be passed.
My Lords, I rise briefly to support this amendment, to which I have put my name. Sadly, we have arrived at a point where a deeply divided Conservative Party has deeply divided the nation. The irony of that is that it is the Conservative and Unionist Party that currently presents the biggest threat to the integrity of the United Kingdom. Just over two weeks—15 days—before we are due to leave the European Union, the Government, if they do not take action or accept this amendment, present the greatest potential threat to the Good Friday agreement. This hard-won agreement was forged in the understanding that the UK was and would remain in the European Union, and that the UK and the European Union would be its joint guarantors. We are now moving into a new situation where it is unclear who the guarantors would be.
People talk about a deal, but there is no deal. There is an agreement, twice rejected, on how we leave the EU. The deal comes afterwards and has to be negotiated: we have not even begun to address that. Yesterday the Government published two guidance statements on trade and tariffs—one of them specifically for Northern Ireland. Yet this guidance acknowledges only what the UK Government can or will do. It cannot by definition legislate for any EU measures.
The Northern Ireland guidance states:
“Because these are unilateral measures, they only mitigate the impacts of exit that are within the UK government’s control. These measures do not set out the position in respect of tariffs or processes to be applied to goods moving from Northern Ireland to Ireland”.
So will the EU impose tariffs on agricultural products from the UK to Ireland or to the rest of the EU, just at the beginning of the lamb sales? Is that what we would be facing? And that is just one sector and one example.
That is why this new clause is needed. It is a clear and unequivocal statement that nothing can be done and nothing should be done that undermines in detail the terms of the Good Friday agreement. As long as the Government stand by their position, there is no agreement that conforms to this clause—because the House of Commons has rejected the agreement twice. So we are in danger of being in default. Parliament either has to accept the backstop, which was the means of securing acceptance—twice rejected by the House of Commons—or the Government have to abandon the red lines and seek more time to pursue a softer strategy built around the customs union. Better still, in my view—I guess my colleagues on these Benches will agree—we should suspend Article 50 and put the deal, which would have to come with a backstop, to a vote of the people, with the option to rescind Article 50 altogether, on the basis that there is no agreement that either commands a majority in Parliament or is consistent with the Good Friday agreement. Currently there is no such agreement on the table.
I commend this amendment to the House on the basis that adopting this new clause would give the House of Commons a building block for squaring the circle, which the Government and the House of Commons have so far utterly failed to do.
My Lords, my name is also on this amendment and I echo every word of the excellent speeches from the noble Lords, Lord Hain, Lord Kerr of Kinlochard and Lord Bruce of Bennachie, and the noble and right reverend Lord, Lord Eames. We have an international obligation. We have signed the Belfast agreement—a long-standing, deep and binding international agreement—and somehow it seems to have been forgotten or overlooked in the frenzy of focus on some kind of “pure Brexit”, as it is called. The noble and right reverend Lord, Lord Eames, called this the “hidden element”. It has become frighteningly clear that the Brexiteers did not understand Brexit properly. They imposed impossible and inconsistent red lines which have left us in the position we are now.
While the economics imply that staying in the customs union and single market will protect frictionless borders and supply chains and our manufacturing industry and services, it makes us a rule taker, and forces us to have some connection with the ECJ. On the political side, this has led to the drive towards dropping the backstop, as if it was a problem we should not care about—actually, we should care about it deeply—or even considering no deal, which clearly leaves Northern Ireland high and dry.
Leaving the customs union and single market cannot support an open border. Nor can no deal, or Canada-plus-plus. It saddens me that so many of our colleagues on these Benches are willing to countenance playing fast and loose with the hard-won peace achieved in Northern Ireland, for the sake of some kind of trading advantage which may or may not occur. I appeal to my colleagues on the Front Bench, and to my fellow Peers on the Conservative and Democratic Unionist Party Benches alongside me, to accept this amendment. It has already been accepted as part of the withdrawal Act. Surely we cannot, and must not, abandon the frictionless border in Northern Ireland, or cut Northern Ireland off from the rest of the UK.
My Lords, I want to address something in this amendment that is important, but which has not been picked up so far. In saying so, I support the amendment, which proposes to support the Good Friday agreement. People tend to think of that in terms of the structures within Northern Ireland and between north and south. However, a key part of the agreement was the arrangement of the British-Irish Intergovernmental Conference between the United Kingdom and the Republic of Ireland. For 10 years, it did not meet. The British and Irish Governments were in default of the Good Friday agreement for a decade. The European Union supported the Good Friday agreement, as did our friends in the United States.
In the context of the Good Friday agreement and addressing our difficulties, the suggestion that Ireland should be with the 27 countries which are negotiating with the UK, or having negotiations on their behalf, actually ignores the Good Friday agreement. If Britain and Ireland were not fulfilling it, the European Union should have been pushing the British and Irish Governments to come together to reach agreements that they could bring to Brussels together. There have been suggestions that this would be a breach of European Union understandings; it would not. However, not doing it is a breach of the Good Friday agreement.
If the British and Irish Governments have already agreed, or would agree over the next few months, on the main north-south economic and transport issues—agriculture, agri-food business and electricity—and agree that they would approach Brussels and request that these issues be dealt with on an all-Ireland basis, because they already largely are, it is highly likely that Brussels would accept that, whatever the other issues. It would not require a backstop; it would be a frontloading. The key thing is that the British and Irish Governments need to work together on this. That is what the last clause in the amendment says. In some ways, this ought to be the first clause, and the first stop, not a backstop: that the Governments come together and propose something.
People have repeatedly said that it is not appropriate for Ireland and the United Kingdom to negotiate together, because this is something between the UK and the EU as a whole. However, that simply does not work if people believe that they and the EU support the Good Friday agreement, which requires and mandates direct negotiations between London and Dublin on all joint issues. This has not been happening and I appeal to the Minister, as I appeal to Ministers in the Republic of Ireland, to come together on this issue. Ireland should be a bridge between the UK and the EU, not a bulwark for the EU against the UK.
My Lords, it is a pleasure to follow my noble friend, who speaks with great authority on this issue. In following him, I will use one example to highlight the importance of this amendment in maintaining the spirit and including the contents of the agreement. I use the example of today’s announcements on the proposed tariffs that may be applied on a no-deal Brexit and the Written Ministerial Statement on how that will impact on the Northern Ireland border, already referred to by the noble Lord, Lord Kerr. I was grateful for an opportunity to have a conversation with the Minister about this today.
The proposals for the tariff regime, which would be an increase of 489 tariff lines on goods from the European Union and would have to have some form of mechanism across the border of Northern Ireland, need to be seen in the context of operating within a year. This is not simply an emergency or temporary proposal, and a year is a long time in the context of some of the statistics referred to by the noble Lord, Lord Hain. There were 46 million vehicle crossings at the 15 Northern Ireland border locations in the last year, according to the Northern Ireland statistics agency—3.8 million of those were goods vehicles, nearly three-quarters of deliveries involve small businesses, and two thirds of cross-border trade is bilateral agri-food and intermediate trade. That means these are small businesses—as already referred to, 80% are low-value—and often individual businesses trading on a self-employed basis, but every one of those people will have to be registered with an economic operator’s index number, or EORI. Only one-sixth of all businesses have so far registered, so the system, even as published today, is not operable, but new processes and procedures have to be carried out. The Government are giving no advice to Northern Ireland businesses on that. They believe a unilateral action, against the spirit of the Good Friday agreement and the spirit of an all-island economy, is the way forward.
How can it be a unilateral approach if tariffs will not be applied to goods coming from Ireland, but will subsequently be applied if those goods are part of intermediate trade with Great Britain? Liz Truss, the Chief Secretary to the Treasury, was asked at lunchtime where the checks would be carried out. She said that she believed it would be at “a border in the UK”. This is the Chief Secretary to the Treasury today. What does that mean? If one is tolerant, one may forgive her not knowing the terminology of Great Britain and the United Kingdom, but that is unforgivable, given that she said she will vote for a no-deal Brexit in the other place this evening. What kind of consultation is being carried out, not just with the Irish Government—which, as my noble friend indicated, is urgent—but with businesses on both sides of the border that will be operating?
Linked with the long-term basis is the fact that the unilateral approach is not WTO-compliant, unless the Government trigger one element in WTO processes on public morals. There are some dispensations that can be provided, in extremis, on the basis of public morals that can set aside a system where we will not apply tariffs from one country, if we have no intention of applying them to the rest of the world. It would be a retrograde step if the Government activated a public morals clause at the WTO on a situation as delicate as that on the Northern Ireland border. The Government are setting aside security and border integrity as the basis of the unilateral no-deal proposal. The Government should see sense and support this amendment, because it provides the framework for these consultations to be carried out.
If the noble Lord would allow me, I entirely agree with the difficulties associated with the border, and the need for a soft border, but I am not sure that this amendment achieves that. It would not directly affect the no-deal situation at all. It describes what I regard as a soft border; it is what I would like to see and what the Prime Minister’s deal, with the backstop and so on, is intended to do. But we are now dealing with a different situation. I would love to see a secure, soft border between Northern Ireland and Ireland, but I am not at all sure that the amendment secures that in any way whatever, although I would be glad to have help on that. It would not be as a result of an agreement between the European Union and the UK if there was no deal; no deal is the very opposite of an agreement between the EU and UK.
The other problem is that Ireland’s relationships with countries no longer in the EU would be regulated by the EU. I should be glad of some explanation from the people who know all about this of exactly how the amendment achieves the result I and they wish to achieve.
My Lords, that is a well-made point. It is probably better if the mover of the amendment, my noble friend Lord Hain, responds to it in detail, but I think the wording is clear. Indeed, as my noble friend said, this takes us beyond the no-deal exit problem because it is for the future. It is meant to govern future arrangements across the border between the UK and Ireland. My noble friend might have more detail on it. I do not think the noble and learned Lord’s point destroys the arguments that have been made. I understand where he is coming from, but the issues we are talking about are for all time. They are important to build on our history and practice up to this point.
The noble and right reverend Lord, Lord Eames, spoke very powerfully, getting across the idea that if there is an opportunity for this House and, indeed, any other place to strengthen the spirit of the Belfast agreement, it should be supported. This is an opportunity to do so. He said that it was about not just the history, but the future of those who work and operate in Northern Ireland and Ireland, and about trade and opportunities. The combination of peace and prosperity, which, after all, is what we all seek at all times, surely is not something the Conservative and Unionist Government will really whip their members to vote against. I hope the Government will be able to accept the amendment and allow us to move forward.
My Lords, I add my thanks to all noble Lords who have contributed to this short but very profound debate. In particular I thank the noble Lord, Lord Hain, for moving the amendment. I think the whole House recognises the important role he played while Secretary of State to help that process gather ground into fruition. It has been a proud part of successive Governments that we cherish and nurture that hard-won peace. It is why we said right at the outset in the future relationship White Paper that the prime objective would be that,
“the UK and the EU meet their commitments to Northern Ireland and Ireland through the overall future relationship: preserving the constitutional and economic integrity of the UK; honouring the letter and the spirit of the Belfast (‘Good Friday’) Agreement; and ensuring that the operational legal text the UK will agree with the EU on the ‘backstop’ solution as part of the Withdrawal Agreement will not have to be used”.
That was very much at the heart of our objective. We are absolutely committed to the Good Friday agreement and that part of it.
I do not take the point the noble Lord, Lord Bruce, made about division out of context, but I am sure he would recognise that the whole thrust of the Government’s and the Prime Minister’s negotiations, and what the withdrawal agreement is about, is seeking to secure the type of border arrangements that my noble and learned friend Lord Mackay referred to and that the noble Lords, Lord Hain and Lord Alderdice, and the noble and right reverend Lord, Lord Eames, and others seek to work towards. Peace on the island of Ireland between Northern Ireland and the Republic of Ireland, and the Good Friday agreement—the partnership between the United Kingdom and the Republic of Ireland in this context—surely must be the red line above all red lines that we need to preserve.
That is why there is the amendment in the EU withdrawal Act making that explicit, which the noble Lord, Lord Kerr, was instrumental in securing. That has been a key part of what Her Majesty’s Government have done when engaging in negotiations on these matters, which was brought to fruition in the withdrawal agreement. Were the withdrawal agreement passed yesterday in another place, we would not need this amendment or this discussion. These are matters for the extremely unwelcome event of no deal.
Some specific points have been raised, which I will try to address. I hope that will help noble Lords in deciding what to do with this amendment. The noble Lord, Lord Purvis, said that this has been emerging over 12 months—an increase of 480 in the current position with the EU. The Government have had to find a way of ensuring that there is no border, from the UK perspective, in the spirit of the Good Friday agreement. Any checks that must be carried out for non-revenue purposes will be done away from the border. HMRC is very familiar with carrying out such checks on that basis.
My noble friend Lady Altmann asked how the plan works to supply work with suppliers. These are unilateral measures—they are not for goods moving from Northern Ireland to the Republic of Ireland, which would be subject to the EU’s common external tariff and single market rules. The only way to avoid a hard border is to commit to entering into discussions with the European Commission jointly to agree long-term measures to avoid one.
The noble Lord, Lord Purvis, asked whether there will be a border in the UK. The Government do not intend to construct infrastructure at the Northern Ireland land border. We will also not carry out any new checks on goods moving from Northern Ireland to Great Britain. HMRC will assess the risks and take a risk-based approach to investigating allegations of breaches of those rules. The noble Lord also asked about the status in terms of the WTO—whether it breaches the MFN model. We are confident that the policy is in line with our WTO obligations, taking into account the unique set of social, political and economic circumstances of Northern Ireland. In developing our policy alongside WTO rules, we have also had to take into consideration a broader set of our international obligations, including those under the Good Friday agreement. Furthermore, as we have set out, these arrangements are strictly temporary. The noble Lord, Lord Kerr, asked us the meaning of “temporary” in this respect; it is a period up to 12 months.
I will come to the point raised by my noble and learned friend Lord Mackay, because it is material to what we have been discussing today. He made the important observation that the amendment as worded seeks an agreement between the UK and the Government of Ireland. Of course, because the Irish border is, as he rightly said, a border between the United Kingdom and the European Union, it would need an agreement with the EU. I think that is the point my noble and learned friend was making. In that context, the way in which the amendment is currently worded would be unlawful because it refers to the Government of Ireland as opposed to the EU.
The noble Lord, Lord Hain, said that this amendment does not put the Government in a straitjacket. It would seek to limit flexibility—no “facilitations”, for example, would rule out future technologies, which is something the EU has specifically agree to look at as a priority once the withdrawal agreement has been agreed. In terms of EU imports into Northern Ireland, not across the land border, the answer to the question of whether tariffs apply is yes. The waiver applies only to goods moving from Ireland to Northern Ireland. This is a temporary measure that would need to be implemented.
The noble Lord, Lord Kerr, asked about potential arbitraging in terms of pricing. Many things affect the price of cars, in terms of tax and currencies, and an individual car from Dublin, driven across to Belfast, would be exempt from the 10% tariff. It would not necessarily be cheaper, but these measures would be temporary. Surely this breaks most favoured nations status, which I have addressed.
I hope that noble Lords will feel that I have addressed a number of the points that were raised. I thank all noble Lords for raising these matters and assure them once again that this has been absolutely up front and central, at the heart of the Government’s strategy to preserve that hard-won peace and that special relationship. This is something that needs to be there only in the event of no deal, which we are all working tirelessly to avoid. I invite the noble Lord to address the point on the wording regarding the Government of Ireland and the European Union, which, on our reading, means that if the amendment were passed, it would be unlawful. If he could address that specifically, I am sure that it would be helpful to all noble Lords.
I thank the Minister for giving way. I have been waiting for a voice to appear during this debate—and it has not. That is the voice of the people of the Republic of Ireland. I live there and would like to get across to your Lordships the incalculable level of anxiety that has been caused to the people of the Republic of Ireland by our apparent indifference about what happens, for example, in the event of no deal. I cannot stress that enough. When noble Lords decide how they wish to vote—I am sure that it will go to a vote—I beg them to consider my neighbours, in particular, as the noble and right reverend Lord, Lord Eames, mentioned, small farmers on both sides of the border who are terrified about what will happen should we, by some ridiculous accident, crash out. I beg the Minister to try to add the voice of the people of the Republic of Ireland to this debate, because they do have a voice in this.
I recognise that and know that the noble Lord is passionate about the Republic of Ireland—as he said, he resides there. There is a fundamental point here: that anxiety would not be necessary if the withdrawal agreement, which was agreed in December, had been passed in the other place last night. That must be the best solution to remove the anxiety to which the noble Lord refers. He also alludes to a very important piece of work, which needs to start immediately—namely, rebuilding those friendships and links, and that partnership, which have served us so well in recent decades, to ensure that the progress that has been made has not been lost. That needs to start immediately. As I say, I take on board very much the point that he has raised.
I thank my noble friend Lord Puttnam for the point he made. I have lots of friends on the island of Ireland, on both sides. I know that there is a real feeling of hurt among citizens of the Republic, given our tangled history—our colonial history, going back centuries—which created enormous distrust and suspicion from Dublin towards us. It was overcome by building trust almost day by day, week by week, over the last 20 years, by Governments of all colours—in particular, those led by John Major, Tony Blair and Gordon Brown, and subsequently. That sense of pain is very deep.
I thank the noble Lord, Lord Bates, for his generosity towards me. What I feel very strongly goes to the point made by the noble and learned Lord, Lord Mackay of Clashfern, whose interventions are always interesting and intellectually testing; I often agree with them. The point is this: we have no idea what sort of future awaits us. We do not know whether we will have an agreement with the European Union at all. There are vociferous voices, some in this House but particularly in the House of Commons, that do not want a deal with the European Union. Therefore the terms of the amendment are absolutely right. The default position that we can fall back on is that we need at least to agree with the Irish Republic in the terms of the Belfast/Good Friday agreement how the border issue is to be managed. I do not see that that is the obstacle in the terms of the amendment that the noble and learned Lord and the Minister have suggested.
I am grateful to the noble Lord for giving way, not least because I confess that I am almost certainly behind the curve here and may well be about to ask a very inept question. But this amendment is directed solely to an international trade agreement between the UK and the European Union. In the event of a no-deal exit, I am unclear whether any future trade agreements that are going to be reached will be with the European Union as opposed to, for example, individual EU countries such as Germany and France. If that were to be the position—I may well be barking up a most irrelevant tree—and there were a future agreement with Germany, as I understand it, the proposed clause would not bite. Is that right?
I would love to vote for this amendment if I thought it would achieve what the noble Lord, the Irish people and indeed all of us want. Unfortunately, it outlaws agreements between the UK and the European Union only in the circumstances narrated. My belief is that if this happens, it will not be as a result of any agreement between the EU and the UK but because there is no agreement between the EU and the UK. This is possibly my blindness, but I do not see how this goes anywhere towards preventing the evil that all of us—I cannot speak for anyone but myself, strictly speaking, but certainly most of us, judging from what I have heard—want to avoid. We want a soft border whatever happens between Northern Ireland and the Republic. I am sure that people in the Republic want that and the Northern Irish people want that—and certainly I and all who love them want that.
Perhaps I may say to the noble and learned Lord that, while we may all want it—in fact, we all say we do—unless we will the means we cannot actually ensure and guarantee it. That is what the amendment does in respect of future trade agreements. The same wording was accepted by this House and by the Government in the other place, and has become part of the withdrawal Act—but that is part of, if you like, the divorce settlement. What we need to do is ensure that the same principles apply to our future trading relationship.
Perhaps I may conclude with something that might help the noble and learned Lord, Lord Mackay. It is what this amendment does not say that is important. This amendment does not tie the Government’s hands, except in terms of the exact requirements for the future, because that is not appropriate in a clause of this kind, which I hope will be accepted and put into the Act. It spells out for new trade the principles that the Government have already accepted in the withdrawal agreement. So it is already in statute, and I am therefore puzzled as to why the Government are not accepting this agreement by approbation.
My Lords, it may be helpful to the House if I explain our hesitation on precisely that point. Section 10(2)(b) of the EU withdrawal Act prohibits regulations creating new border arrangements —that is, arrangements that did not exist before exit day—unless they are in accordance with agreements between the UK and the EU. This amendment would prevent any arrangements unless they were subject to an agreement between the UK and the Government of Ireland. Such an agreement, in our view, would be unlawful for Ireland to enter into, as customs and a common commercial policy fall within the exclusive competence of the EU. I want that point to be clear on the record.
I understand that point. However, under the Good Friday agreement—the Belfast agreement—we are bound and obligated, including with the approval by treaty of the European Union, as the noble Lord, Lord Purvis, said, to agree things with Dublin. That is the way it works. That is part of the Good Friday agreement that has the blessing of the European Union.
I repeat that we have no idea as yet of our future trading relationships with anybody, including across the Irish border—no idea at all. This amendment spells out the principles that have already been accepted in the withdrawal Act, and agreed in statute by the Government. I therefore wish to test the opinion of the House.
23: After Clause 5, insert the following new Clause—
“Publication of trade agreement progress register
(1) For the purposes of subsection (2)—(a) the first reporting period begins with the passing of this Act and ends one week afterwards;(b) each subsequent reporting period is—(i) the week beginning with the end of the previous reporting period, or(ii) if the condition in subsection (4) is met, the month beginning with the end of the previous reporting period.(c) the last reporting period is—(i) the reporting period in which exit day falls, or(ii) if the condition in subsection (4) is met, the reporting period in which any transition period provided for in the negotiated withdrawal agreement expires.(2) Before the end of each reporting period, a Minister of the Crown must publish a report relating to the continuing application of EU trade agreements after exit day.(3) A report under subsection (2) must—(a) specify the trade agreements the United Kingdom is party to as a member of the European Union (the “existing agreements”),(b) for each of the existing agreements, specify whether the United Kingdom intends to sign an agreement that replicates the effects of the existing agreement (the “continuity agreements”),(c) for each of the continuity agreements, specify—(i) whether the agreement has been signed, and(ii) if the agreement has not been signed, what progress has been made towards signing the agreement, and(d) for each of the continuity agreements that has not been signed, specify—(i) the likelihood, in the Minister’s opinion, that the agreement will be signed before exit day, or(ii) if the condition in subsection (4) is met, the likelihood, in the Minister’s opinion, that the agreement will be signed before the end of any transition period provided for in the negotiated withdrawal agreement.(4) For the purposes of subsections (1)(b)(ii), (1)(c)(ii) and (3)(d)(ii) the condition is if the United Kingdom has signed a negotiated withdrawal agreement with the European Union.(5) In this section, “negotiated withdrawal agreement” has the same meaning as in section 13(16) of the European Union (Withdrawal) Act 2018.”
My Lords, this feels like an intermission between two parts of the main feature this afternoon, so I shall be brief. The amendment is even more important given the vote in the Commons last night and the votes likely to come up in the other place. It would provide for a duty on the Government to update the information that they published on 21 February.
I signed up to a weekly trade newsletter from the European Commission at the start of this Bill’s consideration. It includes a weekly digest of the latest news on EU trade, new trade negotiating texts, reports and studies about ongoing discussions, upcoming events and consultations and the EU Trade Commissioner’s statements on related topics. That is the type of information available through the Commission that should be the benchmark by which our Government provides information, not only to Parliament but to civic society and interested groups across the country. But unfortunately, it is in stark contrast with the kind of information that the UK Government publish to date. It is appropriate that we have information on the status of discussions and highlight areas where there are justifiable public differences in approach or policy between our Government and other Governments.
The amendment is not asking for commercially sensitive information or for information that would diminish the ability of negotiators to carry out a set mandate or agreed policy objectives. It is necessary for continuity in the areas that we are discussing.
Also, as we discussed in the previous debate, if there is no deal, we have unilaterally decided to engage in a different trading relationship with countries we currently have arrangements with, and possibly add new tariff lines on goods that are not in place in the current FTAs. The Government seem to think that it is rational to discuss continuity agreements with other countries if there is no deal, apply a new tariff regime with nearly 500 extra tariff lines to businesses trading from those countries and roll over agreements, thereby reinstating the zero tariffs we currently enjoy with those countries by virtue of our membership of the European Union. It is a bizarre approach that the Government think will be beneficial, but it stretches credulity.
At the start of proceedings on the Bill, the Government said that the whole process of moving over agreements would be easy. The noble Lord, Lord Price, the Minister’s predecessor, said that all countries had agreed to roll over agreements but, in fact, they had not. Ministers said repeatedly that all the agreements would be in place by 29 March but many of us knew that that would not happen. The Government denied that there was a problem when it was apparent to everyone that there was, and we knew that those agreements were not going to happen for a number of reasons. Only after frustrated officials leaked information did the Government demur and publish a one-off statement admitting a degree of reality. That is not sufficient and we need to move away from that approach.
The amendment addresses a way forward. It would lead to more information on the trading relationships with the countries we have an agreement with through the EU, but will end if we crash out. The amendment calls for a weekly update before we leave the EU—if we leave—and a monthly update that will form the basis of reporting until the texts of the agreements are shared with Parliament. Unless we have a consistent mechanism, we will have a bizarre situation involving two reporting systems from the Government: one on the progress on continuity agreements and the other on successor or new agreements.
For example, the Government intended to have a continuity agreement with Japan but no reporting undertakings. However, the Japanese have now said they want a successor agreement, which would be covered by undertakings in the Command Paper. But the underlying policy intent has not changed and there will be nothing to stop discussions with a country such as Canada on a continuity agreement then becoming a successor agreement—and there will be two parallel systems of reporting. That is not helpful for clarity or transparency.
Finally, we heard clearly last week from the noble Lord, Lord Kerr, and others who have been at the highest level of negotiations on behalf of the UK, that greater transparency and the involvement of Parliament in approving mandates actively strengthen the UK’s position, not weaken it. In order for Parliament to do its job correctly and engage with civil society groups and those with an interest in trade, or who will be impacted by decisions made in the negotiations, we need a high level of information on progress, rather than simply a descriptor such as “engagement ongoing”, as referred to on 21 February.
That is why I hope that the Government will look favourably on the amendment and, if they cannot accept it, at least establish some principles whereby reporting mechanisms can be more up to date, regular and meaningful than a one-off publication on 21 February. I beg to move.
My Lords, the noble Lord, Lord Purvis, has outlined the reasoning for and detail of the amendment. I intend, therefore, to be brief as we have a number of amendments of greater importance.
It is a shame that the Government will not accept the amendment or work with noble Lords on this side of the House to bring more detail and clarity to the reporting mechanism and progress analysis on rollover agreements. Suffice it to say, Her Majesty’s Government are woefully behind on negotiating, securing and signing agreements that will need to be rolled over. Only a handful of deals are close to completion. Ministers have admitted that they are struggling to make progress with the other trade agreements that Liam Fox has a number of times promised would be ready for the day after Brexit.
These rollover deals represent trade with approximately 70 countries, which constitute around 13% of our exports and 12% of our imports. So far as we know—and that is telling—only four have been signed, nine are off track, 19 are significantly off track, four cannot be completed before Brexit and two are not being negotiated. The Government have refused to confirm how many separate and distinct agreements must be replicated to ensure continuity of trade on existing terms. This is a sensible amendment allowing Parliament to have oversight of the process, and I fail to see how that would or could undermine our negotiating position as we move forward. If the Minister is going to say that it would, will she explain in detail how? We are happy to support the amendment.
My Lords, I thank the noble Lord, Lord Purvis of Tweed, for moving Amendment 23, and the noble Lord, Lord McNicol of West Kilbride, for building on it. The Government agree with the spirit of the amendment that providing updates on negotiations is necessary. It is fundamental to our approach that Parliament remains informed. It is something the Government have always sought to do and we will continue to do so.
Your Lordships will recall that, following concerns raised in Committee in this House, the Government published a paper on 28 February providing comprehensive proposals for the scrutiny of future free trade agreements. Many of your Lordships will also recall the debate last week on future trade agreements. The noble Lords, Lord Purvis of Tweed, Lord Stevenson of Balmacara and Lord Hannay of Chiswick, tabled amendments which facilitated a full debate on the scrutiny of future free trade agreements. In that debate, I again confirmed that, for future free trade agreements the Government will publish their outline approach to negotiations, including objectives, and that that would be accompanied by detailed economic analysis. The EU reports to which the noble Lord, Lord Purvis, referred are on future EU agreements.
We have committed to publishing progress reports after each negotiating round and annual trade reports across all live trade negotiations. In terms of Parliament’s role in this, I confirmed that in future free trade agreements the Government will work closely with a committee of both Houses or a committee in each House, and will provide information on a confidential basis to ensure that Parliament can scrutinise negotiations effectively from start to finish and throughout.
In relation to our trade continuity programme—the agreements that are the subject of this amendment—noble Lords will be aware that the Government published a Written Ministerial Statement on 21 February 2019. It provided an update to Parliament on the status of the continuity agreements. I hope it clarified a number of the points that the noble Lord, Lord McNicol, raised. I also trust that the noble Lord, Lord Purvis, will welcome the approach the Government are taking of informing Parliament each and every time a continuity agreement is signed. There have been seven free trade agreements so far and we will continue to take that approach.
These agreements have been accompanied by a signed or initialled report outlining the material changes between this agreement and the existing EU/third country agreement. These reports provide important transparency and inform not just Parliament but businesses and consumers. We will discuss three of the agreements and the reports later today. However, some of your Lordships may not be aware of what the Government have done above that over the past six months to keep Parliament informed more generally. For example, we have provided five oral evidence sessions to Select Committees by Ministers or senior officials, given 10 written updates to the International Trade Select Committee or the European Scrutiny Committee on trade agreement continuity, and answered seven Oral Questions and 53 Written Parliamentary Questions. I hope that those elements are further tangible proof of the Government’s commitment to keeping Parliament informed. However, while the Government agree with the intention of the amendment moved by the noble Lord, Lord Purvis, I am concerned that having this obligation in statute could have unintended consequences in making it more difficult to keep Parliament informed.
The noble Lord, Lord McNicol, asked what the issues were. They are the kinds of obligations that might arise while we are in the middle of negotiations with our partner countries. For example, if we were to say that an agreement discussion was progressing well and that all the key issues had been addressed, that might cause a negotiating issue on the other side. Equally, if we said we thought that it was performing poorly or that there were issues, that might expose issues that our partner countries were ill prepared to address. If negotiations were going badly, a public statement to that effect would likely prejudice them further, resulting, we believe, in a worse outcome for the UK. Our approach is to provide Parliament with as much information as we can, consistent with managing those risks. It genuinely is about getting the balance right between openness and transparency with Parliament and managing often delicate international negotiations.
I trust that the noble Lord, Lord Purvis, takes reassurance from this explanation and, most importantly, from our continued commitment to ensure that Parliament is kept up to date on the trade agreement continuity programme. I therefore respectfully ask the noble Lord to withdraw his amendment.
I am grateful for the Minister’s response, and for the support of the noble Lord, Lord McNicol. He highlighted that we are likely to have seen only 13% of UK exports represented in the agreements that we have, so there is quite a long way to go. The issue then is whether a one-off published statement would be sufficient. However, I take on board what the Minister said about the other areas, on which there is ongoing engagement with Parliament; that is to be welcomed. I also welcome that in the Command Paper the Government have committed to publish material and to have an ongoing dialogue, both in public and in private, with committees that could well be established. I hope very much that the dialogue will also involve discussions about what type of information is appropriate to be released into the public domain and about doing so in a timely fashion.
On the basis of the Minister’s comments and on the understanding that, if we are to be secure in the information that I think we need on the continuity agreements, we will continue to be persistent on the Written Questions and on the opportunities in Parliament, I beg leave to withdraw the amendment.
Amendment 23 withdrawn.
24: After Clause 5, insert the following new Clause—
“Trade agreement with the EU: mobility framework
It shall be the objective of the Secretary of State to take all necessary steps to secure an international trade agreement with the European Union which includes a mobility framework that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study for the purpose of the provision of trade in goods or services.”
My Lords, on Report your Lordships have already voted through an amendment that creates a process for Parliament’s involvement in setting a mandate for future trade deals and for helping to approve a final deal. Separately, your Lordships have made clear a strong preference for the UK remaining in a customs union. In part, this amendment is the third part of that and is intended to set the scene for the long-term future relationship between this country and the EU. I am grateful to the noble Baroness, Lady Bull, and the noble Earl, Lord Clancarty, for their support for this amendment.
The amendment sets out an objective for a future EU trade deal: a mandate to include,
“a mobility framework that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study for the provision of trade in goods or services”.
That reciprocal nature recognises one important fact: not allowing or enabling EU 27 people to work and trade in the United Kingdom will mean no such rights for UK people in the EU. By voting for this amendment, your Lordships would create the best possible chance for talented men and women in the UK to work, and continue to work, and offer their services within the EU 27, and of course it would be a win-win scenario. On the other side of such an arrangement, we would continue to welcome into this country people who contribute positively to our economy and our social fabric. Their skills make a positive difference.
In Committee, I outlined at some length, and according to the Government’s own advisers, the positive role that people from the other 27 EU countries play in this economy. Noble Lords will be relieved to know that I will not replay those arguments today, in part because in no measure were those facts challenged during that debate. There has been a net benefit to the UK from the activities of EU 27 citizens here. My speech also acknowledged that issues were thrown up by migration in some communities and that those issues have not been sufficiently recognised and dealt with by successive UK Governments. The benefits of those EU citizens working in the UK have also been insufficiently recognised publicly by successive Governments.
In Committee, the Opposition Front Bench spokesman, the noble Lord, Lord Stevenson, spoke about the appearance rather than the reality of unbridled immigration, and that refers back to the point that I have just made. Although I recognise that this perception is very important and that Governments have to do something about it, I do not believe that we should be put off from doing the right thing and supporting the amendment. I hope that, by doing so, we will demonstrate the value that we place on mutual agreement and on the mutual opportunities that we can create for our people, our businesses and our communities.
As for the Government, I did not notice a great warming to my argument in Committee, although I always foster hopes. However, I appeal over the heads of the Front Bench to your Lordships to see the value in this amendment. Supporting it would be a major step towards setting out the mandate for UK negotiators. It would signal what sort of country we want to live in and it would reject one of Mrs May’s red lines. Opposing the amendment or sitting on one’s hands would pander to the false picture of the role of immigration in our society and would impair the UK in so many ways, not least in trade. I beg to move.
My Lords, I have added my name to this amendment because I believe that it is vital to preserve mobility rights and, in doing so, protect some of the UK’s most productive sectors.
I have noted before the relative silence on trade in services in the Brexit conversation. Attention has been focused on the at-the-border issues associated with trade, rather than the more complex behind-the-border issues of domestic rules, regulations and qualifications, which are germane to trade in services. As I have said before, this silence is particularly hard to understand, given services’ contribution to the UK. They account for over 40% of total exports, 80% of the UK’s GDP and four in five jobs across the country. The largest single destination for UK services is the EU, worth £90 billion annually.
If services have been treated like the second son, mobility has been the Cinderella of the story, pushed from the start to the wrong side of what some of us see as a wrong-headed red line. There is, of course, an inextricable link between mobility and services. Services provided in this country, such as tourism or higher education, depend on inward mobility. Service packages linked to goods, such as maintenance contracts, depend on outward mobility. Services delivered in the consumer’s country are often provided on a fly-in, fly-out basis, and the scale of this trade is significant. The CBI reports that employees of just one firm undertook 17,000 trips from the UK to the EU and 10,000 in the opposite direction in a single year.
The complex interdependencies between services, goods and people are exemplified in the outputs of the creative and cultural sectors. I make no apologies for mentioning this once again today. The creative industries are responsible for 10% of UK service exports, are creating jobs at four times the rate of the wider economy and contribute a staggering £101 billion in GVA each year. Their success has been achieved off the back of the freedom to move people and kit across borders without visas, carnets or tariffs, and to bring in talent from the EU as and when needed, often at ridiculously short notice. In the most economically productive parts of the sector, domestic skills gaps mean that up to 30% of staff are recruited from the EU. Continued mobility post-Brexit is the creative industries’ number one priority.
I want to mention the 1.5 million low- and medium-skilled jobs in the UK currently filled by EU workers. A vast number of business sectors rely on this supply stream for vital roles in teaching, health and social care. We already have workforce shortages and requirements are only going to increase. It is estimated that we will need an extra 650,000 care workers by 2035 to look after our ageing population. With virtual full employment in the UK at the moment, it is not clear where these workers will come from.
I know there are differing opinions in this Chamber on the public’s views on mobility. Indeed, there are differing public views, as noted already by the noble Lord, Lord Fox. But can we focus for a moment on the facts, as contained in the Migration Advisory Committee’s report? There is no evidence that immigration impacts on employment outcomes or wages. Also, as we have heard, immigrants contribute more to health and social care services than they consume.
Finally, let us not forget that mobility works in two ways. This amendment would not only protect the UK services sector, the jobs it provides and the tax revenues it generates, it would preserve the rights to travel, work, learn and trade across borders—rights which all the research shows are foremost among the concerns of young people today. I urge noble Lords to support this amendment.
My Lords, I have put my name to this important amendment and I will speak briefly about services in relation to free movement.
The recent no-deal impact statement says that free movement of people supports services. It would be more correct to say that free movement is intrinsic to services. This is certainly true of the creative industries but also of many other areas of the services sector. As a British IT worker said, “We freelancers export ourselves”. As the noble Lord, Lord Fox, said in Committee, “Trade is people”. Yet, despite their massive importance—the noble Baroness has given us the figures—the services sector is, as Sir Ivan Rogers said at the University of Liverpool in December,
“the dog that has largely failed to bark”—
an observation that the noble Lord, Lord Stevenson, also made in Committee. And services continue not to bark. This is deeply worrying.
Of course, Brexit has not yet happened and may still not do so. But it is happening now for British workers who provide services in Europe. One is tempted to call them the canaries in the mine—except we are talking about the endangering of people’s livelihoods. More reports are coming in of projects put on hold and of individual freelancers being told not to bother applying for a job unless they have a European passport, irrespective of the level of qualifications they possess. It is becoming a precondition. For many European companies it will make no difference what kind of Brexit we end up with if it is a Brexit without free movement.
I urge the Minister to look at a video blog doing the rounds on social media. It was recorded in English by an IT agency based in Rotterdam and makes it clear that neither the agency nor their clients can work with you if you are not in Europe—“Europe” of course meaning the single market. The impact statement says that the effects on services will be mitigated by a reciprocal mobility framework. However, in reality, the mobility of British workers abroad will be restricted by the severity of the immigration policy outlined in the White Paper and coming our way in the Immigration Bill—a policy which completely ignores the effect it will have on our service industries and on British workers in Europe. Sir Ivan Rogers said:
“UK service industries’ needs have been sacrificed to the primary goal of ending free movement”.
The amendment also refers to study. Unless we have free movement, I am pessimistic about our membership of Erasmus+ beyond 2020. Look at what happened to Switzerland, which was thrown out of Erasmus when a referendum voted against free movement. After a new agreement, I believe that Switzerland is now back.
There are many important reasons for supporting this amendment. From the point of view of trade, it should be supported not just to protect our valuable trade in services and the increasingly important servitisation aspect of manufacturing, but, importantly, to protect British workers and British jobs.
My Lords, I have not participated on this subject before, but I listened to the persuasive explanation by the noble Lord, Lord Fox. I note the phrase “mobility framework”, which sounds incredibly friendly. But I will urge my noble friend to reject this amendment. This is not because I want to build a wall or because I think perceptions of immigration have been wholly erroneous—although he quite rightly drew the House’s attention to that. The noble Baroness, Lady Bull, said that we need to talk about facts. I will share a couple of facts, which will take only a minute. The population of the United Kingdom is going up by 1,200 a day: that is, 400 from natural increase, 600 from immigration from outside the EU and 200 from immigration within the EU. So we are putting a small town or large village on the map of the UK every week. The ONS projections are that the country’s population will go up by 7 million to 9 million between now and 2040. Manchester currently has 2.5 million people living in it—so we will have to find homes for three cities the size of Manchester.
The UK will by that stage have overtaken Germany as the most populous country in Europe and England will have overtaken the Netherlands as the most densely populated. That is against the background of a new industrial revolution that it is believed will cause 7.5 million jobs to be either lost or radically altered. I quite understand the wishes of the noble Lord, Lord Fox, and the other movers of the amendment, but this had to be looked at in the round of our demographic future. It is not about whether you arrived here recently, or about your colour, your race or your creed. It is about what will enable our society to operate cohesively and well as we see that scale of arrivals, and that scale of change to the way we live and work.
I am sorry to interrupt the noble Lord. How can his argument work when, at the moment, we have unemployment at almost 4% and we need the 3.5 million people from the European Union who are over here now? Given an immigration White Paper that says a minimum salary has to be £30,000, and the remarks of the noble Baroness, Lady Bull, and the noble Earl, Lord Clancarty, how will we manage with a slow-growing economy of just over 1% per year, let alone if it should grow faster? We will have an acute labour shortage.
I think the noble Lord is completely wrong. I have explained that it looks as though we will lose 7.5 million jobs because of the fourth industrial revolution; that is the first thing. Secondly, there is drastic underemployment among people aged over 50 who, when they try to get a job, cannot do so. It is seen that they have only a few years left to work and so are not reliable; youth is what people look for. There are plenty of available older people, but jobs will disappear. That is why I could not support this amendment unless we had done a lot more work on what the mobility framework advocated by the noble Lord, Lord Fox, really meant.
My Lords, I will depart for a moment from the beauty of facts to perhaps more abstract philosophy. We have heard about the movement of people with respect to the creative industries; there is an important point to make here. I look back over a career that has taken me from being a chorister at the Royal Academy of Music to working at the BBC and the Royal Opera House, working with orchestras, dancers and singers. In each of those cases a very important contribution was made by the movement of people.
I believe that one of the most important aspects of intellect and civilisation—I am sure many Ministers on the Front Bench would aspire to these things—is curiosity. To experience the best aspects of curiosity, you need freedom of movement, freedom of ideas and the freedom to travel. I am privileged in the way my life has been staggeringly enriched by the movement of people, whether it is my ability to go to a concert in Vienna next month where my music will be played, and another in Budapest, or people coming here to perform. These are people from whom I have learned so much, people such as György Ligeti or Witold Lutosławski, with whom I studied. This movement of ideas and curiosity is vital to the intellectual and cultural health of our nation.
My Lords, I had no intention of entering this debate other than to support the amendment. However, I must make a point to the noble Lord, Lord Hodgson, because he raised it. What we heard from him is all too familiar. When my mother’s family came to this country 120 years ago as Jewish immigrants from Russia, exactly the same charges were being made about a flood of Jewish immigrants arriving in this country and, potentially, destabilising it and making it a more difficult place to live. Does any noble Lord in this House think that that generation of Jewish immigrants did anything other than contribute massively to the wealth and prosperity of this country? This absurd argument is trotted out every 100 years—mostly from his Benches, I am afraid—yet it is always fallacious and, frankly, very upsetting and quite disturbing.
My Lords, at the heart of this amendment is a concern that the necessary steps are taken to support trade involving the use of services, which increasingly spreads across not just performance, art or culture but work in making cars, machinery and so on, of which it is an integral part. The expertise and knowledge that goes with that involves people and we need to accompany the work they are doing in a way which allows it to function properly. If they are prevented from moving, we as a society will suffer. In addition to the well-made points from the Cross Benches on the artistic and cultural level, at a purely practical level, we need arrangements for the new technologies which the noble Lord, Lord Hodgson, referred to, which will be unable to work if we do not have the services to make them do so. I wish him well with his iPad when it collapses and he cannot get the people to service it because they are unable to travel.
More seriously, the fourth pillar of the GATT treaty, of which we are a member through the EU, and would be a member if we come out of the EU, requires countries such as the UK—it we were independent—to make sure that services are delivered in ways which include the ability to provide rights for working, living and studying. Although studying does not necessarily seem to apply to the right to work and live, it is a very important aspect for us in Britain because one of our biggest export earners is our educational services. If we prevent people travelling to provide the facilities which allow studying and the ability to pass on knowledge—as we would be, if we do not have a proper arrangement for that—we will suffer enormously as a result.
Last night, I was at a meeting involving universities, organised by the Industry and Parliament Trust. There was a palpable concern felt by all the academics present about: the inability to engage with Erasmus and Erasmus+; the possibility that the Horizon 2020 funds will not be available; the lack of technical support for research activity, because the salary level grades were too high; and the inability to attract good postgraduate students to provide the intermediate work in research teams, and to teach. They felt that this was going to mean considerable changes in our university systems. This is the implication if we do not have a mobility framework of the type described in this amendment, which I support.
My Lords, I thank the noble Lord, Lord Fox, for moving this amendment. Before I respond, I should declare an interest, in that my wife came to this country from outside the EU and has contributed over the last 30 years by building a business, and in other ways. Therefore, I have no problem with recognising, as I was invited to do, the tremendous contributions to this country made by people who come to make this place their home. In the same spirit, I recognise the contribution that our European friends have made to this country, in many of the areas referenced already.
The Government are committed to securing the best deal for UK businesses. The White Paper on our future relationship set out a clear proposal for an ambitious future relationship with the European Union, including a reciprocal framework for mobility. The Government recognise the need to ensure we have sufficient mobility provisions with the EU to support our trade agreement, and that we implement an immigration system that works in the national interest, as my noble friend Lord Hodgson sought. The reciprocal framework for mobility that the Government are seeking to agree with the EU will include provisions to support businesses to provide services and move talented people, and to provide visa-free travel for short visits, including for tourists, business travellers and students—the noble Lord, Lord Berkeley, spoke of the value that brings. This was reflected in the political declaration on our future relationship, and the detail of these provisions will be discussed in future negotiations.
The Government will continue to engage extensively with businesses, researchers, trade bodies and universities —as the noble Lord, Lord Stevenson, and the noble Baroness, Lady Bull, referred to—including on elements of a framework for mobility. Following the publication of its White Paper, the Home Office launched an extensive programme of targeted engagement across the UK as it develops the future immigration system. The Government are engaging with sectors and the regions of England and the nations to communicate our proposals and understand their priorities for a future system.
This amendment would restrict the Government’s ability to set the UK’s negotiating position for our future detailed negotiations on our relationship with the EU. In so doing, the amendment risks undermining the Government’s ability to come to the best possible agreement with our European partners as we negotiate our future economic partnership. Moreover, the Trade Bill is not designed or intended to deal with our future relationship with the EU but rather with our future trade agreements with global partners outside the EU.
Turning to the questions of the noble Earl, Lord Clancarty, and the noble Lords, Lord Bilimoria and Lord Stevenson, on what happens with UK participation in Erasmus after Brexit, the UK has committed to participating in Erasmus+ until the end of 2020, when the EU’s current budget framework ends. The political declaration sets out the basis for co-operation in Union programmes, subject to the conditions set out in the corresponding Union instruments, such as on science and innovation, culture, education, development, defence capabilities, civil protection, and space. The UK welcomes the EU’s proposals for the 2021-27 successor scheme to Erasmus+, which was published on 30 May 2018, and would like to discuss the detailed arrangements for third country participation with the EU.
The noble Lord, Lord Fox, asserted that reciprocity is essential, as is mentioned in the amendment itself. The political declaration sets out, in the section on mobility, that the Government are seeking reciprocity between the UK and the EU. Where the UK takes a commitment, the EU will need to do likewise.
The noble Baroness, Lady Bull, asked about the importance of the EU for immigration, particularly of medium-skilled and low-skilled workers. If one refers to the carer example in that rather blunt way—although anyone who has had experience of dealing with a carer would put them among the most highly-skilled people on the planet—one measure that the Migration Advisory Committee uses is earnings. The future immigration system will support the UK economy to access the talent it needs. The skills threshold will be reduced to include medium-skilled workers, too. As a transitional measure, we will introduce a route for temporary short-term workers of all skill levels. This will cater for the seasonal, low-skilled and short-term workers currently coming from across the European Union.
There will of course be other opportunities for the noble Lord, Lord Fox, to press this point. The immigration Bill will come before your Lordships’ House, and there is a White Paper. I appeal to noble Lords to reflect on whether this is the appropriate vehicle and time to press the amendment. With those points, I ask the noble Lord to consider withdrawing the amendment.
My Lords, I congratulate those Peers who have taken part in the debate. The noble Baroness, Lady Bull, the noble Earl, Lord Clancarty, and the noble Lords, Lord Berkeley and Lord Puttnam, all forcefully put the moral as well as economic case behind the amendment. I thank the noble Lord, Lord Hodgson, for mentioning the industrial revolution. If we are to build a significant place in that industry in the world, as the Government’s industrial strategy seeks to achieve, it will not be by closing the borders and stopping people coming in to give us the value of their services, their knowledge and their ability to build it. This will be a global exercise. If we want to lead in it, we have to fling open our doors and let those people into this country.
The Minister of course put a persuasive case on the proposed regime. In essence, we are taking the regime that has been applied to non-EU migrants and putting it on to EU migrants. I have worked in companies that have sought to bring people into this country to do important jobs, and I have to tell the Minister that it is an extremely difficult process. Making it harder for our closest allies and biggest market to bring people in is not the solution to this problem.
The Minister is right to say that there might be other opportunities to put this point, but I am someone who likes to seize the day. I beg to seek the opinion of the House.
24A: After Clause 5, insert the following new Clause—
“UK participation in EU and EEA organisations
(1) The Secretary of State must seek to negotiate an international trade agreement with the EU which will enable the United Kingdom to continue, after exit day, to co-operate closely with the bodies listed in subsection (2).(2) The bodies are—(a) the European Medicines Agency;(b) the European Chemicals Agency;(c) the European Aviation Safety Agency;(d) the European Maritime Safety Agency;(e) the European Network of Transmission System Operators;(f) the European Food Safety Authority;(g) the European Union Intellectual Property Office.”
My Lords, those with keen eyesight will have noticed that this is an amended version of an earlier amendment which was tabled in Committee. It reflects the fact that we have been in discussions with the Government on how best to frame an important issue, which is that a duty and obligation should be placed on the Secretary of State in this case and on the Government more generally to ensure that, if we are in a situation where we are negotiating international trade agreements with the EU—in other words, we are not in a no-deal, crash-out situation—the United Kingdom should try to co-operate as closely as possible with the bodies set out in the list.
In moving Amendment 24A, I draw the attention of noble Lords to Amendment 25A which I regard as consequential since it seeks to remove the clause that Amendment 24A is intended to replace.
We can trace the thinking about this back to an amendment moved in the other place at the time the Bill was being considered on Report in the Commons. That amendment inserted into the Bill a requirement that the Secretary of State or an appropriate authority to negotiate an international trade agreement with the EU that includes working closely with the European Medicines Agency, but it stopped at that point. That raises in my mind—and I am sure in others’—why other agencies and bodies of equal importance across a range of issues should not also be the subject of close negotiation. I therefore thought that it would be appropriate to bring forward an amendment at this stage which tries to list some of them.
I noticed that, in the Chequers statement and the White Paper that followed it, there was in fact a much longer list of bodies which were thought to be appropriate in any future negotiated international trade agreement with the EU. They did not appear in my original list, but they could well be considered. I also discovered that the CBI was keen to draw the Government’s attention to its view that the future relationship with the EU would suffer tremendously if a considerable effort was not made to approach bodies such as the European Medicines Agency and then including the European Aviation Safety Agency, the European Maritime Safety Agency and the European Network of Transmission System Operators in the same manner. The version before noble Lords perhaps still does not catch the full attention of the Government, but I hope that, when the Minister responds, he might suggest that we work further on this to make sure that we have reached an agreed position before we get to Third Reading. If so, I would be happy to work with the Government on that.
The Minister will probably raise the question why paragraphs (f) and (g), covering the European Food Safety Authority and the European Union Intellectual Property Office, are on my list whereas they perhaps would not meet the criteria that are going to be raised by the Government. I would be interested to hear his arguments on this, because many Members of your Lordships’ House would think that the European Food Safety Authority meets all the criteria of the others in the list. Moreover, if we are to make a future of our economy in the new modern world, we are certainly going to need to work closely with the European Union Intellectual Property Office, which has a high reputation for all the work that is involved in trying to regulate and bring forward arrangements for new technologies. I beg to move.
My Lords, I thank the noble Lord for presenting his amendment, and I particularly thank him for the way that he has engaged with officials and with my noble friend Lady Fairhead on this important issue. I can cut to the chase and say that we are probably not going to be that far apart, but let me put some remarks on the record in the hope that we can agree to keep working on this between now and Third Reading.
Ministers from across Government have carried out an extensive engagement on EU exit with businesses, industry bodies and civil society organisations from all sectors of the economy and all regions of the UK. The Secretaries of State at DExEU and BEIS and the Chancellor of the Exchequer co-chair the EU Exit Business Advisory Group to ensure that business is not only heard but is influential throughout the negotiations. The group involves the director-generals and directors of the CBI, IoD, EEF, BCC and FSB. The meetings take place regularly and are included in transparency returns. Since July 2016, DExEU Ministers alone have organised and attended more than 500 engagements with business and civil society stakeholders from every sector of the British economy.
For goods, the UK and the EU want to be as ambitious as possible. As part of this, both parties have agreed to explore the possibility of UK co-operation with EU agencies such as the European Aviation Safety Agency, the European Chemicals Agency and the European Medicines Agency. In addition, the political declaration sets out that the UK will seek to co-operate with the European Maritime Safety Agency and the European Network of Transmission System Operators. As a specific example of this suggested co-operation in the interests of tackling shared safety and security issues, we will continue to co-operate with the European Maritime Safety Agency, including on exchange of information between the agency and the United Kingdom Maritime and Coastguard Agency.
Let me turn now to the core issue that remains between us, which is the position of the EU Intellectual Property Office. The Government are working to find the best arrangement for the UK regarding EU agencies and bodies, but the decision to seek co-operation with an EU agency or body must be made carefully, bearing in mind the context of the UK’s overall aims for the future relationship and negotiations with the EU. As we negotiate our future relationship with the EU, the Government are determined to agree ambitious provisions to help businesses protect their intellectual property rights. Indeed, in the political declaration the UK and the EU commit to establishing,
“a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest”.
In this regard, the UK would seek an appropriate level of co-operation with the EU and other relevant agencies such as the EU IPO. What we can achieve will be subject to the negotiations. However, since intellectual property is a wide-ranging and dynamic area of law, it would be unwise to stipulate in UK law exactly how we want to co-operate with the EU in this given area, as this could have wider implications for the balance of rights and obligations in the future partnership.
Whatever the outcome of the negotiations, I should like to reassure the noble Lord, Lord Stevenson, that trademarks and registered designs are granted on a non-discriminatory basis. That means that, in all circumstances, British businesses will continue to be able to use the EU Intellectual Property Office to protect their trademarks and designs in the EU. The Government want to emphasise that we seek to be ambitious and to obtain the best result possible in the negotiations with the EU on intellectual property. However, as it stands, the amendment would be unhelpful in that it would bind the UK to a particular negotiating approach. The negotiation objectives are complex, and there are vitally important questions which must be weighed in their own right.
In accordance with the commitments made by the Prime Minister, Parliament will have a greater and more formal role in the development of the mandate for the next phase of the negotiations. The Government are more than sympathetic both to the concerns of the noble Lord, Lord Stevenson, and to those of businesses. A thorough engagement with stakeholders and the EU has led the UK to saying that it will seek co-operation with five bodies that I mentioned earlier. This work requires thorough and weighted consideration of how active participation in an agency delivers wider negotiation goals in the context of any associated costs and disbenefits.
I thank the noble Lord for his constructive approach to engagement on this. I believe that we are not far apart from each other, particularly in the light of the progress that we have made to date. As a consequence, I can confirm, as has been the case throughout the process, that I and the lead Minister, my noble friend Lady Fairhead, will be happy to have further discussions to see whether we can reach a mutually acceptable agreement. We will therefore return to this matter at Third Reading. On that basis, I would ask the noble Lord to consider withdrawing his amendment.
My Lords, I thank the Minister for his considerate words and for dealing in detail with some of the issues that I raised in my opening statement. With his agreement, we will see whether we can work further over the next few days to get a common agreement on a wording that can be brought back at Third Reading. I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
Amendments 25 had been withdrawn from the Marshalled List.
Clause 6: UK participation in the European medicines regulatory network
Amendment 25A not moved.
26: After Clause 6, insert the following new Clause—
“Statement on equalities legislation
(1) This section applies where a Minister of the Crown proposes to make regulations under section 2(1).(2) Before a draft of the statutory instrument containing the regulations is laid before either House of Parliament, the Minister must make a statement—(a) as to whether the statutory instrument would, if made, modify any provision of equalities legislation, and(b) if it would, explaining what the effect of each such modification would be.(3) If the Minister fails to make a statement as required by subsection (2), the Minister must make a statement explaining why.(4) A statement under this section must be made in writing and published in such manner as the Minister making it considers appropriate.(5) In this section, “equalities legislation” means the Equality Act 2006, the Equality Act 2010 and any subordinate legislation made under either of those Acts.”
My Lords, we have talked at length about the purpose of the Government’s trade continuity programme, which is to seek continuity of the effects of existing EU free trade agreements as far as possible as we leave the EU. The vast majority of these existing trade agreements, which we are part of as an EU member state, are already in operation in the UK and have been scrutinised by Parliament.
Let me make it clear that, as part of this programme, we do not expect to need to change existing domestic equalities legislation. In the unlikely event that we need to make minor or consequential changes to this legislation, we will aim to ensure that this does not result in reduced protection against unlawful discrimination or diminution of equality rights. However, as indicated in Committee, to ensure suitable transparency and accountability on this important issue, the Government have worked closely with the Equality and Human Rights Commission to develop this amendment.
Amendment 26 specifically provides for a ministerial Statement to be made before any regulations are laid under the Clause 2 power to implement a continuity trade agreement. This statement will outline whether those regulations modify any provision of the Equality Acts 2006 and 2010 or any subordinate legislation made under those enactments. This is in addition to the reports that Parliament will receive under Clauses 3 and 5, setting out any significant differences between continuity agreements and the corresponding original EU agreements.
I trust that this House will accept this as further evidence that the Government have a strong desire to be transparent with Parliament, businesses and the general public about their continuity programme. I beg to move.
My Lords, briefly, we on this side support the amendment and are pleased the Government are committed to protecting equalities legislation. However, I would like to see the Government go a little further and give a firmer promise that trade agreements will not allow any regression of standards as we move forward. I have nothing further to add.
My Lords, I thank the noble Lord, Lord McNicol of West Kilbride, for his support. As I think the House is aware, we are trying to work on standards to agree a mutually acceptable form of words.
I conclude by placing on the record my thanks for the positive engagement that the Government have had with the Equality and Human Rights Commission in relation to this amendment. We have worked closely together on developing it. As the House will have seen from the commission’s briefing, it too is supportive of the amendment. Consequently, I hope your Lordships will support the amendment. I beg to move.
Amendment 26 agreed.
Clause 7: Regulations: devolved authorities and general provision
27: Clause 7, page 5, line 15, leave out subsection (2)
My Lords, I rise as batsman No. 3 today. This group covers Amendments 27, 28, 29, 30 and 36 to 58. I will speak to Government Amendments 27, 29, 30 and 36 to 58 which are minor, technical amendments. I will then respond to amendment 28 tabled by the noble Lords, Lord Stevenson of Balmacara, and Lord Purvis of Tweed, after they have spoken to their amendment.
To avoid the unnecessary duplication of a provision already in place by virtue of the European Union (Withdrawal) Act, Amendment 27 removes Clause 7(2). Clause 7(2) allows for devolved Administrations to make regulations under section 1(1) or 2(1) of the Trade Bill before exit day provided that those regulations do not come into effect until exit day. This is already provided for by the European Union (Withdrawal) Act, which applies this principle to all Bills passed after the Act in the same Session of Parliament. There will be no change to policy with the removal of Clause 7(2); it merely removes an unnecessary and duplicative provision.
For the Bill to work in the way that is intended, the definition of subordinate legislation must include Acts passed in devolved legislatures as well as in the UK Parliament. This is possible by changing the definition of subordinate legislation from that used in the Interpretation Act 1978 to the more detailed one used in the European Union (Withdrawal) Act. This is the purpose of Amendment 29 which ensures that, where possible, the provisions in the Bill respect the important role of the devolved Administrations.
Turning to Amendments 30 and 36, Clause 8(6) in Part 1 of the Bill sets out a list of definitions of terms found in the Bill, such as “devolved authority”. The amendments will move the definition of domestic law from Schedule 1, paragraph 2(7) to Clause 8(6), where it will sit alongside other definitions that relate to the devolved Administrations. This will make the Bill easier for people to follow.
Turning to Amendments 37 to 43 and 45 to 58, Schedule 1 to the Trade Bill allows joint procedure requirements that derive from outside the Trade Bill still to apply to regulations made under Clauses 1 and 2 of the Bill. By inserting the phrase “acting alone” to appropriate places in Schedules 1 and 2, as Amendments 37 to 43 and 45 to 58 seek to do, we are improving the quality of the legislation by clarifying when the devolved authorities are acting alone as opposed to acting jointly with the UK Government.
Amendment 44 ensures that paragraph 6(4) of Schedule 1 works as intended by applying consultation requirements that would otherwise bind Northern Ireland devolved authorities to regulations made under Clause 1(1) and 2(1). These changes are technical in order to tidy up the Bill, and as such I hope your Lordships will support them.
My Lords, it is a test of the abilities of Ministers to be able to breathe life into a list such as that we have just heard. This is a case of drafting amendments beyond the boredom threshold of many people who have to sit through these debates, and I congratulate the noble Viscount on his ability to do that well. I have no objection to the points that he has made and will support them enthusiastically when asked to do so.
In this group, which includes a lot of one-line amendments, is a large amendment dealing with the Sewel convention, which has operated for a number of years in relation to devolved matters in the Assemblies in Scotland, Wales and Northern Ireland—when they meet. It is there because there is concern that the Government have still not bottomed out their arrangements for how all such matters are to be dealt with going forward. While there is no complaint that the convention has not worked well until now, conventions are conventions and there is an argument, at least in principle, that at some point—either now or at some later stage—an attempt should be made to clarify the rules by which it operates and the conditions under which it exists.
I say that particularly because there remains a continuing concern over how the Government attempted to legislate in the withdrawal Bill, in particular on matters being devolved—as they may be under any agreement with the EU or if we crash out—to the UK but for which there was a strongly persuasive case for them going directly to the devolved Administrations. In those circumstances, a great deal of work has been done and a lot of the individual issues have been settled, one way or another. However, a list of matters relating to devolved issues still needs to be resolved so that where they intersect with other geographical locations, there is a workable scheme under which progress can be made.
One issue that arose previously was the extent to which the devolution legislation passed in this House to set up theses bodies could be invoked for issues concerning who has the authority to legislate where a matter is devolved. If a matter is not reserved under the Act, it is devolved, so matters that fall to be devolved must have the consent of the body to which the issue is devolved under the Sewel convention. I am putting this simply; the arrangement is more complex. In the case before us, with trade being such an important issue, we felt that there should be some measure in the Bill to explain exactly the conditions under which the convention would operate and the extent to which it would or would not be concerned. The amendment’s wording is quite clear:
“Regulations made … by a Minister of the Crown may not normally make provision which would be within the devolved competence of a devolved authority”,
unless the Ministers consent. It goes on to say that it would normally be within the devolved competences of the devolved authority, to which conditions are attached. That applies to all areas.
That would have been a very simple introduction to a very simple issue on which I would expect the Minister to respond. However, it will not have escaped the House’s attention that only yesterday, a very similar amendment to another Bill—the Healthcare (International Arrangements) Bill—was moved by the noble Baroness, Lady Manzoor, on behalf of the Government. It covered almost exactly the same territory. It was phrased positively, in a way that the amendment before the House today is not, but it covers the same ground. It said:
“Before making regulations … that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.
It goes on to explain the conditions under which that would operate. The wording is not identical but I would argue that the sensibilities and principles behind this matter are identical to those of that amendment. Does the Minister therefore recognise that, to the extent to which the Government have already considered this issue and legislated for it, it may be in the Government’s best interests to accept Amendment 28, since to do otherwise might cause difficulty for what has already been agreed to in the healthcare Bill? Alternatively, would he agree to meet me and other noble Lords to discuss this, so that we can come back at Third Reading with wording that is consistent with what will soon be in law via the healthcare Bill and appropriate for the Trade Bill?
My Lords, I will also speak to Amendment 28, to which I have added my name. There is not much to add to the persuasive case made by the noble Lord, Lord Stevenson. I welcome the Minister, who is always assured at the crease even as the third batsman. His clarification on Ministers of the Crown acting jointly with devolved Ministers is helpful; Clause 2 has always been a bit of a puzzle for me when it comes to the joint working of the two sets of Ministers.
As the noble Lord, Lord Stevenson, pointed out, our discussions in Committee concerned the areas of interaction where either devolved and reserved competences align themselves clearly or there is dispute as to where they fall—that is, whether they fall fully in the devolved competences of the Welsh or Scottish Parliament, for example, or are reserved. When we discussed the withdrawal Act, the Government put forward all the different policy areas to be repatriated from European Union legislation. There were no issues with 49 of them. It was recognised that a common framework between the UK and the devolved Administrations was needed for 82 of them. The Government said that there was to be further discussion on 24 of them. In 12 areas, there was no agreement; the UK believed that they were reserved but the devolved Administrations, particularly the Scottish Parliament, believed that they fell fully within the devolved competences.
That is important for the Trade Bill because those 12 policy areas include ecodesign and energy labelling, elements of product safety and standards, elements of the network and information security directive, environmental quality, data sharing, food geographical indications, medical devices and state aid. All those aspects are likely to be covered in both continuity and new trade agreements. No degree of resolution on these issues is likely to lock in perpetual constitutional friction during the consideration of whether they are devolved or reserved.
The amendment is a very reasonable one to establish in the Bill that the practices we have adopted in statute elsewhere are reflected clearly when it comes to trade negotiations. Clause 2 of the Scotland Act 2016—the Sewel convention, which amends Section 28 the Scotland Act 1998—states:
“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.
That convention is now underpinned by statute in devolution Acts. We are simply asking for the same level of protection so that regulations arising from trade agreements are provided with exactly the same protection as in the Scotland Act 2016. The implications of the continuity agreement and the regulations that will come from both that and new trade agreements are important. It would be most helpful if the Minister could update the House on where the current discussions are regarding those areas. From the Scottish Government’s correspondence with the Lord Speaker, we know that there is continuing disagreement, but it did not go into much detail on where we are on those areas. In addition to responding to the point made by the noble Lord, Lord Stevenson, the Minister providing further information on the state of play on those aspects—to continue the cricket analogy—would be helpful.
My Lords, I add my support to Amendment 28. I hope not to repeat too many of the points already made.
The Minister may have seen the letter from Mike Russell, dated 11 March 2019, to which the noble Lord, Lord Purvis, referred. He draws attention to the fact that the Scottish Parliament is not prepared to give its consent to the Trade Bill as presently drafted, which is a matter of some concern. It is not just being obstructive; it is taking a measured position based on Clause 2 of the Scotland Act 2016, to which the noble Lord, Lord Purvis, also referred. In his letter, Mike Russell said, as the Scottish Government has pointed out, that many of the 24 policy areas currently identified as potentially subject to such regulations are highly relevant in terms of future trade deals, for example food and feed safety, animal health and welfare, agriculture, environmental policy, food labelling, procurement and fisheries management. It is vital that the Scottish Government and Parliament should be able to protect and advance Scotland’s interests and approach in these areas. It is concerning that the Bill as drafted does not mention either consent or consultation. I hope that the Minister will feel able to look at this matter more carefully before we reach Third Reading.
I will make two further points. First, the wording of Amendment 28, adopting the formula in the Scotland Act, uses the word “consent”. I recall long arguments, when we were debating the European Union (Withdrawal) Act, about whether the word “consent” should be included in its various provisions involving interaction with the devolved authorities. The matter was resolved, in connection with the frameworks in relation to trade, by using the word “consult” instead of the word “consent”.
Personally, I would argue that we should adopt the forms in the Scotland Act, but the fact that the word “consult” was used in the amendment to the Healthcare (International Arrangements) Bill, to which the noble Lord, Lord Stevenson, referred, might be worth some reflection on the Minister’s part. As the noble Lord pointed out, the formula used in Amendment 15 to that Bill, which was an insertion after Clause 4, was:
“Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision”.
That does not go as far as the Scottish Government wish, but at least it is a step in the right direction. As that amendment was moved by a Minister to a closely related Bill—it is part of the general package that we are considering, which is all related to our departure from the EU—I hope that the Minister and his Bill team will give careful consideration as to whether, if the Minister is not prepared to accept the formula in Amendment 28, that formula should be adopted instead. The difference between “consent” and “consult” is quite significant—but consultation, at least, would go a substantial way to meeting the concerns of the Scottish Government in these very important areas.
I shall add one further point. I was in the Grand Committee the other day looking at a statutory instrument that had been made by a UK Minister, and it contained a substantial number of amendments to Scottish legislation made by the Scottish Parliament. I asked why that was being done in a UK SI, rather than being dealt with by the Scottish Parliament. When one looked at the description in the back about consultation, one saw that it was defective, because it did not make it clear that the Scottish Government had been consulted. That was an example of a statutory instrument made by a Minister, on which one would have thought that consultation was essential—indeed, during discussions on the withdrawal Bill I was assured that the Sewel convention would be applied—yet the narrative was incomplete. That may have been simply a technical error, but it illustrates how easy it is to overlook the need for consultation, at least, unless that is on the face of the statute. So I warmly support the points made by the two noble Lords in support of the amendment. If the matter is to be taken away, I hope that the Government will come back on Third Reading with something to address this important issue.
My Lords, I thank the noble Lord, Lord Stevenson, for this amendment, and for his scrutiny of the devolution provisions in the Bill throughout its passage. I also thank the noble Lord, Lord Purvis, and the noble and learned Lord, Lord Hope, for his points, which I will address later. Ensuring that the Bill works for the whole of the UK remains a priority for the Government, so I am pleased to inform your Lordships that yesterday the National Assembly for Wales voted in favour of granting consent to the Bill. I ask that this House consider that when weighing the scrutiny of the Bill in the context of the devolution settlements.
The practical purpose of the amendment is that the UK Government should, as a matter of course, seek the agreement of the devolved Administrations prior to legislating in areas of devolved competence. This is not, in principle, an area of contention; rather, the question is whether this should be on the face of the Bill. I reiterate that the UK Government are committed to not normally using the powers in the Bill to legislate in areas of devolved competence without the consent of the relevant devolved Administrations, and certainly not without first consulting them.
We have respected the role of the devolved Administrations through our programme of engagement with them, government amendments in the other place and my renewed commitment today. The Government will maintain this commitment. More broadly, the UK Government have been working productively and collaboratively with the devolved Administrations on a number of fronts. UK government officials are working with devolved Administration officials to revise the common frameworks analysis and take into account progress on framework areas since March 2018. The Government anticipate publishing a further iteration of this analysis shortly.
During our debates on this legislation, there have been many areas of agreement between us and noble Lords on the opposite Bench. Indeed, the noble Lord, Lord Stevenson, was correct to say in Committee that the use of the powers in devolved areas is,
“more complicated than can be dealt with within the confines of the Trade Bill.”—[Official Report, 23/1/19; col. 724.]
Additionally, the amendment risks setting a precedent whereby competence for policy-making is defined outside the established devolution settlements. It seeks to go further than the convention already recognised in the most recent Scotland and Wales Acts, and could require the court to make a decision on whether or not we were in normal circumstances. I do not believe it is the intention of this House to introduce new legal uncertainty to our statute book.
The Supreme Court made it clear in the judgment on the Miller case that it does not believe it is appropriate for the courts to police the Sewel convention, as it does not lie within the constitutional remit of the judiciary. By inviting this potential judicial scrutiny, the amendment could obstruct the programme of continuity that the Bill seeks to deliver, as the use of the powers could be substantially delayed, to the detriment of the UK as a whole.
I shall now deal with the point raised by the noble Lord, Lord Stevenson, when he mentioned the Healthcare (International Arrangements) Bill. As he knows, I was not involved with that Bill, but I hope that I can help. The amendment to that Bill requires the Secretary of State only to consult. Amendment 28 involves a consent requirement. Those are very different—and this plays into the point made by the noble and learned Lord, Lord Hope. For reasons that we have set out, the consent requirement would create a legal test for the courts, and therefore uncertainty. The powers in the healthcare Bill are different, too. The benefit of the concurrent powers in the Trade Bill is that they allow for the relevant Administrations to legislate themselves where a matter falls under devolved competence, and also allows Ministers of the Crown to make regulations for the whole UK when that makes sense.
As well as the benefits to the devolved Administrations of the concurrent powers, we have made repeated commitments on the Floor of both Houses always to consult the relevant devolved Administration. To take up the point raised by the noble and learned Lord, Lord Hope, about creating legal uncertainty, although the amendment includes the word “convention” in its title, it uses words that appear designed to turn the convention into a legal test. It uses the words “may not normally”, which appear designed to make that a legal rule justiciable by the courts. This could be a substantial block on the use of the Clause 1 and 2 powers, and could lead to delay through litigation, or, ultimately, to a block on the use of the powers if the court judged the situation to be normal. This could allow a challenger the power to withhold consent to the implementation of part of an agreement, meaning that the UK could not bring it into force until the matter was resolved.
Clearly, I would always defer to the noble and learned Lord, Lord Hope, on these issues, but I had a slight anxiety when I heard the Minister say from the Dispatch Box that UK Ministers would be allowed to make regulations where they considered that that “made sense”. That is not language that we have become accustomed to in devolution practices over the past 20 years. UK Ministers could say almost all the time that it made sense for them to bring forward such regulations, especially in the context of trade agreements that they themselves had negotiated. But that is not the point. The point is that the legislative competences are not those of UK Ministers, but those of other bodes. All we ask is that the practices that have been developed, which have now been adopted in the Scotland Act—it contains language recognising that the Parliament of the United Kingdom “will not normally legislate”—be continued. That is now well established in statute. I cannot see why the Government say that it would cause problems in a separate statute, because it is already in statute.
I listened carefully to what the noble Lord said. He referred to the point I made about making sense, and legislative efficiency after consultation with the devolved Administrations is what we are looking for. So in effect, I believe that we are on the same side of the fence. But given that we are getting into some quite detailed discussions and debates and my job is to give answers, it may be helpful if we go into such detail outside the Chamber with a further meeting. I have not finished yet, but I hope that so far I have given some reassurance to noble Lords.
Returning to my opening point, the vote yesterday in support of a legislative consent Motion by the National Assembly for Wales is a significant endorsement of the Trade Bill, and I am pleased that the UK Government have been able to meet all of the Welsh Government’s requests to improve the Bill. The Assembly’s vote recognises the UK Government’s meaningful efforts in ensuring that the Bill works for the UK. I hope that I have provided sufficient reassurance on the Government’s commitment, and the potential unintended consequences of this amendment. Therefore, I ask the noble Lord not to press Amendment 28.
I return to the word “normally”, to which the Minister drew attention. I recognise that in its judgment in the Miller case, the Supreme Court made it quite difficult for anyone to take a case before the court based on the use of the word “normally”. Indeed, the convention itself is not justiciable. In a way, that shows the sense of the formula that is used in the Healthcare (International Arrangements) Bill because that does not use the word “normally”. It just states that the Secretary of State “must consult”. If one is asking for consent, a higher level of co-operation is a useful qualification. “Normally” requires consent. But consultation is a sine qua non of proper legislation where the devolved Administrations are concerned. I would have thought that the formula in the amendment would not give rise to the same concern, which is why I suggest that the Minister considers very carefully whether, in this Bill, it would not be appropriate to adopt the same provision.
I appreciate what the Minister says about the consent of the Welsh Assembly, but it is a matter of some concern: the Scottish Government are particularly sensitive in relation to these issues and it would be a pity to say to the Scottish Government that just because the Welsh have agreed the Scots should just accept the provisions. They are making their own arguments based on what they know is important to them. Therefore, I hope that the Minister will pay very close attention to the point made.
My Lords, this has been a useful little debate and I am grateful to the noble Viscount, Lord Younger, for raising all the points that he did and giving such a full response. But may I check with him that he said—it will be in Hansard—that he would be happy to have further discussions about the issue? I appeal to him and his good sense. Given that we are already in debate with him and his officials on a number of issues, this could with advantage be added to the list. It is not that we have any particular reason to want to bring it back in any aggressive form at Third Reading, but the issues raised are worth further discussion, particularly because the Government have chosen to legislate in the Healthcare (International Arrangements) Bill and that, irrespective of whether or not it has direct read-across to the Trade Bill, will have set a standard. We have to be careful that we are not either missing or exceeding that in a way that would be detrimental to any future discussions on trade.
I am willing not to press this amendment if we can be absolutely clear that there will be further discussions, because this point has not been fully resolved. But I give an undertaking that this is in no sense trying to make things difficult for the Government. It would be worth going a further round to get this right.
A further meeting, principally with those who raised points in this debate, would satisfy us. I do not think that we are far apart on this, but if we can work out exactly what we want said in a way that would advance the chances of getting a better result for all concerned, that would be the right way forward.
Amendment 27 agreed.
Amendment 28 not moved.
Clause 8: Interpretation of Part 1
Amendments 29 and 30
29: Clause 8, page 6, line 12, leave out from “has” to end of line 13 and insert “the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018;”
30: Clause 8, page 6, line 33, at end insert—
“(6) In this section, “domestic law” means the law of England and Wales, Scotland or Northern Ireland.”
Amendments 29 and 30 agreed.
31: After Clause 10, insert the following new Clause—
“Assessment of anti-dumping or anti-subsidy measures
In determining whether the application of an anti-dumping or anti-subsidy measure meets or does not meet the economic interest test under Schedule 4 to the Taxation (Cross-border Trade) Act 2018, the Secretary of State or TRA must give special consideration to the injury caused by the dumping of the goods, or the importation of the subsidised goods, to a UK industry and the benefits to the UK industry in removing that injury.”
My Lords, Amendments 31 and 32 are in my name and those of my noble friend Lord Kinnoull and the noble Baroness, Lady McIntosh of Pickering. Amendment 31 relates to the presumption in favour of adoption of trade measures and it will be familiar to noble Lords from Committee.
The Taxation (Cross-border Trade) Act sets the overarching rules under which the UK’s new Trade Remedies Authority will operate. The Act does not have a clear or explicit presumption in favour of adoption of trade measures akin to the EU equivalent, the Union interest test. Considering whether measures are in the interests of the UK involves taking into account five different sets of interests. In doing that, unlike the EU approach, the Act does not give priority or special consideration to the interests of the complainant industry. That special consideration gives the EU test a presumption in favour of adoption of measures, which is absent in the UK Act. While government amendments on Report of the Taxation (Cross-border Trade) Act improved the wording around the economic interest test, and Ministers have privately assured manufacturers that the intention is that there is a presumption in favour of adoption of the measures, the words contained in the Act fall short of such a presumption.
I thank the Minister for helpful meetings with me and my noble friend Lord Kinnoull on this issue, and I hope that, in her reply, she will be able to clarify the presumption that the TRA will apply when it conducts the test. An explicit reference to special consideration of the need to remove injurious dumping would be particularly helpful.
Amendment 32 relates to the way that the detailed rules for the operation of trade remedies will be scrutinised. These rules will have profound impacts on UK manufacturers’ ability to level the playing field when overseas competitors do not play by the rules. Many of those rules about the operation of trade remedies will come through secondary legislation as a result of provisions in the Taxation (Cross-border Trade) Act. Trade policy generally, including specific issues such as these, is of such importance that we should be discussing it frequently in your Lordships’ House—a sentiment that I believe the Minister might also support. Amendment 32 would require the statutory instruments to be affirmative instruments, to be discussed and approved by resolution of both Houses. I am interested to hear from the Minister about the opportunities that your Lordships’ House will have to debate important trade policy issues. I beg to move.
My Lords, I added my name to these two amendments and I will be brief. I agree with every word that my noble friend Lady Brown just said. I add my thanks to Ministers and the Bill team, who have been very gracious and given of their time generously to discuss these issues. I have nothing to add to what my noble friend Lady Brown said about Amendment 31, about which I wholly agree.
I also agree with what she said about Amendment 32, but I have one more point to add. It arises out of the report of the Constitution Committee into the Trade Bill. Talking about the formation of the Trade Remedies Authority, it states:
“While we recognise the pressing timescales and uncertainties concerning Brexit, in constitutional terms, creating and empowering an important public body in such a manner is inappropriate”.
I very much agree with that assertion. I therefore regard Amendment 32 not only as a mechanism for debate but as a partial cure for the problem that the Constitution Committee has unearthed in its report. I therefore see it as being an attempt to try to somewhat address that problem. Can the Minister comment on that and, if she feels the amendment should not be agreed, how we should address the itch that the Constitution Committee identified?
My Lords, I will make three very quick points. First, we need to be clear that Amendment 31 simply tries to attach the words “special consideration” rather than “take account”. It is not that all the factors are not there; they are, and they will be considered. The point is that special consideration should be given to this. It is not necessary to do that, because the nature of the structure in Schedule 4 would suggest that that precisely would be the case. I cannot therefore support the amendment. Temperamentally, I want to support Amendment 32, but I fear that in practice there will be many such regulations and it would not be the best use of time for this House and the other place repeatedly to engage in approving regulations of this kind.
I am interested in whether the Minster has anything to add on the potential announcements today on tariffs, which we foreshadowed last week. It is said that all the existing remedies presently imposed by the European Union would be continued, even under a no-deal scenario, by the United Kingdom. I want to inquire—the Minister might choose to reply by letter—to what extent it will be sustainable for us to do that when the remedies will have been assessed in relation to the European Union as a whole, rather than to the United Kingdom itself. For example, an increase in imports leading to injury to an industry might well be applied by the European Union in relation to an industry in Italy or Spain, but it would not be appropriate for such a remedy to be applied in the United Kingdom. That would very rapidly be open to challenge if we do not get the Trade Remedies Investigation Directorate, which is up and running in the Department for International Trade, on the case, so that we can, if we have to—I hope we do not—apply remedies on the basis of an investigation with UK, rather than EU, data.
My Lords, I thank the noble Baroness, Lady Brown of Cambridge, and the noble Earl, Lord Kinnoull, for tabling their amendments and clarifying in advance their concerns with me and the ministerial team.
Before I respond fully to the amendments, I will take the opportunity to draw your Lordships’ attention to the steps that the Government have taken to ensure that the UK is ready to deliver a fully operational trade remedies system by exit day. The Government have brought forward legislation under the Taxation (Cross-border Trade) Act 2018 to establish the UK’s trade remedies system in the event that we leave the EU without a withdrawal agreement. These regulations also temporarily confer trade remedy functions on the Secretary of State until the Trade Remedies Authority, the TRA, is legally established.
Staff already recruited to DIT with the intention of transferring to the TRA on Royal Assent of the Bill, including those trained as investigators—the key function of this body—will carry out their functions as the Trade Remedies Investigations Directorate within the department. The directorate started work on 6 March and will deliver trade remedies functions in house pending legal establishment of the TRA.
Let me repeat that this arrangement will only be temporary. As noble Lords will appreciate, this is a necessary and pragmatic operational contingency to ensure continuity of protection for UK businesses. This must remain the Government’s priority. It is right that we plan for all eventualities, including where, for whatever reason, the TRA is not legally established under the Bill by 29 March.
As the Secretary of State explained in his previous letter to the International Trade Committee on 14 February, these regulations ensure that we can deliver a fully operational trade remedies system for any eventuality, but we are clear that the TRA remains the long-term sustainable way of delivering an independent trade remedies function. Our commitment to establishing the TRA as a non-departmental public body at arm’s length from government has not changed. We must have an independent TRA in the near future.
To ensure consistency, the Trade Remedies Investigations Directorate will follow the same policy and procedures, as set out in the relevant legislation. Most importantly, the directorate will carry out objective investigations and make evidence-based decisions for consideration by the Secretary of State on whether measures should be put in place. Indeed, noble Lords will see that the relevant legislation laid before the other place last week sets out how the TRA will operate as an independent arm’s-length body. But if this preferred approach is not possible by exit day, the legislation also includes the necessary modifications to confer functions on the Secretary of State. These modifications will automatically expire when the TRA is legally established, with no need for further amendments. The message is clear. The UK will act decisively to address trade that causes unfair injury to our domestic industries. As soon as the TRA is established, subject to the will of Parliament, it will of course take on responsibility for delivering this function.
The Government are committed to tackling unfair trade and injurious practice in all sectors, including the ceramics sector, which the noble Baroness, Lady Brown, is interested in. It is one of the UK’s most iconic industries that exports world-class pottery around the world. The call for evidence concluded that existing EU trade remedies should be maintained for the UK’s ceramics industry. We will continue to operate a trade remedies regime that will provide a robust safety net for our industries and will enable the UK to be a leading proponent. I hope that this reassures the House that we are taking the right steps in the national interest, pressing ahead with the Trade Bill as planned while ensuring that necessary operational contingency preparations are in place if required.
I turn to Amendments 31 and 32. The policy framework that the TRA will be responsible for operating is already established in the Taxation (Cross-Border Trade) Act 2018. With regard to Amendment 31, let me be absolutely clear: that Act already sets out a presumption in favour of measures in all dumping and subsidies investigations. As I explained to the House in Committee, the Government amended the Act during its passage to emphasise this point and clarify that the TRA must consider,
“the injury caused by the dumping of the goods, or the importation of the subsidised goods, to a UK industry in the goods and the benefits to that UK industry in removing that injury”.
Furthermore, the Government will be publishing guidance on the economic interest test, which will reiterate this presumption and specify that the TRA must make a recommendation to impose measures unless it can show that anti-dumping or anti-subsidy measures would have disproportionate impacts on the wider UK economy.
I will repeat the reassurance I gave the noble Baroness, Lady Brown, in Committee: this presumption will apply when the TRA conducts the test. It has not been possible to mirror exactly the wording of EU regulations in our statute book. There was a very helpful intervention by my noble friend Lord Lansley. “Special consideration” has a specific meaning under EU law but does not have the same meaning under UK law. However, we are absolutely clear that we share the intent of giving that special consideration to the injury caused to UK industry by imports of dumped or subsidised goods. The language in the Act achieves the same outcome of an explicit presumption in favour of anti-dumping and anti-subsidy measures.
Amendment 32 also refers to the Taxation (Cross-Border Trade) Act 2018, which has already been considered and passed in the other place. This House will have seen that the provisions in the secondary legislation contain a great deal of technical detail. That is why it was accepted that the negative resolution procedure is the appropriate scrutiny mechanism. Indeed, the Delegated Powers and Regulatory Reform Committee of this House has considered the provisions of the Act and did not comment on the use of the negative procedure.
The noble Earl, Lord Kinnoull, asked about parliamentary scrutiny. We have considered the right balance between primary and secondary legislation. We want the UK to have a robust, responsive, WTO-compliant trade remedy system. The technical provisions set out in secondary legislation must be compliant with WTO law. That means that we need the flexibility for the UK to adapt to frequent developments in WTO case law. Anti-dumping and anti-subsidy measures are some of the most frequently litigated issues at the WTO. We laid secondary legislation before the other place on 5 March to have details of the framework ready to be operational as an example. The existing procedures will allow for parliamentary scrutiny of this secondary legislation.
My noble friend Lord Lansley asked whether all existing EU trade remedies would be moved over. Our commitment is to make sure that the UK will apply only those EU trade remedies that matter to UK industries. I hope that this will reassure my noble friend about the potential issue with WTO compliance that he highlighted.
I trust that my responses have provided reassurance to your Lordships and that the noble Baroness, Lady Brown, will withdraw her amendment.
I thank the Minister for her detailed response. It is very encouraging to hear of progress with the implementation of the trade remedies system and with the work being done to ensure that, should we need it, provisions will be in place to support industry in this way on exit day should the TRA not be legally established by that point.
It was also good to hear the Minister say that the Government intend that we will act decisively on injury to domestic manufacturers, such as our ceramics industry, and I thank her for the reassurance that the intent of the Act is that there will be—I shall put it in inverted commas—“special consideration” for hurt to manufacturers when the economic interest test is applied. I am very comfortable with the strong reassurance she has given.
On Amendment 32, I accept the argument that there will be a large number of SIs containing a great deal of technical detail and that that is the reason for the negative procedure. I still have concerns that some very important issues will come through under the negative procedure. Trade remedy issues will be some of them, so it is with some reluctance that I shall not move Amendment 32. I beg leave to withdraw Amendment 31.
Amendment 31 withdrawn.
Amendment 32 not moved.
Clause 11: Collection of exporter information by HMRC
Amendment 32A not moved.
Clause 12: Disclosure of information by HMRC
Amendment 32B not moved.
33: After Clause 12, insert the following new Clause—
“Collection of export information on international education
(1) The Office for National Statistics (or anyone acting on their behalf) must collect and publish detailed information on the export earnings from non-UK-domiciled students which should include—(a) fee income,(b) living cost expenditure,(c) research and other similar contracts,(d) education products and services for non-UK-domiciled students,(e) education related travel and tourism services,(f) tourism expenditure by visitors linked to non-UK-domiciled students. (2) For the purposes of subsection (1) non-UK-domiciled students includes all non-UK domiciled students studying in the United Kingdom, including but not limited to—(a) all non-UK-domiciled students studying at education providers on the Tier 4 sponsor list including schools, English language providers, further education colleges, embedded colleges, private providers and universities,(b) all non-UK domiciled students studying on a short-term study visa at a provider with approved accreditation including those on student mobility programmes.(3) Information published for the purposes of subsection (1) must be broken down with regard to—(a) the regions and nations of the United Kingdom,(b) levels of study including school, further education, higher education, and English language provision,(c) subjects which facilitate entry into jobs on the shortage occupation list.(4) Within one month of publication of information under subsection (1), the Secretary of State must publish a target for future export earnings from non-UK-domiciled students which, as a percentage of the global market, must equal or exceed the level reported by the Office for National Statistics.”
My Lords, in the absence of my noble friends Lord Bilimoria and Lord Hannay, I shall move Amendment 33. This is yet another amendment on trade in the cultural industries, which have become a very important export sector, with the distinctive feature that some of the exports, in particular educational services, bring people to this country rather us sending goods to other countries.
The amendment seeks to improve the statistical basis for estimating the value of overseas students coming to this country. At present, the way it is estimated is not very satisfactory. Statistics are produced by the ONS, which calculated it as £7.2 billion, and by the DfE, which calculated it as £19.9 billion. That is quite a big gap. The aim of the amendment is to improve the statistics, making it easier to set an export target for this sector. There is a clear need for complete and unambiguous information. Although the students do the travelling, the educational services are a valuable export in which this country has an important place. We have targets set, but it does not make very much sense to set targets until one has clarity about the metrics. This amendment is about the metrics and getting the target right. I beg to move.
My Lords, I was added as the fourth batsman. I have only one thing to add to the very clear presentation made by my noble friend Lady O’Neill, which is that noble Lords will note paragraph (f) of subsection (1) of the proposed new clause. It would mean that some estimate of the tourism expenditure of visitors to students studying in the UK would be included in the statistical information. This information is being collected in Australia and the Australians have discovered that it is quite a big economic driver. That has led them to feel that they have a jewel in the crown of educational exports, and they are trying to grow it. The more we understand the numbers and statistics of the mighty business we have, the more we would be likely to feed it and help it. I bring that to the House’s attention.
My Lords, the Government welcome international students, who make a valuable contribution to the UK economically and culturally. They bring greater diversity to university and college campuses and an international dimension to the experience of all students. They also stimulate demand for courses and add to the UK’s impressive research capacity. In the longer term, they offer the prospect of productive business, political, cultural and research links. Of course, they also bring welcome income to UK universities and our wider economy.
We are pleased that the UK remains a highly attractive destination for international students. UK higher education institutions hosted almost 460,000 EU and non-EU students in 2017-18, the highest number on record. There remains no limit on the number of students who can study here, and there are no plans to introduce one.
In the Higher Education and Research Act, there is provision for a faster and simpler route for high-quality new providers to enter the sector and gain degree-awarding powers. This allows the sector to diversify and strengthen its international offer, providing even better opportunities to students from all over the world.
The Department for Education currently publishes data on the value of UK education exports annually. These statistics cover education exports and transnational activity relating to higher education, further education, schools, English language training and products and services. I am grateful for the comments made by the noble Lord, Lord Fox, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady O’Neill. It is important to look at the statistics, and I will start by giving a view of the ones that we already publish. The latest education exports data publication was dated January 2019. It set out that total education exports and transnational education activity were estimated to be worth almost £20 billion in 2016. International students at higher education institutions contributed £11.9 billion in exports through living expenditure and tuition fees alone that year. This accounts for around 60% of the total value of education exports and activity.
The fee income data is compiled by the Higher Education Statistics Agency—HESA—which noble Lords will have heard of, and cover finance data records. Living expenditure for EU and non-EU domiciled students is estimated using the Student income and expenditure survey. The statistics are new and are in an experimental data stage in a classification of official statistics. This is because the data and underpinning methodology come from various sources with differing degrees of quality and maturity. For example, there is good data on the fee income generated by the number of international students studying at our universities, but there is no systematic collection of revenue from transnational education activity. This must be derived through a variety of estimation techniques. Similarly, not all elements of international education expenditure are available on a regional basis. The data proposed through this amendment is therefore either already used as part of the export data that we publish or is unavailable, in which case we cannot legislate to make it so. But we share the desire for better data on education exports to support our ambitions in this area.
As announced by the Chancellor in a Written Ministerial Statement today, the new international education strategy will be published in due course. It will set out the Government’s ambitions for growing the UK’s education exports. This will include making sure that we optimise our position in the market for promoting a competitive and welcoming offer for international students. So the important statistic is extremely important. With that explanation, I ask that the amendment be withdrawn.
I thank the Minister for a very interesting reply and, of course, for the publication of the new document, which I look forward to; I understand that it is due imminently. To get the statistics right is not a simple matter: they interact in quite difficult ways with the metrics that we use for our own domestic students and for quality control. It is surely important to get this right and, since I hear the note of optimism that an attempt will be made to get it right, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
34: After Clause 15, insert the following new Clause—
“Conditions of commencement
The provisions in Parts 1 to 3 of this Act may only come into force if—
(a) a withdrawal agreement and a framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018, or(b) the House of Commons has passed a motion “That this House approves of the United Kingdom leaving the European Union without a withdrawal agreement and a framework for the future relationship”.”
My Lords, when I first joined your Lordships’ House, I was given tutelage in the ways and proceedings of this House. Indeed, I had a watcher who held hands with me, as it were, right through my opening period. One of the first things he said to me was, “When you get a new Bill, look at the commencement clauses, because they tell you how serious the Government are about their intentions”. Hidden in the interstices of the commencement clauses there is often a very good clue about how things happen. Some of the powers in a Bill come into effect immediately the Bill receives Royal Assent. Quite a few do not, and for them usually various elements come forward under regulatory procedures which are sometimes difficult to guess but which are very important to follow through to their logical conclusion. Nine years ago that was seared on my brain as an important thing, and I have never had the opportunity to do anything about it until today. I am therefore delighted to bring forward my first amendment on a commencement clause—and what an amendment it is.
As we speak, Divisions are happening in another place that will bear to some extent on the future of this Bill in its entirety, because consideration is being given to the question of whether there will be no deal. We have anticipated some of the thinking on that by wondering whether it would be sensible to give regard to the question of whether this Bill in its entirety had a commencement at all in relation to whether the other place had actually resolved that measures that would be affected by the legislation contained in this Bill had been given satisfactory agreement by the House of Commons.
There are two parts to this. Either a withdrawal agreement and framework for the future relationship with the EU must have been approved by a resolution of the House of Commons in a move by a Minister under Section 13(1)(b) of the European Union (Withdrawal) Act 2018, or the House of Commons must have passed a Motion that it approves of the United Kingdom leaving the European Union without a withdrawal agreement or a framework for a future relationship. These are quite tight and narrow constraints on the ability of this Bill to come into force. They are important because, in a sense, they tie the whole of the debates about our future relationship and trade in the widest context to the question of what exactly the Government intend for the future of the country in relation to the withdrawal Act.
The whole process can take effect only on the formal passing of a Motion or Motions by the House of Commons. This may not be the night on which such a Motion takes place. I understand that the amendments selected for discussion today do not fulfil the criterion set out in the withdrawal Act as being binding on the Government, although they will give us a clear view about where things will go. But we have been saying this for ages. Indeed, my credibility is shredded by the number of projections I have given to my family about what I thought was happening, all of which have turned out to be wrong. I am not proposing to go further tonight than simply saying that activity is happening that may have a bearing the future of this amendment. With that, I recommend to your Lordships’ House that we seriously consider this amendment. If necessary, I would like to test the opinion of the House.
My name is on this amendment, which seems to be an extremely sensible one. I support what has just been said. I had no mentor when I came into this House, and I had no one to hold my hand, so, as will be obvious to all, I am lost, particularly on the details of commencement. But it seems to me that one of the virtues of this amendment is that it would rule out proceeding in the event of an accidental no deal. An accidental no deal is still a real possibility. But any form of no deal would be an act of self-harm, which I hope will be rejected very strongly in a very few minutes.
I was very sorry to see that some members of the Government were proposing to vote for self-harm, which is very odd. The doctrine of Cabinet responsibility seems to have fallen by the wayside on an issue as important as this, where it is impossible to have a government line which all the Cabinet would stick to. It seems to me that, since Sir Robert Walpole’s time, the defining characteristic of British Cabinet government is Cabinet responsibility shared by a group of friends who can command a majority in the House of Commons. It seems that both of these conditions are not met. I am not sure how relevant that point is to the amendment in my name and that of the noble Lord, Lord Stevenson of Balmacara, so I will say merely that I support it.
My Lords, as we move towards the final stages of Report, it is right that we reflect briefly on why we have this Bill. Primarily it is here in case there is a no-deal Brexit. It includes many of the provisions that the Government told us would have to be in place before exit day for preparedness in case there was a no-deal exit. That was the intention in January 2018, when the Commons first debated this Bill, and we received it in September.
It was still the Government’s intention then that there would be plenty of time to put this legislation on to the statute book in order for there to be a framework for the slew of continuity agreements that we would all be considering. So far we have three, representing 0.3% of UK exports, and we will be debating them later today. If we are going in the direction of putting this Bill on the statute book in order to facilitate a no-deal Brexit, it is right that it is an intentional decision by the House of Commons that that is indeed the path that we should go down.
If the noble Lord, Lord Stevenson, presses this amendment, we will support it, because it is unconscionable, to use the Attorney-General’s word, that we will somehow at this stage find ourselves inadvertently in a no-deal scenario. However, we will have to reflect to some extent on what the House of Commons decides. The noble Lord, Lord Kerr, is absolutely right: not only has Cabinet collective responsibility now been ditched but there is not even any kind of collective responsibility within the Treasury. Today, the Chancellor talked about the shock to the economy and the deeply damaging elements of a no-deal Brexit. His deputy disagrees with him and will be in a different Division Lobby in the other place this evening.
Therefore, whatever the House of Commons decides, it is right that we provide a degree of certainty in this legislation, so that we cannot accidentally go down the path of a no-deal Brexit. If this Bill is to be enforced to provide that framework, it will have to be on the basis of a majority in another place specifically asking for it, and that is why this amendment is justified. As I said, if the noble Lord presses it, we will happily support it.
My Lords, I profoundly believe that we should not leave the European Union without a deal in place, but making this amendment to the Bill would not prevent that. Such an outcome would have to be stopped in another place with legislation or through the revocation of Article 50, and this amendment does not bear on that. Unfortunately, in that unhappy event, the amendment would remove from us the power to implement, for example, the agreement that has been reached with Switzerland. It is not ideal, but it is there. It has been entered into in good faith by us and by the Swiss on the basis that, in the event of no deal, we have to have that measure available.
I am afraid that it is also not true, as the noble Lord, Lord Purvis of Tweed, suggests it is, that the Bill is entirely occasioned for the eventuality of no deal. It enables us, for example, to establish the Trade Remedies Authority—we have just heard about the valuable work that it is doing—and it implements the Agreement on Government Procurement, which is a very large-scale issue for British services companies and others which want to be able to bid internationally under the WTO for such contracts. The amendment would stop this Bill coming into force, and we would therefore be unable to ratify the international Agreement on Government Procurement in the way that we were intending, and it would deprive businesses of the opportunities that that would provide. Much as I heartily concur with the intention behind the amendment, it would not have the effect that is sought.
I just want to make a point about the ability to have the regulations on the Swiss agreement. The Government are not using the likely regulatory powers under this Bill to ratify the Swiss agreement, so I do not think that the noble Lord is accurate on that point. They are using the CRaG process, not this Bill.
My noble friend the Minister may know what their intentions are but, as I understand it, in a number of instances—and I think the Swiss are among them—they will use what are effectively not just bilateral agreements with the Swiss but the opportunity to roll over the EU-Swiss agreements into UK-Swiss agreements, and the power here is available for that purpose.
I thank the noble Lords, Lord Stevenson of Balmacara and Lord Kerr of Kinlochard. I am particularly delighted to be at the Dispatch Box to answer the inaugural commencement amendment from the noble Lord, Lord Stevenson.
We have had extensive debates on the Trade Bill, during which I believe all sides have acknowledged the importance of its provisions. I do not believe that this House disagrees with the underlying principles of the Bill. As my noble friend Lord Lansley pointed out, it is not just for a no-deal situation; it is to cover whatever the outcome of the negotiations with the EU might be. I hope and trust that your Lordships will acknowledge the need for any responsible Government to bring forward these provisions.
The Trade Bill covers four important areas for consumers and businesses. This House has debated them and is well rehearsed in them, and I do not propose to repeat the key ones in detail here today. The fundamental point which I hope your Lordships will consider carefully is that, if we do not enact this Bill in a timely fashion, that will have a direct and adverse impact not just on consumers but on businesses.
I am very aware that there are activities elsewhere at this hour that might have a bearing on this debate, but I remind noble Lords of the comment of my noble friend Lord Lansley that, if passed, this amendment could have very serious consequences for the UK. If a vote is passed in the other place ruling out no deal but no Motion is approved in favour of a withdrawal agreement, the default position at law is that the UK will leave the EU at 11 pm on 29 March. As a number of your Lordships have said, it would be an accidental no deal; it is not what the Government want, which is to have a deal. However, if that happens, the effect of the amendment would be to prevent the commencement of the substantive provisions of this Bill, and I do not believe that that is the intention of the noble Lords who are proposing it. Nevertheless, that is what would happen. The UK would leave the EU without a deal and without any of the protections offered by the Bill. I do not believe that anyone wants to see that.
The noble Lord, Lord Kerr, commented that the amendment would rule out an accidental no deal. We do not believe that it would; it would merely have the unintended consequence that, if there were to be an accidental no deal, the provisions would be prevented from coming into force. If the other place voted tonight in favour of no deal, the requirements in paragraph (b) proposed in the amendment would have been met. This would mean that the precondition for commencement would be satisfied, so the amendment would be rendered redundant by events.
Furthermore, as far as I am aware, no business groups or other representative organisations have indicated support for the amendment. In fact, many support the need to enact these provisions. For example, the CBI has stated that it remains,
“strongly supportive of the initiative to set up a Trade Remedies Authority”.
Similarly, the British Ceramic Confederation has stated:
“It is clear that we need a TRA, and it is certainly welcome that the Bill establishes one”.
We have heard cross-party support for continuity in both Houses of Parliament, and the International Trade Select Committee also confirmed that it struggled to find a witness who would speak against it.
I acknowledge, and understand, that passions and views are strongly held about whether this country should remain a member of the EU or leave. However, this should not distract from the core role of Parliament and of your Lordships’ House to ensure the best for this country’s people and businesses. No matter how strongly your Lordships feel about these issues, ultimately it must be a matter for the elected representatives in the other place to make a decision about the steps this country takes at this important moment in our nation’s history. This should not distract us from this Bill’s content, the importance of these provisions and the desire of consumers and businesses to see these vital provisions enacted.
During scrutiny of this Bill, the House has shown itself at its best, holding the Government to account and working with the Government to improve the legislation. However, for the reasons I have stated, we do not feel that there is a call for this amendment. I would therefore hope that the noble Lord, Lord Stevenson, feels able to withdraw instead of pressing to a vote.
I am grateful to the Minister for responding as she has done. I pay tribute to her and her team for the considerable work they have done in trying to make sure that we get through this Bill and try to iron out the differences between us.
I think we will disagree on this. I have received information that the other place has voted 312 to 308 against a no-deal exit. We at least have that information in our hand as we think further about how this amendment might play out.
In response to the noble Lord, Lord Lansley, for whom I have a great respect and whose knowledge and experience have been very useful to the Committee and have informed our debates throughout the process of this Bill, we have already joined the GPA. That has gone through. The regulation-making power in the Bill is to make regulations about future changes in the GPA, not about the GPA itself. I disagree with him that we need this at this time. It may be necessary in future, but there may be other opportunities.
As has already been said, most of the establishing framework for the TRA is in another Bill already in place. As the Minister said, the Government have already introduced the regulations that give effect to the powers necessary for that to operate effectively. They are already through the House. The actual power in this Bill is not necessary. Many of its powers are not. They were appropriate earlier but not so now. I do not think we are talking about the substance of this. In some senses, this is a bit of a wake-up call to the Government, as well as a broader message to the wider community. On that basis, I would like to test the opinion of the House.
35: Before Schedule 1, insert the following new Schedule—
“COMMITTEE ON TRADE AGREEMENTSRecommendation in relation to ratification1_ The report under section (Parliamentary approval of trade agreements)(6) must include—(a) an account of the Committee’s consultation with—(i) each devolved authority,(ii) public bodies, businesses, consumer groups, trade unions and non-governmental organisations which, in the opinion of the Committee, have a relevant interest,(iii) the public, and(iv) equivalent bodies in the other signatory states;(b) an assessment of the qualitative and quantitative impact of the proposed trade agreement on—(i) the economy, broken down by the different parts of the United Kingdom and different regions of England,(ii) the environment,(iii) human rights standards,(iv) labour standards,(v) individuals with protected characteristics under section 4 of the Equalities Act 2010,in the United Kingdom;(c) an assessment of the qualitative and quantitative impact of the proposed trade agreement on—(i) the economy,(ii) the environment,(iii) human rights standards,(iv) labour standards,(v) individuals with protected characteristics under section 4 of the Equalities Act 2010,in any other state which is a proposed signatory to the agreement.2_ The report under subsection (6) of section (Parliamentary approval of trade agreements) must include an assessment of the extent to which the provisions of the proposed agreement conflict with, or are consistent with—(a) the provisions of international treaties ratified by the United Kingdom;(b) the provisions of the Sustainable Development Goals adopted by the United Nations General Assembly on 25 September 2015; (c) the provisions of the United Nations Guiding Principles on Business and Human Rights;(d) domestic human rights law;(e) international human rights law and international humanitarian law;(f) the United Kingdom’s obligations on workers’ rights and labour standards as established by the United Kingdom’s commitments under the International Labour Organisation’s fundamental conventions including but not limited to the Declaration on Fundamental Rights at Work;(g) obligations relating to animal sentience by which the United Kingdom is bound, or any principles relating to animal sentience to which the United Kingdom adheres, and any provision in domestic law (including retained EU law) relating to animal welfare standards and the welfare of animals in the production of food and the wider supply chain practice;(h) the principle of eliminating poverty;(i) the United Kingdom’s environmental obligations in international law;(j) the offences in section 1 of the Modern Slavery Act 2015 (slavery, servitude and forced or compulsory labour);(k) the sovereignty of Parliament;(l) the legal authority of UK courts;(m) the rule of law;(n) the principle of equality before the law.”
Amendment 35 agreed.
Schedule 1: Restrictions on devolved authorities
Amendments 36 to 44
36: Schedule 1, page 11, line 28, leave out sub-paragraph (7)
37: Schedule 1, page 12, line 3, after “Ministers” insert “acting alone”
38: Schedule 1, page 12, line 7, after “department” insert “acting alone”
39: Schedule 1, page 12, line 17, after “authority” insert “acting alone”
40: Schedule 1, page 13, line 29, after “Ministers” insert “acting alone”
41: Schedule 1, page 13, line 34, after “Ministers” insert “acting alone”
42: Schedule 1, page 13, line 41, after “Ministers” insert “acting alone”
43: Schedule 1, page 13, line 47, after “department” insert “acting alone”
44: Schedule 1, page 14, line 1, leave out “department” and insert “devolved authority”
Amendments 36 to 44 agreed.
Schedule 2: Regulations under Part 1
Amendments 45 to 58
45: Schedule 2, page 15, line 18, after “Crown” insert “acting alone”
46: Schedule 2, page 15, line 21, leave out “or by the Welsh Ministers acting jointly with a Minister of the Crown” and insert “acting alone”
47: Schedule 2, page 15, line 24, leave out “(other than when acting jointly with a Minister of the Crown)” and insert “acting alone”
48: Schedule 2, page 15, line 29, after “Ministers” insert “acting alone”
49: Schedule 2, page 15, line 35, after “Crown” insert “acting alone”
50: Schedule 2, page 15, line 38, after “Ministers” insert “acting alone”
51: Schedule 2, page 16, line 1, after “Ministers” insert “acting alone”
52: Schedule 2, page 16, line 4, after “department” insert “acting alone”
53: Schedule 2, page 16, line 8, leave out sub-paragraph (5)
54: Schedule 2, page 17, line 20, after “Crown” insert “acting alone”
55: Schedule 2, page 17, line 23, after “Ministers” insert “acting alone”
56: Schedule 2, page 17, line 26, after “Ministers” insert “acting alone”
57: Schedule 2, page 17, line 29, after “department” insert “acting alone”
58: Schedule 2, page 17, line 32, leave out sub-paragraph (5)
Amendments 45 to 58 agreed.
Schedule 4: The Trade Remedies Authority
59: Schedule 4, page 19, line 27, at end insert “following a report from the International Trade Committee of the House of Commons”
My Lords, it is a pleasure to be the back-marker on Report. Amendment 59 inserts text into the schedule that sets up the process for appointments to the Trade Remedies Authority, so that the chair can be appointed by the Secretary of State,
“following a report from the International Trade Committee of the House of Commons”.
In effect, this includes the chair of the Trade Remedies Authority in the list of appointments that are subject to pre-appointment scrutiny.
I do not do this lightly. There are about 1,000 senior public appointments, only 50 of which are subject to pre-appointment hearings by Select Committees. The Cabinet Office guidance on this was amended then reissued in January. Paragraph 8 sets out three criteria, the first of which says that such appointments should be for,
“posts which play a key role in regulation of actions by Government”.
This clearly must be satisfied as it determines one of the essential roles of the Department for International Trade in investigating and recommending trade remedies. Secondly, the appointments must be,
“posts which play a key role in protecting and safeguarding the public’s rights and interests in relation to the actions and decisions of Government”.
This instance may not be about the public, but certainly it ticks the box for the business community, which would regard the TRA as one of the most important bodies impacting on its interests in relation to the actions of the Government. Thirdly, the guidance says that appointments subject to pre-appointment hearings must be,
“posts in organisations that have a major impact on public life or the lives of the public where it is vital for the reputation and credibility of that organisation that the post holder acts, and is seen to act, independently of Ministers and the Government”.
Noble Lords will recall that, at a much earlier stage, we debated whether this body should be independent. The Government, having looked around the world, decided that the Trade Remedies Authority should be independent, and seen to be independent. We have three ticks in the box. This is clearly an important appointment; for the Department for International Trade, it must be regarded as the most important appointment. I do not know of any other posts that it is presently asked to scrutinise prior to appointment. This seems a perfectly reasonable way to proceed; nor does it constrain Ministers too far, as we have discovered. Ministers have to consult and liaise with Select Committees, respond to them and take account of what they have said, but they do not have to do what a Select Committee says and in quite a number of instances have not done so. Ministers can still make the appointments that they consider to be the right ones. I do not feel that I am holding the Government back from doing what they need to do. I am just encouraging them to include this appointment in that list. I beg to move.
I support the noble Lord, Lord Lansley, and congratulate him on the succinctness with which he has made his point. I have been confused for some time as to why the department might resist this. He has made the points exactly as I would have done. This is a key role with a public-facing responsibility and will hold the Government to account on issues of great importance. Indeed, it is the only body that the DIT will have as a marker; it behoves the department to raise the TRA to the appropriate level so that it is seen to have the importance that the department claims for it. For these reasons, it is absolutely right that we have an established routine that the person selected by the Minister to be the chair of this body—we are not expecting the same to happen for the chief executive or more junior staff, just the chair—should be seen by the International Trade Committee. As he says, it is a courtesy in some senses because the Minister can still appoint should they wish to do so. I support the amendment.
My Lords, Amendment 60 is in my name and those of my noble friend Lord Kinnoull and the noble Baroness, Lady McIntosh of Pickering. I also support Amendment 59.
The UK needs a strong and independent Trade Remedies Authority with a balanced membership to investigate alleged dumping and subsidy cases and to recommend remedies. Schedule 4 to the Trade Bill defines the membership of the TRA and its governance. As I have said before, and as the noble Lord, Lord Lansley, emphasised in moving Amendment 59, while both Clause 10 and Schedule 4 make the independence of the TRA a clear objective, this does not sit entirely comfortably with the chair and the non-executives being appointed entirely at the discretion of the Secretary of State.
The governance model of the Office for Students in the Higher Education and Research Act 2017 seems to offer a good model for delivering both independence and balance, and this is the model that has been used in drafting this updated amendment. It would require the Secretary of State to have regard to the desirability of members having between them experience in a number of relevant areas, including UK manufacturing, trade unions, consumers, regional economic growth, regulatory systems and international trade disputes.
The Government have suggested that the TRA should be managed by trade remedies experts rather than by stakeholders with vested interests, in order to be independent. However, the chief executive designate has already told a Commons Select Committee that she is not a trade remedies expert. A properly balanced group of non-executive stakeholders, supported by expert executives, could be effective, independent and balanced. I look forward to hearing from the Minister how the Government will ensure the combination of independence and balanced and relevant expertise that this important body requires.
My Lords, Amendment 60 is also in my name. I too have problems with the TRA as currently constituted, in that arguably it lacks independence and balance. It is in looking for independence and balance that the amendment has evolved. Amendment 59 very much deals with the independence point, and on that basis I strongly support it.
In Committee, I said that independence is important, because the TRA needs to be seen to be not a mere cipher for the British state but something which has its own life. There is a problem when one looks at Schedule 4 and sees that the chair is appointed by the Secretary of State, as are all the non-executive directors. The Secretary of State gets the chance to approve the CEO. The non-executive directors will always be in the majority and the Secretary of State has the power to remove them. On top of that, paragraph 34 of Schedule 4, entitled “Guidance”, says that the TRA must have regard to the Secretary of State’s guidance, which seems to me to mean instructions. It seems to be wrongly titled. Therefore, I worry that the independence bit of my beef is not coped with sufficiently. I look forward to hearing something from the Minister to assuage my concerns.
Balance is incredibly important. This cannot be an effective body if there is no balance—balance of experience and background. The point is obvious. Nowhere in Schedule 4 do I see anything that gives rise to a feeling that there would be balance, but I look forward to being corrected on that point.
My Lords, I rise simply to say that I do not particularly agree with Amendment 60. It is necessary to have expertise in the TRA. As I said on an earlier occasion, I am not convinced that having a completely separate authority is sensible. The European Union seems to do a very good job on trade negotiations. That, as I recall from my experience as a civil servant, a Minister and a businessperson, was done in-house. I ask the Minister to pause before agreeing to these amendments without thinking about them a little further.
My Lords, I thank noble Lords for their continued engagement with the work to establish the Trade Remedies Authority. I trust that I am able to provide reassurance that we are taking proper steps to set up this important body in the right way.
I turn first to Amendment 59, tabled by my noble friend Lord Lansley and the noble Lord, Lord Stevenson of Balmacara. We listened carefully to the points made by them and other noble Lords in Committee about how best to ensure that the senior leadership is as independent as possible. This includes the appropriate role for the International Trade Committee. That is why I am pleased to announce that the Secretary of State is content for the International Trade Committee to conduct a pre-commencement hearing of the TRA chair. This hearing will take place after the Secretary of State has appointed the TRA chair, but before the chair has taken up their position. I further reassure the House that this offer of a pre-commencement hearing by the International Trade Committee will apply to all future TRA chairs, not just the first one. We hope that this will ensure that the ITC has the appropriate role in scrutinising any individual appointed to that position.
I turn now to Amendment 60, for which I thank the noble Baroness, Lady Brown of Cambridge, and the noble Earl, Lord Kinnoull. There are three key issues at hand that I would like to address. The first point is independence. Having had discussions with the noble Baroness and the noble Earl, I will say that independence really matters. We are committed to creating an independent TRA that all our stakeholders can trust and that will be seen as an independent body by third countries. We have taken clear steps to achieve this, including establishing it as a non-departmental public body in the first place, which is different from other organisations around the world, and giving it the appropriate separation from Ministers. We are ensuring that it has an independent board. That is why the Secretary of State will be required to follow the tried and tested Cabinet Office Governance Code on Public Appointments when appointing all non-executive TRA board members.
As this House will be aware, that code enshrines the independence of those members by explicitly stating:
“All public appointments should be governed by the principle of appointment on merit”.
TRA board members must be appointed based on their ability, not the stakeholder group or interest that they represent. The Commissioner for Public Appointments will regulate all non-executive appointments to the TRA, providing independent assurance that the Secretary of State follows the code’s strict rules on making such appointments based on merit and the public interest. While TRA non-executives may well have had experience representing certain stakeholders, we believe that that alone cannot be the reason why they are appointed. To do otherwise would jeopardise the true independence of the board, particularly as this is an investigative body.
The noble Baroness, Lady Brown, referred to the Higher Education and Research Act 2017. We do not feel that it is appropriate to draw parallels between the TRA and the Office for Students. The primary function of the Office for Students is to protect the interests of students, whereas the TRA has been set up to protect UK industry from unfair trading practices, which it will do by undertaking independent and impartial technical investigations into whether these practices have occurred. While this will ensure that manufacturers are protected against unfair trading practices, the TRA has not been set up specifically to protect the interests of those manufacturers or other groups.
The second point relates to skills and experience. I assure your Lordships that we are committed to making sure that the members are best placed to oversee this new function. That is why, when appointing the non-executive members of the TRA, the Secretary of State will have regard to ensuring that the board has the right balance of skills and range of experience. I will do more than pause, as requested by my noble friend Lady Neville-Rolfe. She has wide experience of sitting on boards in both the public and private world, and it is having that right balance and mix of skills and experiences that is most important. Moreover, this process does not happen behind closed doors. To ensure transparency, the requisite skills and experience for each non-executive appointment will be set out in individual TRA job descriptions that will be published in accordance with standard practice.
The noble Earl, Lord Kinnoull, raised a question about the TRA having regard to guidance, and we have included clear statutory restrictions on the Secretary of State’s ability to issue guidance to the TRA. That includes setting out specific circumstances in which the Secretary of State can publish guidance. For example, they cannot publish guidance in relation to a specific case. That is also why the Secretary of State must consult the TRA before publishing guidance, and explicitly have regard to its independence, impartiality and expertise.
These skills and experience requirements include, among others, strong and effective leadership, astute business awareness and an understanding of the complex domestic and international trading environment which the TRA will be operating in. However, we believe that specifying a detailed list of desired experience in statute risks restricting the Secretary of State’s ability to appoint individuals, and the chair and the board’s ability to appoint executives with other relevant experience not detailed here. It suggests that only those criteria listed in legislation are desirable, and may inadvertently displace others. That could create a problem if, in the future, a TRA non-executive was needed to fill a skills or experience gap not covered on the list.
On stakeholders, let me reassure the House that we understand the need to ensure that stakeholders’ interests are accounted for properly. We have also taken clear steps to ensure this. That is why the TRA chair’s job description, and terms and conditions, make clear that he or she will be expected to communicate with stakeholders and incorporate their perspectives into TRA board discussions where appropriate.
We specifically recognise the importance of the devolved Administrations in building the UK’s independent trade policy. That is why we have made several key commitments to ensure they, too, have an appropriate relationship with the TRA and DIT. These include sharing the TRA’s annual report with each devolved Administration, seeking suggestions for the optimal way to recruit TRA non-executives, and suggesting to the TRA chair that the board undergoes specific devolution-focused training. The Welsh Government of course have passed a supplementary legislative consent Motion in the Welsh Assembly, indicating their support for the TRA provisions in this Bill.
As we are reaching the end of Report, I will make some concluding remarks. This stage has provided us with a valuable opportunity to test and improve the detail of this important Bill. I thank your Lordships for that and look forward to Third Reading next week. Having said that, I respectfully ask the noble Lord to withdraw his amendment.
My Lords, I am most grateful to the Minister for her response to this short debate. It is fitting that we have further evidence in her response of the constructive and positive way in which Ministers have listened to the debate and sought to meet the concerns raised. That has been evident throughout our discussions.
I apologise—I should have declared an interest. I am the UK co-chair of the UK-Japan 21st Century Group, and in that context Sir David Wright, who is the chair-designate of the Trade Remedies Authority, was a member of that board and a former ambassador to Japan, so I know him. It will be evident from those who know him that the purpose of this discussion is not in any way to question his suitability for the post—far from it—but rather the process by which his successors are to be appointed in years to come. In that context I was grateful for the specific nature of the assurance my noble friend was able to give.
The difference between a pre-appointment hearing, in circumstances where the Secretary of State is minded to appoint somebody who is then seen by the Select Committee, and a pre-commencement hearing, where the Secretary of State has appointed somebody but the post has not been taken up, is a distinction without a difference in circumstances where the Secretary of State could proceed in any case. There is a benefit in such appointments being taken up by those seen by Parliament as well as by the Executive, not least having been seen positively in the context, not of trying to second-guess the Secretary of State’s choice of the right person but of understanding at the outset, before somebody takes up the post, how they propose to approach it, their suitability for the tasks, and what objectives they are looking for—what kind of outcomes they are hoping to achieve. In that respect, what my noble friend was able to say adequately and fully meets the purposes that I was raising in my amendment, so I beg leave to withdraw it.
Amendment 59 withdrawn.
Amendment 60 not moved.