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Trade (Disclosure of Information) Bill

Volume 808: debated on Thursday 17 December 2020

Second Reading (and remaining stages)

Moved by

My Lords, on 31 December, the UK will regain full control of its borders at the end of the transition period. Irrespective of the ongoing negotiations with the European Union regarding a free trade agreement, the Government have been clear that there will be additional requirements for people and goods traveling to the EU. I am sure that your Lordships will appreciate that since the Trade Bill will not pass until next year, it is vital that we ensure there is no gap in the Government’s ability to share the information that they already collect and hold in order to mitigate and manage any temporary friction from the end of the transition period. That is exactly what this Bill achieves, substantially replicating amendments made to the Trade Bill—namely, Clauses 8 through 10.

I know that my noble friend Lord Lansley and the noble Lord, Lord Stevenson, have asked what the differences in clauses are between this Bill and the Trade Bill. As I have already mentioned, the clauses are substantially the same but there are minor differences. Most notably, Clause 4 of this Bill provides for the expiry of Clauses 1 to 3 if, in the same Session in which this Act is passed, an Act resulting from the Trade Bill is passed which in the opinion of the Secretary of State contains provisions that have the same or similar effect to Clauses 1 to 3. This sunsetting is necessary to ensure the statute book is kept in good order. This clause will therefore provide that Clauses 8 to10 of the Trade Bill form the permanent basis for data-sharing. This Bill also includes an explicit reference to the DAs on the face of the Bill, alongside references to investigatory powers legislation and sentencing, which were absent from the clauses in the Trade Bill. However, these changes will be made to the Trade Bill clauses in due course, and amendments are already tabled and appear in my name on the Marshalled List.

This Bill will allow the effective use of government data to ensure the smooth flow of goods and services after the end of the transition period. The Cabinet Office’s Border and Protocol Delivery Group is leading work to ensure that our borders are robust and efficient, establishing a border operation centre to monitor and manage flow through the border and support the mitigation of any disruption. This Bill ensures that the Government make best use of the data they already collect and hold and in so doing reduces inefficiencies and bureaucracy for business. It will support better services by permitting data on the flow of international trade to be shared and analysed, helping to identify and resolve the root cause of any disruption. It will also allow the Government to use data more effectively to plan new controls at the border, ensuring that security is maintained, new requirements are introduced seamlessly and any temporary friction is properly mitigated.

The Government recognise that this Bill is being proposed on an expedited schedule and that many noble Lords attach great importance, rightly and properly, to data security, as demonstrated by a number of thoughtful previous contributions on this subject. I reassure the House that this Bill contains measures to ensure that the permitted use of data that it facilitates is both discretionary and specific. I stress that the Bill does not create any additional powers to collect data; it applies only to the public bodies specified and only when those public bodies are satisfied that data use would support a Minister’s functions relating to trade. It creates an offence of unlawfully disclosing information and ensures that data-sharing remains subject to GDPR and DPA protections.

With regards to the expedited schedule of the Bill, I emphasise that all these measures have already been subject to substantive scrutiny in this House and the other place during the passage of the Trade Bill, through the relevant clauses, without further amendment. The Bill contains a sunset clause that will ensure consistency with the powers being delivered through the Trade Bill. Clause 2(9) provides the power for a Minister of the Crown to add public authorities to the data-sharing gateway and therefore has the potential in a narrow sense to alter the executive competence of the devolved Administrations. I therefore make the same two commitments to the devolved Administrations on data-sharing as I made in Committee on the Trade Bill.

First, the data shared under Clause 2 will be used by the border operation centre being established by the Cabinet Office to develop strategic insights into the flow of trade and functioning of the border. The Cabinet Office is committed to sharing strategic analysis related to flow of trade where it will support the more effective management of flow through the border. The Cabinet Office will continue to work closely with the devolved Administrations to ensure that relevant analysis and information can be shared to support devolved functions relating to trade and management of the border. Secondly, the UK Government commit to consulting the devolved Administrations before any devolved authorities are added to the list of specified authorities that can share data under Clause 2.

In breaking news, I am pleased to say that the Senedd and Scottish Parliament have both granted legislative consent, and I am grateful to my colleagues in the Welsh and Scottish Governments, who have worked at pace to consider this Bill and schedule the necessary votes. However, due to the accelerated timetable of this Bill, the Northern Ireland Executive have not brought forward a legislative consent memorandum, and the Assembly has not voted on legislative consent. I reassure noble Lords that the Government will continue to engage with the Northern Ireland Executive on this matter.

In conclusion, this Bill is necessary to ensure that the Government can use their information properly to minimise disruption at the border following the transition period. It is limited in scope and contains specific safeguards to prevent inappropriate or excessive sharing of data. This will, in turn, underpin the delivery of a world-class border fit for the UK’s future as an independent trading nation, protecting our country, strengthening our economy and growing our international trade. I beg to move.

Since this is both a Second Reading debate and, in effect, a debate on all stages, I hope noble Lords will forgive me if I make points that would be more relevant to a Committee discussion, rather than talking mainly about the principles of this short but important Bill. I completely understand that the Government are, rightly, taking steps to ensure that there is no gap in the availability of powers to share information between HMRC and other public authorities at the turn of the year, and I fully support the Bill.

On 9 January, I think, we will reach the third anniversary of the Second Reading of the original Trade Bill. I and the noble Lords, Lord Purvis of Tweed and Lord Stevenson of Balmacara, have been involved in each of the Trade Bills we have dealt with, so in a sense this is the son of the second Trade Bill. I hope that we can have it all done and dusted by the end of January, as was indicated in another place yesterday. That would be a relief to us all.

What is urgent is not necessarily controversial; this Bill is urgent and non-controversial. I think we all agree on the purposes we are pursuing: to make sure that the border operations centre can manage the flow of trade down to a commodity level on things such as food and medicines, in real time, in the early part of next year. I think we all agree that that is essential. We are also all aware that some of the changes reflected in this Bill, compared with the Trade Bill as introduced here, are useful in particular to make it clear that the devolved authorities are among those with which HMRC can share its information for the purposes of these functions.

I turn to some of the rather more nitty-gritty questions. I would be grateful if my noble friend could address them when he replies, if they are not too detailed. I would completely understand if he felt the need to reflect and respond in writing, not least because we will reach Clauses 8 to 10 of the Trade Bill on day three of Report, which is scheduled for 6 January. There will be a further opportunity for any questions to be addressed then, because, as my noble friend said, the substantive permanent provisions relating to the disclosure of information are those that will, I hope, be enacted in the Trade Bill, which we will discuss early in the new year.

For those following this debate who perhaps do not have all the papers to hand, if one really wanted to look at this, one would have to look at the Bill we are addressing today, as well as the Trade Bill, which is currently on Report, and the Marshalled List to see the amendments my noble friend the Minister tabled for consideration on Report, which we will reach in the early part of the new year.

My first question is very simple, but I am afraid it may be esoteric. This Bill’s structure, in at least a couple of respects, is different from what my noble friend the Minister proposes by way of amendment to the Trade Bill, which we will consider on 6 January. As a former Leader of the House of Commons, I was responsible for the Office of the Parliamentary Counsel. I realised that the nature of parliamentary counsel is that they, more than anybody, realise that the writing of legislation is never perfect, and that it is always necessary to see whether one can further improve drafting. However, it is slightly odd that we are in a position where amendments to the Bill were tabled in November, then in December we consider a Bill to achieve the same effect where the drafting is different.

This is particularly true in two respects. There is a saving provision in Clause 1(6) of this Bill, which states:

“Nothing in this section authorises the making of a disclosure which would … contravene the data protection legislation, or … be prohibited by the investigatory powers legislation.”

The language of the amendment that has been tabled to the Trade Bill is

“save that the powers conferred by this section are to be taken into account when determining whether a disclosure is prohibited by those provisions”.

This Bill is different. It says:

“In determining whether a disclosure would do either of those things, the powers conferred by this section are to be taken into account.”

I hope that the meaning is exactly the same, but I do not understand why the drafting is different.

In that respect, I have a substantive question: what does it mean to say, “taken into account”? Legislation should be clear. The Explanatory Notes say in terms that Clauses 1 and 2, which say effectively the same thing, mean that this legislation would not authorise the making of a prohibited disclosure under data protection legislation or investigatory powers legislation. What does it mean, then, to “take into the account” the “powers in this section”? Does it mean that they can be made? If the answer is that they cannot, why is the saving provision in the Bill? I would be grateful for my noble friend’s reply on that point.

Secondly, in more detail, the reference to the investigatory powers in this Bill is different from that in the Trade Bill, which refers to specific parts and chapters of the investigatory powers legislation, not the investigatory powers legislation as a whole. Why is that the case?

The noble and learned Lord, Lord Judge, raised a point on other legislation that also relates to the Trade Bill and to this Bill at Clause 2(2), which refers to the functions relating to trade, “among other things”. The noble and learned Lord asked why are we including this: what are these “other things”? Should we not be told what they might comprise? I do not require the Minister’s response on this as it is a drafting matter, but it would be very useful if the message was consistently sent back to suggest that the phrase “among other things” should be avoided where possible.

Those are all the points I wanted to make. My noble friend has been very clear about the sequencing. We can take comfort that, in so far as we will consider Clauses 8 to 10 of the Trade Bill in January, if this House and, in due course, another place were to change the Bill in any way—that is not impossible—those would become the substantive provisions and the permanent legislation. We are dealing now with something that is temporary by its very nature. I hope that that means that my noble friend’s amendments on Report will perhaps change a little to bring them in line with this Bill, but also that Report will be an opportunity for us to make sure and double-check that we have the permanent provisions in the right form.

My Lords, it is a pleasure to follow the noble Lord, as always. I am glad he asked his questions because they are very pertinent. I slightly regret his reminding me that I have spent just about half of the time I have been in this House covering a Trade Bill. The gestation period of this Trade Bill seems extraordinarily long. It has even managed to spawn an offspring: a baby Bill that we now have to cover in a rushed way. It is quite extraordinary, really. As the noble Lord said, perhaps it may fly the nest by the end of January.

I read the Hansard from the debate in the Commons and in many respects the Minister rephrased what the Minister in the Commons, Greg Hands, indicated for it. I will turn to that, but our Minister made two interesting references that indicated that both the substantive areas had received substantial scrutiny in both Houses. A reader of Hansard would not have realised that the government amendments were withdrawn in Committee because of the very valid questions put. As the noble Lord, Lord Lansley, indicated, there are still some questions.

That said, if the Government believe very strongly that these powers will be absolutely necessary on 1 January, they should have them. However, I remind the House that these are powers that the Government did not realise they needed, and they could not even draft them properly when they did. Now they do know that they will need them at the end of the year, they are having to rush them through. They will then be superseded by the longer-term powers.

During the course of the Trade Bill, the Minister said that the whole Bill was necessary on 1 January. We now know in much clearer terms, from Greg Hands’s speech and the Minister’s contribution, exactly why they need that. To quote the Minister, it is

“to mitigate any temporary friction”.—[Official Report, 16/12/20; col. 312.]

We now know what that means. After months of warnings during the Trade Bill that the Government were not ready for its border operating model, and months of them saying, “We are ready and it will be ready”, we now know that it is not. The Minister said that we are regaining control of our borders. This Bill demonstrates that they are not in control. Only now, with four working days before the end of the year, have they realised that they need these powers.

It is valid that the Government will have the borders operation centre—what could be termed “a crisis centre”—ready; I do not deny that. We have been calling for such a centre for months, but the Minister has been saying that it was unnecessary because it was going to be smooth, businesses were prepared and there had been plenty of time. At the Dispatch Box, the noble Viscount, Lord Younger of Leckie, said that businesses had no excuse for not being ready because they had been given all the information. We now know that there is a crisis centre that must be operational. The Government did not even know that one member of this crisis operating centre from one agency did not have the legal power to share information with someone sitting next to them in the operating centre from another department. It is literally extraordinary.

The Government also said that it was, to quote Greg Hands,

“to identify and resolve the root cause of disruption.”—[Official Report, Commons, 16/12/20; col. 313.]

I think we know what the root cause of disruption is; nevertheless, if this is to ensure that there is not a crisis built on chaos at the border, then yes, and if it ensures that security is maintained and vital goods are processed, as the noble Lord indicated, then yes, this information should be authorised to be shared.

There is one outstanding issue. I thank the Minister for responding to the points raised in Committee, and some of the changes to the measures in this Bill reflect that the Government listened in Committee, especially regarding the consultation with the devolved authorities. I welcome that, and that yesterday the Welsh Senate, and now the Scottish Parliament, have provided approval, which I welcome.

The Minister said that Northern Ireland engagement is ongoing. As I understand it, the measures in the Bill are required for all United Kingdom ports for the operation of the border operating centre for the whole of the United Kingdom. Am I to understand that the measures in the Bill will not be operational for considering the impact of Northern Ireland ports? Can the Minister confirm that there is no legal authority for information to be shared with Northern Ireland Ministers or between Northern Ireland authorities and the UK Government on 1 January? The Minister must clarify that, not least because of all the debates that we have been having about the preparedness of businesses and what they need to know about the procedures in Northern Ireland. His clarity on that would be welcome.

One point still outstanding concerns Clause 2 and the public authorities sharing information. The Government have indicated that this is a vital reason why they want this legislation to go through. This is for strategic highway companies or port authorities to provide the information to the centre on the smooth operating of our ports. The point that I raised in Committee, which has not been addressed, is that under Clause 2(3)(c)

“a strategic highways company appointed under section 1 of the Infrastructure Act 2015”

covers only England and Wales. It does not cover Scottish highways. Similarly, in Clause 2(3)(d)

“a port health authority constituted under section 2 of the Public Health (Control of Disease) Act 1984”

does not cover Scotland. Does the duty that is now, as the Minister said, “vital”, cover Scottish highways to Scottish ports and, indeed, Scottish ports? I welcome that the information will be shared with the Scottish Government and the Welsh Government, but I am curious as to why that power does not enable Scottish highway operators or ports. If they are all under the aegis of Scottish Ministers, it would be helpful if the Government could clarify that.

Finally, it is a sad state of affairs that we are spending the last day before the recess, potentially before we are recalled to scrutinise a very large piece of rushed legislation, rushing through this legislation. The news yesterday and today that, of all companies, Hornby has halted exports from the United Kingdom because of the uncertainty and the mess at the borders, and that one of our premier clothing companies, Jigsaw, is halting exports to Europe, shows that the harm being done by the confusion, and the likely disruption, is not to foreign importers to the United Kingdom but to British exporters out of the United Kingdom.

I end by quoting Lyndon Davies, Hornby’s chief executive, in the Guardian:

“I’ve seen the Gulf war, Falklands war, three-day week, crashes on the stock market—after all these things there are issues. All we’re asking is, tell us what is going on. We’re forced into a position of saying, ‘what is the point of going through the pain of all these orders?’ What the world of business has to do is sort out the mess and the carnage of what’s left.”

That is one hell of an indictment of the position that we are in, for, as the Minister said, “regaining full control”. Before we come back and before we sunset this piece of legislation, to be covered in the next trade Bill, can the Minister clarify that our ports and borders are ready, because Hornby, Jigsaw and others are clearly indicating that they are not, and that the big cost is to British businesses?

My Lords, I am very grateful to the Minister for his clear and concise introduction to the Bill before us today, and to the noble Lords, Lord Lansley and Lord Purvis, for blending seamlessly from Second Reading mode to Committee mode, which has allowed us to get into some of the detail that we perhaps would not have had if this had been a traditional Second Reading.

I am afraid that, rather like them, I have detailed questions to ask but, like others, we are not against what the Government are trying to do here. We will support them in getting the Bill on to the statute book because it clearly is appropriate and in our best interests that we have the right legislative framework under which data is exchanged. That presumably must lie at the heart of what is being done today.

My first point has not been raised by the other two speakers but was implied in much of what they said. The Bill takes Clauses 8 to 10 of the Trade Bill currently in your Lordships’ House, but does not include Clause 7. This is a bit odd. Can the Minister reflect on that when he responds? Clause 7 is about the collection of exporter information by HMRC. Presumably the current Bill being only about the disclosure of information held means that powers already exist under which data is being collected, and that these powers do not need to go into the new Bill because they will continue, as it were, subterraneously as the new Bill comes into effect from 1 January 2021, and until it is sunsetted, but is that right? The question left hanging in the air is: if the clause that we will be considering under the Trade Bill on 6 January needs our consideration on 6 January, why is it not needed on 1 January? If it is not needed, precisely which powers are being used to collect the information that will subsequently be dealt with under Clauses 8 to 10? I hope I have said enough to explain that issue, and I look forward to the response.

We may indeed have amendments to Clause 7 when we get to it in due course, and of course that would be an opportunity for us to explore this matter a bit more. But it would be interesting to have confirmation from the Minister that we have the powers and that we do not need to worry about which leg of the statute book we are relying on for this.

Secondly, as others have mentioned, the amendments made in the short Bill before us have been based on amendments discussed in Committee and are on the Marshalled List for consideration on 6 January. However, I notice that the versions currently on the Marshalled List are the original amendments; they are not the ones in this short Bill. The noble Lord, Lord Lansley, was right to raise this as an issue. The drafting has changed. It might just be that a different draftsperson is holding the pen but it is, to some extent, significant. This afternoon we are dealing with a Bill with one set of amendments to the wording which will then be presented to your Lordships’ House for consideration on Report and which might, if the amendments currently laid are the ones that we are discussing, differ. Does that matter? I do not think that it does particularly but, again, it would be interesting to have a clear statement from the Dispatch Box about whether the amendments currently laid are the ones that we will be considering on 6 January. If they are not, can the Minister confirm that he will be changing them in short order?

Thirdly, I very much welcome the amendment that deals with the devolved Administrations. There was clearly a lacuna in the original drafting. They have powers in relation to trade that are not reserved and they will therefore want to access the information that has been gathered and make use of it in an appropriate way. It is important that they are consulted on more issues relating to this Bill. The Minister will be aware that we are likely to come back to this again on Report in the light of the discussions that we have been having on the internal market Bill. Out of that has emerged a framework of drafting which is helpful in relation to how we wish to see the UK Government deal with the devolved Administrations—that is, not just to consult them but to seek their consent. Will the Minister take that back and look at it again to see whether the drafting can be amended slightly to incorporate this new version?

There has always been a concern that the UK Government having to consult the devolved Administrations was one thing but, where they also had to seek consent, there was a danger that there might be game-playing or a wish in one of the devolved areas to hold things up, effectively giving a veto to the devolved Administrations. The way round that in the internal Market Bill is quite clever. Where it is important that the decision is not delayed, the Bill includes a phrase about the seeking of consent being time-limited to a month and, if for any reason the consent has not been received within a month, the Minister has the power to carry on with the regulatory framework. I recommend that to the Minister and would be grateful if he would have a look at it.

My final point is on the sunset clause. This might just be the drafting but it is rather awkwardly framed in the short Bill before us. The Secretary of State appears to have quite extensive powers to mark his own homework and make decisions, but the Bill which will emerge from your Lordships’ House and from Parliament and which will receive Royal Assent as the Trade Bill will, we think and hope, have significant changes relative to the draft received in your Lordships’ House some time ago. Would these changes be sufficient to suggest to a Secretary of State that the Bill was not sufficiently similar for this short Bill to be required to stay in force? If so, can the Minister give an assurance from the Dispatch Box that, if this is a phrasing issue, it is not a principal issue, and that the principle he wishes to see in play is that this Bill is definitely sunsetted; that there is no threat to the Trade Bill as it progresses through Parliament, however different it might look at the end of the process compared with how it is at the moment; and that we are not just trading clever words here but that this is a genuine attempt to make sure that we do not have the statute book cluttered with different forms of the same piece of legislation? That would obviously be inappropriate.

I hope the Minister will understand that I in no sense wish to be too negative but we would not wish to see a situation where, for reasons that are as yet unclear, the Government might fall out of love again with their Trade Bill and decide that they did not want to see it on the statute book. We would then be left with a rushed-through piece of legislation—which would probably be okay—dealing with this aspect. That might well have significant consequences that we cannot foresee at this stage, and that would be unsatisfactory.

I think that I have dealt with all the main issues that we wanted to raise. We have effectively covered the Bill both with a Second Reading and a short Committee stage, in substance if not in name. I think that the right thing for the Government to do is to take this legislation through its remaining stages as quickly as they can, so that we see it on the statute book. However, there are points that we will come back to and we look forward to having detailed discussions on those.

My Lords, I thank noble Lords for what turned out to be a very spirited debate on the Bill. I will try to respond in as detailed a way as I can, although, as my noble friend Lord Lansley recognised, some of the points that have been raised are very detailed, and for those points I will write to the noble Lords concerned. Of course, as he said, we will be debating this again in the first week of January, which will give us the chance to come back to some of those detailed points.

I can confirm to the noble Lord, Lord Purvis, that these powers are absolutely necessary. Of course, when the Trade Bill started its long, meandering process through your Lordships’ House, we had hoped to complete that process. We thought that it would have had Royal Assent by now, in which case this Bill would not have been necessary. This Bill has had to be brought forward because of the time that, in their wisdom, noble Lords wished to devote to debating the Trade Bill.

I can confirm that the Bill will cover Northern Ireland and Scottish ports and roads, et cetera. The ability to add extra authorities to the list already in the Bill is there so that those devolved authorities can be added, obviously following consultations with the DAs.

The noble Lord, Lord Stevenson, asked about Clause 7 of the Trade Bill and the collection of data. This is a very specific power, which is to help the statistical data that we need to manage trade and exports going forward. I remind noble Lords that it involves a simple tick box on a company’s tax return. It is entirely voluntary but you can, if you wish, tick that box to say that you are an exporter. That information in itself is not relevant to the management of the border. All the data that this Bill needs to fulfil the management of the border is already available through powers that exist in relation to the authorities concerned with the border. They might be powers for the port authorities, the highways authorities or the police.

As I said in my opening comments, the intention of the Bill is to allow those bits and pieces of data that have already been collected to be merged together. For example, if a truck is headed to a border and contains cows, which need a veterinary inspection when they get there, the border will know that those cows are coming and can have the vet ready on standby to see to them. That might seem a small example but it is those specific practical points that the Bill is designed to deal with.

In relation to the point that the noble Lord, Lord Stevenson, and others raised about the exact reconciliation between the clauses in this Bill and the Trade Bill clauses as amended on the Marshalled List, I will have that looked at. I can absolutely see the advantage of everything reconciling, and I will take it away and look at it before Report. As my noble friend Lord Lansley recognised, parliamentary counsel, in their wisdom, like to improve on the drafting of their predecessors, and there might have been a little bit of that going on here.

I can answer the noble Lord, Lord Stevenson, specifically on his point about the sunset clause: there is nothing funny going on here. As a matter of principle, we absolutely expect that this Bill will be sunsetted by the Trade Bill, as night follows day.

So I think I have dealt with most, at least, of the points that have been raised, and, as I said, if I have missed any out, I will happily write to the noble Lords concerned. Again, I thank noble Lords again for the constructive way they have dealt with this and for helping us speed the passage of this important Bill.

The Bill’s purpose is simple: it allows the Government to use data they already hold to ensure the smooth flow of goods after the end of the transition period. This will reduce inefficiencies and bureaucracy for business, which I am sure Members across the House will support. The Bill will support better services by permitting data on the flow of international trade to be shared and analysed, helping identify and resolve the root cause of disruption. I stress to noble Lords, as I have done earlier, that the Bill does not create any additional powers to collect data, and the Government have also ensured that its provisions apply only to the public bodies specified and only where those bodies are satisfied that data use would support a Minister’s functions relating to trade.

On that basis, we have had a good debate, carried out in an excellent, spirited style, demonstrating of course the very great attention that noble Lords rightly and properly give to the detail of the legislation when it is before our House. I thank noble Lords for their contributions, and I also thank the Government and Opposition Whips, who have ensured that this process has run smoothly.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.