Committee (4th Day)
Relevant document: 15th Report from the Constitution Committee
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, as we have just had, the Committee will adjourn for five minutes.
A participants’ list for today’s proceedings has been published by the Government Whips’ Office, as have lists of Members who have put their names down to the amendments or expressed an interest in speaking on each group. I will call Members to speak in the order listed. Members are not permitted to intervene spontaneously; the chair calls each speaker; and interventions during speeches or “Before the noble Lord sits down” are not permitted.
During the debate on each group I will invite Members, including Members in the Grand Committee Room, to email the clerk if they wish to speak after the Minister, using the Grand Committee address. I will call Members to speak in order of request and call the Minister to reply each time. The groupings are binding and it will not be possible to de-group an amendment for separate debate. A Member intending to move formally an amendment already debated should have given notice in the debate.
Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Grand Committee Room only. I remind Members that Divisions cannot take place in Grand Committee. It takes unanimity to amend the Bill, so if a single voice says “Not content” an amendment is negatived and if a single voice says “Content” a clause stands part. If a Member taking part remotely intends to oppose an amendment expected to be agreed to, they should make this clear when speaking on the group. We will now begin the resumed debate on Amendment 26.
Clause 2: Implementation of international trade agreements
Debate on Amendment 26 resumed.
My Lords, I support Amendment 26, which was moved by the noble Lord, Lord Stevenson, on Tuesday and to which I have my name. I will also speak to Amendment 27, which carries my name, and have put forward Amendment 99, which, as it turns out, overlaps with these other amendments and addresses devolution issues relating to the Bill, specifically in regard to Wales. I share many of the misgivings expressed by the noble Baronesses, Lady Humphreys and Lady Finlay of Llandaff, in the debate on Tuesday.
The fact that the devolution dimension raises its head time and time again as we consider Bills in the post-Brexit context should surely make noble Lords step back for a moment and ask why this keeps coming up to challenge us in this Chamber. The devolved Governments of Wales and Scotland have been operational for over 20 years, and although issues have arisen from time to time relating to respective powers, we are now witnessing a fundamental change in attitude and, if this is not handled wisely at Westminster, it could all end in tears.
The truth, of course, is that stepping back from the EU means that powers which, over two, three or sometimes four decades, have been exercised at a European level will henceforward be undertaken within the UK. A majority of the powers returning from Brussels to the UK on devolved issues such as agriculture, employment, regional policy and roads will be passed immediately to the devolved Administrations for their exercise in Wales, Scotland and Northern Ireland respectively; they will be exercised at Westminster for England. But there are some responsibilities which relate, directly or indirectly, to devolved powers which the Government have deemed ones to be exercised for the whole of the UK from Westminster.
There may well be arguments for doing so in some limited matters where that is sensible but, if and when that is the case, and bearing in mind that we are dealing with portfolio matters which have hitherto been the responsibility of the devolved Governments, with implications within the devolved nations, clearly the onus should be on the UK Government to make the case and not to drive their policy through purely by dint of political clout.
In particular, there must be agreed mechanisms for resolving issues where there is disagreement between Westminster and one or more of the devolved Governments, since existing mechanisms have lost their credibility. In opening the debate on these amendments the noble Lord, Lord Stevenson, said:
“We urgently need a means of settling disagreements, one that commands confidence and trust”.—[Official Report, 6/10/20; col. GC 201.]
The noble Baroness, Lady Finlay, highlighted how the Bill, as currently worded, would impinge on devolved powers such as food standards, animal health and environmental standards. The noble Baroness, Lady Humphreys, drew attention to the call of the Counsel General for Wales, Jeremy Miles, for a
“new form of joint governance”
for Britain’s internal market.
Only yesterday, the Welsh Government demanded an explanation from the UK Government after it was leaked that Ministers at Westminster had deliberately decided to withhold key information from the devolved Administrations on matters relating to a worst-case scenario for food—a devolved matter. The Committee might like to know that the information concealed arises from the UK’s document on transitional period planning assumptions, which includes orders that the information should not be shared publicly with the devolved Administrations at this stage. This is quite outrageous, and it is little wonder that Ministers in Cardiff and Edinburgh are hopping mad.
What screams out at us is the need to establish jointly a dispute-resolution mechanism that carries the confidence of the devolved Governments and Parliaments. If we do not do this, then time after time we are going to face the same recriminations here at Westminster and the same frustrations in Cardiff, Edinburgh and Belfast. Such a mechanism might have elements of a federal or confederal approach, and this might be an anathema to some noble colleagues in this Committee and in our House. The alternative, however, is to tell the devolved Governments that power devolved is power retained, and that the choice they have is either to swallow hard and accept that England has the numbers and that the devolved Governments must lump it, or to go down the road to independence and ending the United Kingdom. That is the choice that might have to be made. If so, it is a choice that legislators at Westminster will have to face, as much as those in Belfast, Cardiff and Edinburgh.
We hear voices in Northern Ireland demanding, as a direct consequence of Brexit, a reunification poll within the next five years. In Scotland, a majority in the polls now support independence. In Wales—and this might well come as a surprise to colleagues in this Committee—the support level for independence has reached an unprecedented 34%. That is not a majority—yet—but it is enjoying a momentum that has never previously been witnessed in my country.
In all three nations, this is a direct result of the botched manner in which Westminster have mishandled the consequences of Brexit and failed to work in partnership on devolved issues such as healthcare. This frustration is felt not only by nationalists in the three devolved nations but equally by the Labour leadership in Cardiff, as was expressed graphically by Mark Drakeford last week, and indeed by Unionists in Belfast. In the context of this Bill, there is now an opportunity to send a message to all three devolved legislatures: that Westminster does indeed accept that there is an issue here that has not been properly resolved and there is a willingness to address this issue rather than let it fester yet again into one where the three devolved legislatures refuse to agree the necessary consent orders.
This is avoidable: it will not be resolved here today, but if the Government were committed to bringing forward on Report their own amendment based on the principles that underpin this bank of amendments, they might help open a new, happier phase in the relationships between the nations of these islands. If the Government do not do this, or if the other place were to overturn any amendment agreed by this House, Westminster would be making the same mistake that it has so sadly made in the past. As we approach the centenary of Irish independence, it might be salutary to contemplate the serial blunders of Westminster Governments in their handling of Ireland, and the way they are now heading in relation to Scotland and Wales. It is not too late, but it is getting that way, and I ask the Minister to treat this issue with the seriousness that it deserves.
My Lords, I will speak to Amendments 26 and 99, to which I have appended my name, and echo many of the concerns that have been expressed by previous speakers. I am delighted to have received a briefing from the Law Society of Scotland; as a non-practising advocate, I obviously heed what it says. It is an apolitical organisation that speaks for many of the practitioners in Scotland, and I would like to share with the Committee this afternoon some of its concerns, which have been echoed by previous speakers.
The society points out that the Scottish Government have highlighted a number of tensions between the devolved Administrations. We have just heard about the Welsh Assembly in an eloquent speech by the noble Lord, Lord Wigley, who spoke to Amendment 99. We also heard from the noble Lord, Lord Stevenson of Balmacara, when he moved Amendment 26. There is a very clear tension emerging between the devolved Administrations, Assemblies and Parliaments over the power reserved to the Government at Westminster, who are now negotiating trade agreements for the whole of the United Kingdom.
In the legislative consent memorandum lodged by the Scottish Government in the Scottish Parliament on 18 August this year, the Scottish Government recommended that Parliament agree to the Bill. But they pointed in particular to these amendments and Clause 2, which lies at the heart of these amendments, providing a power for both the UK and Scottish Ministers within devolved competence to make regulations to implement qualifying international trade agreements. I will ask the Minister to answer a very simple question, to go to avoiding this attention on this occasion. It is important that regulations are put in place in advance of the completion date of 31 December this year. Can the Minister confirm that these regulations will be in place and that there will be information-awareness campaigns for the general public, citizens and businesses, as well as professions in the UK, both north of the border and west of the border and at Westminster, so that the terms of these agreements and their implications are known?
For the reasons that the noble Lord, Lord Wigley, gave, it is extremely important to know that there will be a mechanism in the event that this tension, to which I referred earlier, leads to disagreements, and what that mechanism will be. It is also important that the common frameworks are made more public: it is not acceptable that they are currently shrouded in mystery. So I hope that my noble friend will take this opportunity to put a date on when these regulations will be in place, tell us what the dispute-resolution mechanism will be and confirm that there will be an information campaign north and south of the border in this regard.
My Lords, it is always a pleasure to follow the noble Lord, Lord Wigley, and the noble Baroness, Lady McIntosh, both of whom always speak with such passion and conviction, particularly on these matters. This group of amendments, including Amendments 61and 62, to which I have added my name, is about establishing the principle of the need for consultation and consent with the devolved authorities and legislatures, and about laying down some markers for how we can establish open and effective methods for dispute resolution in our unwritten constitution.
As the noble Lord, Lord Wigley, has said, more than 20 years on since the various devolution settlements were agreed, the stresses and strains of our uncodified system are in danger of being tested to breaking point as a result of Brexit. Future United Kingdom trade deals risk highlighting these stresses and strains yet further, which is why it is so important to test the Government’s responses to many of these issues as we debate these amendments this afternoon.
Twenty years ago, when the devolution settlements were being devised, there were fewer party-political stresses on the system, as Labour was in power—in coalition or otherwise—in Edinburgh, Cardiff and Westminster. Clearly, now that we have an SNP Government in Edinburgh, a Labour-led Administration in Wales and a re-established power-sharing Executive in Belfast, as well as a fairly nationalist Conservative Government in Westminster, our mechanisms of consent and trust are being tested to the limit.
I should perhaps declare an interest as a Scot with an Irish passport currently living in the county of Kent. Those of us who are not nationalists have a collective interest in ensuring that we find ways to make our future constitutional settlement and trading relationships work effectively throughout the whole United Kingdom. I therefore hope that the Minister agrees that providing the necessary information to the devolved legislatures to allow scrutiny of any future trade agreement—as set down in Amendment 62—is the very least that can be expected and is surely in everyone’s best interests. Providing the text at least two months before the agreement and inviting comment from the devolved legislatures would provide the kind of buy-in and involvement that will assist in developing coherence in policy-making across the United Kingdom.
We should remember that this should always be a two-way flow of information. The UK’s devolved legislatures are often in a stronger position to understand the impact of new trade deals on local businesses and communities. Obviously, this is particularly true in the case of Northern Ireland, where the impact on SMEs could be very significant, not least because of the complex supply lines. Does the Minister acknowledge that free trade agreements will have a direct impact on the effectiveness and scope of devolved policy-making and legislation? Does he also accept that consent mechanisms with the devolved Governments are vital to maintaining the coherence of our United Kingdom?
I will turn now to a very specific FTA: that of Japan. Can the Minister say to what degree the Northern Ireland Executive and Assembly were kept informed during the negotiations, given the very particular set of circumstances faced by Northern Ireland resulting from the Northern Ireland protocol? Does he accept the analysis of a Stormont official who said the week before last:
“Some Japanese goods sold in Britain as part of a new trade agreement may not be available in Northern Ireland due to the Brexit deal”?
Turning to the future role of the Joint Ministerial Committee—covered in Amendments 50 and 76—it should be noted in passing that, despite his new title of Minister for the Union, the Prime Minister has not yet presided over a plenary session of the JMC, as far as I am aware. The JMC has until now been a consultative rather than a decision-making body but, given the likely increase in tensions, surely it makes sense to increase both the frequency of meetings and their capacity for decision-making.
As Professor Nicola McEwen said in her evidence to the Lords Constitution Committee a couple of weeks ago, the JMC on EU negotiations is currently the best-functioning of the JMCs, but is likely to cease to exist at the end of transition period and, as yet, there are no clear indications of how it will be replaced. Can the Minister say whether there are plans to ensure that the JMC meets more frequently? What plans are there to replace the JMC on European negotiations from 1 January next year? Does the Minister agree that it is increasingly vital to have regular meetings of the JMC, so that we can have greater consultation and co-ordination? Can he also say whether thought has been given to establishing additional sub-committees within the JMC framework to discuss such issues as international trade and international relations?
No doubt the Minister will say in his reply that all sorts of assurances on consent and consultation have already been given, but, for those kinds of assurances to carry weight, there has to be a significant level of trust. Tragically, that trust has been eroded throughout the whole Brexit experience, which has led to the very real need for the amendments we are discussing, and the need to put mechanisms for both consultation and consent in the Bill.
My Lords, it is a great pleasure to follow the three noble Lords who have opened our session and to express my broad agreement with the direction of everything they said.
I have attached my name to Amendment 31 in the name of the noble Lord, Lord Stevenson. I do not intend to go through each amendment in this group one by one, except perhaps to note that Amendment 61 in the name of the noble Baroness, Lady Ritchie, and Amendment 76 in the name of the noble Lord, Lord Bruce, seem to be the strongest and to address the key issues. But all the amendments address issues of concern and at least seek to prevent what we could describe as a dictatorship from Westminster.
On the broad picture of what is happening with this group of amendments, as we have said again and again during our discussions on the Bill, trade is now understood to be a far more complex matter than it was thought to be decades ago when your Lordships’ House and the other place last considered it. Occasionally we hear from a small rearguard, saying that trade has nothing to do with the environment or labour standards or considerations beyond the narrowly neoliberal economic —indeed, that such issues should not be raised at all here. But that argument is clearly well past its sell-by date.
Carbon emissions from the products we consider trading have an impact on us all, as does the environmental destruction associated with them. If we think about the origins of the current pandemic, we see that the destruction of nature anywhere in the world has an impact on us all. The impact is also very directly onshore. If we think about the exposure of the situation of the garment industry in England, particularly in Leicester, the nature of trade and the failure of regulation—indeed, the failure to have the will to regulate—are part of that story. And, of course, bringing junk products in produces waste that must be dealt with.
That brings me to devolution. The aim of devolution —the direction of travel—is to allow nations to choose their own routes and, for example, set higher environmental, labour and food standards, as we have sadly seen happen for England. We will look at that a great deal more when we come to the Internal Market Bill, but in this context we are talking about foreign trade. Whatever Westminster might seek to inflict on England in the form of free trade zones or the destruction of standards by bringing in inferior, damaging, disastrous products, the whole point of devolution is that nations can make their own democratic choices in systems far more democratic than in Westminster, and not see them undermined by an influx of low-standard foreign goods or services. They must be able to say no to these goods and services in their trade. In these amendments, we seek to ensure that that possibility is there. It is a democratic essential.
My Lords, I refer Members to my entry in the register of interests. It is a pleasure to follow the preceding noble Lords, who have made particular cases in respect of several amendments. I will address Amendment 61 in my name—to which the noble Baronesses, Lady Suttie and Lady Altmann, and the noble Lord, Lord Hain, have added their names—and Amendment 62 in the name of the noble Lord, Lord Hain, to which I and the noble Baronesses have added our names.
Before I explain the need for proper consent and scrutiny arrangements with the devolved Administrations, it is important to note that those two amendments deal specifically with Northern Ireland. Although there have been devolved settlements in the regions of the United Kingdom over the past 20 years, we in Northern Ireland have been subjected to in-and-out periods of devolution. We have sometimes had periods of direct rule, although the last time the Northern Ireland Executive and Assembly were not sitting and we did not have the other infrastructure associated with the Good Friday agreement, basically Westminster made some decisions, but it was not a form of direct rule because amendments to the then Northern Ireland Executive Bill addressed those particular issues.
Because of the sensitivities of dealing with the devolved arrangements in Northern Ireland, and because of their intricate nature, it is important that the relationships that were manifest in the Good Friday agreement—relationships between unionists and nationalists in the north, between the north and south of Ireland and between Ireland and Britain—are nurtured and not set aside or fractured in any way. Yesterday, the good bishops of the Catholic Church in Ireland stressed the importance of underscoring that shared space. Their fear was that Covid, Brexit, all these trading arrangements, the Trade Bill and the Internal Market Bill could fracture those relationships in a very unnecessary way.
Amendment 61 deals with the need for the devolved Administrations to agree to any trade deal that the Government might be contemplating or seeking to approve. This is necessary because there is a fear of a Westminster power grab from the devolved Administrations. Amendment 62 provides for a necessary level of scrutiny and consultation with the devolved Administrations. Of course, the very clear issues of the Internal Market Bill—which seems in some ways to supersede the common frameworks—intersect with all of this. The Bill causes fractures and difficulties for our intricate set of political relationships. Because of the slight level of volatility, these need to be nurtured and developed and not undermined in any particular way. There is a fear that Northern Ireland will be excluded from UK free trade agreements. It is important to minimise this risk—hence the need for agreement, consent and scrutiny by the devolved Administrations.
I understand that the Government have said that Northern Ireland will benefit from access to its new free trade agreements. On the one hand, this makes sense because Northern Ireland is in the UK customs territory. However, this is not straightforward, because the EU customs code will be applied in Northern Ireland, as will its standards for the production of food. So will the Minister specify that Northern Ireland will not be excluded from free trade agreements? Will the Government accept both these amendments to ensure that this level of consent, scrutiny and adherence, to ensure that we are included in free trade agreements, is placed in statute by the Bill? I—and the other noble Lords who have signed these amendments—believe that this is vitally important.
In conclusion, it is important that Northern Ireland does not sit outside these free trade agreements, which could undermine our very economic basis. There is also the issue of where these free trade agreements intersect with the Northern Ireland protocol. We do not want any borders in the Irish Sea and we do not want any borders on the island of Ireland that could interfere with our delicate political arrangements, our trading relationships and our very economic base, at this particular time of the pandemic.
My Lords, I have added my name to Amendments 61 and 62, spoken to so excellently just now by the noble Baroness, Lady Ritchie of Downpatrick. It is a pleasure to follow other noble Lords. These amendments are also supported by the noble Baroness, Lady Suttie, and the noble Lord, Lord Hain. I also support the general aims of the other amendments in this group.
This Bill is particularly concerned with non-tariff trade barriers. Nowadays, regulatory barriers to trade are often the most crucial parts of free trade agreements. When introducing this Bill, my noble friend talked about strengthening and protecting the devolved Administrations. I wholeheartedly agree with these sentiments, and that is indeed what these amendments aim to achieve.
As other noble Lords have said, the Westminster Government have the reserved power to negotiate and sign international trade agreements. However, while standards for manufactured goods may also be reserved, powers over implementation of regulations in areas such as agriculture and food products are matters for the devolved Administrations. In order to be able to implement newly negotiated free trade agreements, the Government surely have a direct interest in including the devolved Administrations, as these amendments seek to introduce into the Bill. Failing to do so could clearly put the union at risk.
Of course, the Westminster Government could ultimately get around refusals by devolved nations to implement the agreed terms of an FTA by coercion. But, if free trade agreements result in battles between London and the devolved Parliaments—with Scotland, Wales or Northern Ireland taking the English Government to court over terms of a trade agreement to which they had not agreed—it is likely that our ability to strike further deals would be called into question. Surely there would be a far greater likelihood of success in future if the devolved Governments were involved at an early stage. I urge my noble friend to take note of how Canada operated when negotiating the CETA deal. It included its provincial Governments in its negotiations, which ensured that any commitments they made were more credible and more easily accepted across Canada.
As the noble Baroness, Lady Humphreys, said, the UK is a “family of nations”. Absolutely. In the modern era, a family is considered to function best when all its members are involved in decision-making, rather than the dictatorial senior parent ordering everybody to obey their wishes and do what they are told. This causes particular strife when, for example, another family member is promised control over certain decisions which affect their daily life and well-being, but then finds that they were misled. Westminster must surely accept the need to include the devolved Governments in areas of such significance. Respecting their needs at an early stage and including them as soon as possible will ultimately result in better agreements.
Can my noble friend explain the Government’s thinking in resisting these amendments? Specifically, in relation to Amendments 61 and 62, reserved powers over international trade are limited by two constraints. I have already mentioned that the implementation of trade agreements for agri and food is devolved. The second is the Northern Ireland protocol. According to this protocol, EU regulations on goods—whether manufactured or agricultural—are supposed to continue to apply in Northern Ireland for the duration of the protocol. Annexe 2 includes the whole EU acquis for product standards. If the EU amends these rules, Northern Ireland is supposed to change, too.
We will come back to the position of Northern Ireland in a later group, but I hope my noble friend will consider these amendments carefully—or his own wording to achieve these aims when we reach Report.
My Lords, I echo the words in particular of the noble Lord, Lord Wigley, and the noble Baroness, Lady Ritchie. The noble Lord, Lord Wigley, spoke eloquently about the situation in Wales and the noble Baroness, Lady Ritchie, about Northern Ireland.
Amendments 61 and 62 are also in the names of the noble Baronesses, Lady Ritchie, Lady Altmann and Lady Suttie. I also support Amendment 57, tabled by my noble friend Lord Stevenson of Balmacara. I want to focus on the appalling record which this current Administration have in their approach to the elected, devolved Governments and legislatures of Wales, Northern Ireland and Scotland.
The United Kingdom is currently engaged in what are without doubt the most crucial trade negotiations of the last 50 years: the negotiations about our future trading arrangements with the EU, our largest trading partner. But, unlike most such negotiations, these are not about securing additional benefits for our businesses from a liberalisation of trade: no, the stakes are even higher, because these negotiations are about preventing the introduction of new barriers to trade which all have the potential, even if an agreement is reached, to cripple our manufacturing industry, with a loss of jobs in sectors which are particularly important—for example, to Wales, aerospace and automotive—leaving the devolved Governments with their responsibility for economic development to pick up the pieces.
The negotiations with the EU will also directly impact on issues wholly within devolved competence, such as health and education, since a failure to negotiate mutual recognition of our medicines licensing regime, for example, will lead to increased costs and delays in accessing new treatments, while the failure to secure continued participation in the Erasmus+ programme will impoverish the educational experience of thousands of young people in Wales and indeed across the United Kingdom.
What opportunity have the devolved institutions had to influence, let alone shape, these negotiations? Mike Russell, the Scottish Government’s Constitution Minister, pointed out in June that
“we had virtually no involvement in producing”
the negotiating guidelines or legal text published by the Government,
“and indeed only saw the legal texts—with no possibility of changing them—24 hours before they were published.”
Jeremy Miles, the Minister for European Transition in the Welsh Government, has talked about the
“absence of meaningful Ministerial engagement, where UK Ministers discuss and seek to agree with us not just their formal starting position but the approach they expect to take as the negotiations evolve.”
The Joint Ministerial Committee on European negotiations, whose terms of reference are to “seek agreement” on the approach to the negotiations, did not meet at a key time for preparing for these negotiations between 28 January and 21 May of this year. On top of this frankly insulting approach, the Government have now published their internal market Bill, which not only threatens to break international law—and is proclaimed as doing so—but is an outrageous and outright attack on the very basis of the devolved settlements in this country. That is why there is a great deal of concern in all the devolved Administrations.
In this context, it is surely for us, above all in your Lordships’ House, to stand up for the rule of law and the rights of political institutions that were put in place over 20 years ago to protect and promote the interests of those parts of the United Kingdom, each with a distinct identity and social and economic needs, which had been marginalised by the preceding majoritarian political system. That is why my amendments and others which I shall support, such as Amendments 26 and 50, seek to entrench the role of the devolved Governments and legislatures in future trade negotiations that will inevitably shape, and potentially restrain their freedom to exercise, their powers in respect of issues such as food standards and environmental regulation, which sit squarely within their competence.
The devolved institutions are, quite rightly, obliged to implement international agreements which are entered into by the UK Government, even where the matters involved are otherwise under their control. It cannot be right that they are bound in this way without having any rights to influence the outcome of the negotiations that result in such obligations being imposed on them.
Underlying these constitutional issues is the kind of state the UK wants to be: either one run by diktat from the centre, as Boris Johnson’s Ministers are doing over trade negotiations with the European Union and in this Bill—and especially in the internal market Bill—or one run on the principle of democratic consent and mutual respect for all the Governments: the UK’s and those of the devolved Administrations.
But there are practical policy issues at stake as well, and here are my main concerns. Trade deals today, perhaps with the exception of a future UK-EU one, if there is one at all, extend into a wide range of social provision and domestic policy issues, such as workers’ rights, environmental protection and safety, product and food safety regulations, and procurement. As a result, trade deals are often politically contentious: the more comprehensive they are, the more they are likely to be seen as leading to a loss of regulatory autonomy and democratic accountability. As such, it is wrong to see free trade agreements as purely “business” or “trade” concerns: they reach right to the core of responsible government and public welfare. Many of the areas covered by free trade agreements—for example, agriculture, the environment, forestry, health and economic development —are within the competence of the devolved Administrations.
Not everybody wins from trade liberalisation. Opening domestic markets to foreign competition can have adverse effects on some domestic industries. These industries might be more prevalent in some parts of the UK compared with others—Welsh lamb farmers, for example, or Scottish distillers. It is not unknown for trade agreements to be used by Governments to circumvent domestic opposition and push through regulatory reforms—so-called “policy laundering”.
The devolved Governments have been explicit in their requests for formal consultation and engagement from the UK Government on future free trade agreements. The Department for International Trade itself stated that
“we intend to continue this collaborative approach”—
with Scotland, Wales and Northern Ireland—
“as we develop the UK’s future trade policy.”
Admittedly, the DIT has been better at engaging with the devolved Administrations than the Ministers currently negotiating with Brussels.
Formal consultation and consent can bring three main benefits: first, it protects the interests and represents the industries of all the UK when it comes to negotiations, not just those of England; secondly, it makes sure that the potential impact of such free trade agreements across the whole of the UK are understood in detail; and, thirdly, it enhances the democratic legitimacy of the free trade agreements. Failure to include the devolved Governments at all will lead to conflict both in terms of local interests and the impact of these free trade agreements, and in terms of sub-national and national government within the UK. These will only bring economic, social and political harm to the union.
The inclusion of the devolved Governments is made all the more crucial by the United Kingdom Internal Market Bill. This would, through the principle of mutual recognition, create a situation in which any good that meets relevant regulatory requirements relating to sale in the part of the UK that it is produced in or imported into can be sold in any other part of the UK without having to adhere to the relevant regulatory requirements in that other part.
If Scotland and Wales are excluded from having an input into these trade talks, along with Northern Ireland, they will face the double whammy of not being able to protect their markets from imports they see as potentially harmful to domestic industries, as well as their domestic legislation on product and food standards being rendered null and void because it will apply only to locally produced goods. There is literally nothing the devolved Administrations could do to protect their local interests and concerns—something that has been to the health and benefit of the UK for the past 20 years of devolution.
These amendments are the “bare bones” when it comes to ensuring that a free trade agreement will be in the interests of the UK as a whole. They mean that Scotland, Wales and Northern Ireland will see the details of a free trade agreement in advance and will be able to scrutinise it, and that their consent will be required. These amendments should be seen as ensuring the balance and health of the union, not as undermining it.
Although there is relatively good communication between civil servants in Whitehall and the devolved Administrations on progress and issues raised in the UK’s negotiation of free trade agreements, it is no guarantee against serious mistakes or dangerous decisions. We have to show trust in the elected representatives, democratic legislatures and responsible Executives in each part of the UK. To need their consent for a free trade agreement that could have such a direct impact on their economy, policies and regulatory effectiveness is surely a reasonable expectation of any pro-union UK Government, as this Government purport to be.
I understand why this Government may be wary about calling for a consent power from devolved Governments, which might be implied by Amendment 61, in my name and those of my noble friends, on the outcome of trade negotiations, because, under the current system, this would enable any one of the devolved nations to perpetually block a trade agreement: for example, the Scottish nationalists could simply refuse to endorse a trade agreement that would benefit the rest of the country, leading to deadlock.
But Amendment 61 does not explicitly call for a consent power. It requires the consent of the devolved Governments, ideally—as my noble friend Lord Wigley mentioned and the Welsh Government advocated—through a Council of Ministers model, with a form of qualified majority voting in place of the current joint management committee, which has been dysfunctional and, frankly, worse than useless. This model would require the UK Government—since it represents England, with its disproportionately large population and share of GDP—to secure the agreement of at least one devolved Administration before overriding any devolved Administration that wanted to exercise a veto.
While many federal countries have arrangements that give the lower tier of government some control over international negotiations, none, except Belgium, gives individual substate territories a veto. Labour Welsh Ministers and our party’s Front Bench have been clear in the past that they would not support the SNP and Scottish Government’s contention that each devolved Administration should have an absolute veto over each trade agreement. My noble friend Lord Stevenson’s Amendment 57 requires devolved Administration consent, although admittedly in a context where Parliament would have proper oversight over trade policy negotiations, which is certainly not the case under the Bill.
Therefore, I hope that the Minister, in responding, will support the principles behind our two Amendments 61 and 62 and, if he has any technical objections rather than objections in principle, will come back at Report with government amendments that we can all support.
My Lords, it is a pleasure to follow the noble Lord, Lord Hain. I find myself in agreement with much of what he said. I speak to Amendments 26 and 27 in this group. As we have heard, they both address the same point about engagement with the devolved Administrations when a Minister of the Crown is exercising the powers conferred by this clause. I am grateful to them for raising this subject, which I raised at Second Reading. As I think the Minister will recognise, how devolution is addressed in the Bill is most important and has to be handled wisely, as the noble Lord, Lord Wigley, so rightly said.
Of the two amendments before us, I prefer that in the name of my noble kinsman Lord Stevenson of Balmacara. That is because the context for this discussion is the making of orders by delegated legislation, which is the privilege of Ministers, not of legislatures. Obtaining the consent of the relevant Minister in the devolved Administrations, rather than of their legislatures, seems the better and easier route in this context. But that is a side issue; the issue of principle matters. I agree with and endorse the points that the noble Lords proposing these amendments made in support of them.
I take this opportunity to thank the noble Lord, Lord Grimstone, for the very helpful reply he gave to a letter that I wrote to him, after Second Reading. This came about because I happened to be in the Chamber and took part in the debate personally, so I was able to take advantage of the opportunity, which noble Lords participating virtually do not have, of catching a moment with the Minister afterwards. I asked him why, as was the case, he had not answered the questions that I put to him in my speech. The noble Lord, Lord Stevenson, also noted the lack of any response to them, as he recalled when he was speaking in this debate yesterday. Very kindly and without hesitation, the noble Lord, Lord Grimstone, invited me to write to him instead, and gave me his email address. That is how this letter to me came about, and I am most grateful to him for the generous way he responded to my inquiry.
While I do not agree with everything it says, this letter has provided far and away the best and most thorough explanation that I have received for the Government’s approach to amendments asking for consent to be obtained from the devolved Administrations to be put in the Bill, and why they have almost always been refused. Although I greatly regret the refusal, it at least shows that the Government are thinking about the issue.
I am sure that we will have to return to this in the different and much more controversial context of the United Kingdom Internal Market Bill, on which a storm is brewing with the devolved Administrations about UK market access provisions, which is every bit as powerful as that for Part 5 of the Bill. But the context here is different: this Bill is concerned with international agreements for which, although implementation is devolved, the UK Government are ultimately responsible internationally. Both the Scottish and Welsh Ministers have recommended that their legislatures give their consent to the Bill, so we are in much calmer territory, but I wish to support these amendments and to explain why.
I start by taking up a point that the noble Lord, Lord Stevenson, made at the outset of his speech. Referring to the Sewel convention, he said that the question of whether it should or could apply to delegated legislation is still open. The time has come for us to put that to bed, once and for all. It should now be recognised on all sides that the principle of the convention extends to delegated legislation by UK government Ministers in the same way as it does to legislation by the UK Parliament. In view of the importance of the matter, perhaps I can be allowed to say why that is so. I have the following reasons.
First, there is no doubt that, if he had been asked about this at the time, Lord Sewel would have said that his remark applied to the use of delegated powers too. It did not occur to any of the noble Lords who were there 20 years ago to ask him about this, because the idea that delegated powers might be used in this area was nothing like as obvious as it is now. Today, we all appreciate that Brexit could not be made to work across so many areas without resort to delegated legislation on a scale far removed from what we were used to that long ago. That is why the issue has been raised time and again during this process.
Secondly, the convention, as first formulated by Lord Sewel—recorded more formally in a memorandum of understanding and put into statutory language by Section 2 of the Scotland Act 2016—refers to legislation by the Parliament of the United Kingdom only. But we are dealing here with a convention, a political statement, and not black-letter law. What really matters is the principle that lies behind it. There is no logical reason whatever for not applying the Sewel principle to delegated legislation too.
Thirdly, we need look only to what happens in practice. There is a very high level of engagement, at official level at least, between the devolved Administrations across the board and the UK Government. There is no suggestion there that the fact that delegated legislation may be in prospect, rather than primary legislation made in this Parliament, makes any difference.
Finally, there is the noble Lord’s letter. It contains an express commitment that the UK Government will not normally legislate using the Bill’s powers—these are delegated powers—in areas of devolved competence without consent of the relevant devolved Administration, and never without consulting them first. There it is: Sewel applies here too. It applies across the board.
To cement this into our practice, so that we can refer to it whenever it is needed, we should give this commitment a name. I would call it the Sewel principle. It is striking, and to the Government’s great credit, that nowhere in the letter is it suggested that we are limited nowadays by the precise wording of the convention. It is the Sewel principle that is being applied now. Although the memorandum and statute are silent on the point, they do not exclude this approach so, please, let us say farewell to any idea that the question of whether it applies to delegated legislation is still open.
As for the reasons given in the letter for the Bill not providing that UK government Ministers must seek the consent of the devolved Administrations, I will make a few points. First, it is said that to do that would discourage consensual intergovernmental working and incentivise bringing disagreements to the courts. Reference is made to the case of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill in the Supreme Court as an example of the lengthy litigation that may result. I simply do not follow that argument. Surely the best and most secure way to avoid disagreements is to proceed by consent. That is what these amendments seek to achieve. They are all about settling disagreements, as the noble Lord, Lord Wigley, said.
As for the Supreme Court’s continuity Bill case, the situation was entirely different. That case dealt with the Scottish Parliament’s response to the UK’s withdrawal Bill, to which it had refused consent. If it tells us anything about what we have here, it is that if you proceed without agreement, there may be trouble. That is what these amendments, if passed, would avoid.
Then it is said that to put the commitment in the Bill risks undermining the principle enshrined in the devolution statutes that international trade is a reserved matter and that, as a matter of international law, the UK Government are ultimately responsible for ensuring compliance with our obligations, even in devolved areas. Yes, the devolution statutes state that international relations are reserved matters: see, for instance, paragraph 7(1) of Schedule 5 to the Scotland Act 1998. But look at the wording of paragraph 7(2), which states:
“Sub-paragraph (1) does not reserve … (a) observing and implementing international relations … (b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.”
It could not be plainer.
Implementation, which Clause 2 is about, is devolved. It is a matter entirely for the devolved Administrations, not UK Government Ministers or the UK Parliament. It is devolution itself that is being undermined with this reasoning, not the principle that international trade is a reserved matter. There is more than a hint here of the very worst of parents that the noble Baroness, Lady Humphreys, was talking about so well in her speech yesterday: the devolved Administrations must be kept in order and, like little children, cannot be trusted to behave themselves.
Let us be clear. The idea that the UK Government can tell the devolved Administrations what to do and what not to do to ensure compliance when implementing these agreements finds no support whatever in the wording of that paragraph. It is entirely at odds with the devolution settlements. It for the devolved Administrations to make their own democratic choices, as the noble Baroness, Lady Bennett of Manor Castle, said. I support these amendments.
The noble Baroness, Lady Neville-Rolfe, has withdrawn, so I call the noble Lord, Lord Bruce of Bennachie.
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Hope. The strength of argument he has put behind these amendments and the analysis that he always brings to bear are very forceful. I am grateful to all those who have spoken in this debate, because the Minister should be clear that they have articulated not only a very clear strength of feeling but a really strong force of argument behind all these amendments and the need to maintain the devolution settlement. Of course, all these amendments have devolution at the heart. How it is handled by the UK Government requires a huge sensitivity which, as a number of noble Lords have pointed out, has not always been displayed.
I shall speak specifically to my Amendments 27 and 76, and to Amendment 30, which I have signed. I am grateful to my noble friends Lady Humphreys and Lady Suttie, and the noble Lord, Lord Wigley, for signing Amendment 27, and to the noble Baroness, Lady Bennett, who certainly indicated some support for Amendment 76.
Far-reaching decisions under the Agriculture Bill, the Trade Bill and the forthcoming Internal Market Bill put the devolution settlements and the integrity of the United Kingdom under immense strain. This has been stressed by pretty well every speaker in this debate. It has come about because the umbrella of the European Union, which set the framework, is being removed, so powers that revert to the UK have to take account of the devolution that took place while we were in the EU. Some of the powers are fully devolved and come to the devolved Administrations. Some are reserved. All this requires that the powers that come back to the regions are not overridden. Those that are reserved, are reserved. That is clear. Those that are hybrid are clearly open to debate. But what is emerging is that some that are theoretically devolved are being clawed back by the Government’s interpretation of what is reserved.
These amendments seek to test the Government’s good faith and ensure that decisions that may radically alter the terms of trade for companies, the public sector or individuals within any or all of the devolved Administrations are taken in a fair and objective way. Amendment 27 requires the Government to secure the consent of the devolved legislatures to any regulations under the Bill, and proposed new subsection (6B) suggests that if two of the three devolved legislatures do not consent, the regulation should not proceed. Effectively, this is an exploratory amendment to see to what extent the UK Government respect the settlements and wish to achieve unanimity—or at least, as the noble Lord, Lord Hain, suggested, qualified majority support. I think most of us accept that it would be unreasonable to allow one devolved Administration to have a veto, but it is equally unreasonable to allow the one devolved Administration which is also the UK Government to have a veto over the three devolved Administrations, which is what the Government are proposing in the Bill.
Amendment 78 seeks to embed the role of the Joint Ministerial Committee, which has been underregarded to date. It has brokered the agreement on common frameworks, which will be subject to this House’s new committee, of which I am a member. However, it has not been the vehicle for negotiation and compromise that some had hoped for. It was envisaged by many that it would be the vehicle by which consensus could be secured. The amendment requires it to meet prior to concluding a free trade agreement and to secure the consent of the devolved Administrations.
What we are talking about in practice here is that trade agreements are treaties and treaties are reserved. Under the EU, our devolved Administrations could not, at least before we left, make common cause with subnational Parliaments and Governments across the other 27 member states. We are all familiar with the role of Belgium’s provincial Parliaments in ratifying EU treaties, and nobody in these amendments is seeking to give any of the devolved Administrations in the UK a comparable power—but once the power lies with Westminster and Whitehall, there is no Europe-wide constituency to pursue. There is no consensus to be built up across like-minded legislatures elsewhere, other than the three devolved Administrations, which have different priorities but common values and common concerns.
If the Government chose to conclude an agreement that lowered food standards, perhaps compromising Scotland’s prime beef sector, it would surely be essential that this was agreed by the Scottish Parliament. Indeed, I challenge the Minister to say under what circumstances the Government could justify that without securing such consent. If public procurement was amended to allow elements of the health service to be available for foreign investment, or for previously non-approved drugs to be allowed, or financial regulations to be lowered or changed in ways that were detrimental to Scotland’s important financial services sector, should the people of Scotland and their representatives not be consulted in a meaningful way?
I take on board the point made by the noble and learned Lord, Lord Hope, about whether it should be Ministers or legislatures—but, as he said, that is a matter of detail. The principle is that the voice of Scotland should be taken into account, and the same would apply on comparable issues in Wales and Northern Ireland. Of course, England needs devolution, and if the Government could find a democratic way of consulting the English regions, it could add a valuable balance. But the fact that that has not been done should not be used as an excuse to say that the devolved Administrations cannot expect to have their views given the weight that these amendments are trying to secure.
Ministerial insensitivity and indifference are, frankly, turbocharging nationalism and separatism. Next year’s elections will be hard fought between the extremes of what to me is a fantasy independence agenda and a UK Government cavalier about their claim to be unionist, and another crisis may engulf us all. I therefore urge the Government to wake up, think and engage, and at least to adopt the spirit of these amendments and show respect to the devolution settlement and an understanding of how to secure a positive way of working.
Dispute resolution will be required. The Government should accept that, ideally, we would like to see government amendments which take the spirit of the amendments that have been debated today and put it on the face of the Bill. That would ensure that any disputes are properly handled in an objective, fair and independent way, and that it is not just a matter of the assurance of a Government who, in the Bill, are saying that ultimately, in the event of disagreement within or across the devolved Administrations, the UK Government, representing the English devolved Administration and the UK, will override the wishes of the devolved Administrations. If the Government seek to do that, they will put a huge explosive under the continuing functioning of the United Kingdom.
It is important that the strength of feeling and the strength of argument that these amendments have demonstrated to the Government require a clear vision from government, and for it to be put on the face of the Bill before it is enacted.
My Lords, as I respond to this continuing debate today, I welcome the opportunity to discuss the important issue of the devolved Administrations’ role in international trade and to demonstrate the significant strides that the Department for International Trade has taken on this matter since the passage of the Trade Bill 2017-19. I have listened to the arguments, and the essence of this debate has been a discussion on the balance between devolved and reserved, and, as the noble Lord, Lord Bruce, said, its link to the test of good faith. There are bound to be differing views on what that balance should be.
During the passage of the previous Trade Bill, the UK Government conducted a significant programme of engagement with the devolved Administrations and your Lordships’ House to ensure that the Bill delivered for all parts of the UK, including regular meetings with devolved Ministers and attending the devolved legislative committees. As a result of this engagement, the UK Government made a number of amendments and commitments to address the devolved Administrations’ concerns. This led the Welsh Parliament to consent to the relevant clauses of that Bill. We are conducting a similar programme of engagement for this Bill and have included all the amendments and restated all our commitments that we made to the devolved Administrations. As a result, the Welsh Government have once again recommended consent to the clauses that were contained in the previous Bill.
However, we have also gone further on this Bill and have made an additional amendment to remove a restriction on the devolved Administrations’ use of the powers in the Bill which the Scottish Government previously objected to. As a consequence, I am pleased that the Scottish Government have now also recommended consent to the Bill, and—to be helpful to the noble Baroness, Lady Ritchie—we are working very hard to ensure that the Northern Ireland Executive also feel able to do so. That the Welsh and Scottish Governments have already recommended consent demonstrates that the Bill is already drafted in a way that respects the devolution settlements. Indeed, in its report on the Bill, the Constitution Committee of your Lordships’ House welcomed the progress that we have made on this matter and made no recommendations for changes to devolution aspects of the Bill, which it might otherwise have done.
On Amendments 26, 27, 31 and 99, as many noble Lords have highlighted already, international trade is a reserved matter under the devolution settlements. However, the noble and learned Lord, Lord Hope, rightly noted at Second Reading and today, in line with the noble Baroness, Lady Humphrey, on Tuesday, that the implementation of international obligations in devolved areas is a devolved matter. We absolutely recognise the devolved Administrations’ competence in this area, which is why the Bill confers powers on them so that they are able to implement our continuity agreements where they touch on devolved matters.
As the noble and learned Lord, Lord Hope, also noted at Second Reading, these are concurrent powers that also allow the UK Government to legislate in devolved areas. We have sought to put in place concurrent powers to provide greater flexibility in how transitioned agreements are implemented, allowing each devolved Administration to implement the agreements independently in some cases, but also allowing the UK Government to legislate on a UK-wide basis where it makes practical sense to do so.
We understand that those powers should be used appropriately, which is why the Government have committed that we will not normally use the concurrent powers to legislate within devolved areas without the consent of the relevant devolved Administration, and never without consulting them first, as the noble and learned Lord, Lord Hope, said. We have also put in place a five-year sunset provision on the concurrent powers in Clause 2, which can be extended for further periods only with the agreement of both Houses of Parliament. We recognise that this would also extend the devolved Administrations’ and the UK Government’s ability to use the powers in devolved areas, and have therefore committed to the devolved Administrations that we will consult them before extending the sunset.
To answer a question raised by the noble Baroness, Lady Humphrey, on Tuesday, any regulations made under the Clause 2 power by the devolved Administrations will be subject to the affirmative procedure and will be scrutinised by the devolved legislatures in accordance with their normal procedures. The devolved Administrations and legislatures have also put in place arrangements for the scrutiny of EU exit statutory instruments made in devolved areas by UK government Ministers. For example, the Scottish Government and the Scottish Parliament have a protocol on the scrutiny of Scottish Ministers’ decision to consent to UK government secondary legislation on devolved matters. In their memorandum recommending consent to the Bill, the Scottish Government stated that the Bill’s powers would fall under this protocol and that this will provide their Parliament with the opportunity to scrutinise this legislation. The other devolved Administrations and legislatures are of course able to establish similar arrangements.
These working arrangements are well tested from being used for other EU exit SIs such as those made under the EU withdrawal Act, so the devolved Administrations and legislatures know exactly what procedures will fulfil our commitments in practice. That reassurance has enabled the Welsh and Scottish Governments to recommend consent to the Bill, which I alluded to earlier.
However, Amendments 26, 27, 31 and 99 would go further by placing our commitments on the face of the Bill. I am afraid that I cannot support these amendments, and I will explain my reasons why.
First, placing these commitments in statute risks legally undermining the important principle which Parliament enshrined in the devolution statutes: namely, that international trade is a reserved matter. While in practice the Government work closely with the devolved Administrations on international trade policy, it is important that its legal status as a reserved matter is preserved. The proper functioning of reserved powers is as vital to the devolution settlements as that of devolved powers.
Secondly, it would discourage consensual intergovernmental working and incentivise bringing disagreements to the courts rather than resolving them through political means. As the recent continuity Bill Supreme Court case demonstrated, litigation of this kind can be lengthy and complicated, undermining the fundamental purpose of this Bill, which is, I remind noble Lords, to maximise certainty and continuity of trading arrangements.
Thirdly, as the noble Lord, Lord Stevenson, and the noble and learned Lord, Lord Hope, noted, the Sewel convention, which our commitment is modelled on, has served this country well. That convention is not legally binding, so the noble Lord must agree that it is not necessary for a commitment to be enforced in statute for it to provide reassurance to the devolved Administrations and to your Lordships’ House.
We have already begun to fulfil some of the commitments we made to the devolved Administrations during the passage of the previous Bill. For example, in relation to trade remedies, we have begun notifying the devolved Administrations of the transition reviews undertaken by the Trade Remedies Investigations Directorate, which will be carrying out the functions of the Trade Remedies Authority until it is established by the Bill. This has allowed the devolved Administrations to consider becoming a contributor to these investigations and to submit information to the review.
In answer to a question raised by my noble friend Lady McIntosh, who asked how the UK Government are working with the devolved Administrations to prepare for the end of the transition period, our work on trade remedies demonstrates that the UK Government are ensuring that all parts of the UK are ready for the end of the transition period. The Department for International Trade has also been working closely with the devolved Administrations to ensure continuity of trade for the whole of the UK for the end of this period. The Bill is an essential part of those preparations, and we have already begun to discuss with the devolved Administrations what regulations may be required in their areas to implement the continuity agreements which are within the scope of the Bill.
I cannot support Amendments 61 and 62 for similar reasons to those which I have just discussed. As mentioned, international trade is a reserved matter under the devolution settlements, and it is ultimately for the UK Parliament to scrutinise the Government’s treaty making. The negotiation of international treaties is also a prerogative power of the UK Government. This rule is not only the result of centuries of constitutional practice but serves an important function: it enables the UK to speak clearly, with a single voice, as a unitary actor under international law. These amendments would, therefore, not only undermine the important constitutional principle that international trade is a reserved matter but also weaken the UK’s negotiating positions.
On Amendments 50 and 76, as the Minister of State for Trade Policy said in the other place, we share the principle behind these amendments and absolutely recognise that, as modern FTAs cover areas of devolved competence, the devolved Administrations have a legitimate interest in our agreements. However, the arrangement that the amendments propose is already in place. Noble Lords may recall that, during the passage of the previous Trade Bill, the previous International Trade Secretary committed to establishing a new ministerial forum for trade with the devolved Administrations. I am pleased to tell your Lordships that this forum is now well established. It had its inaugural meeting in January and has met twice since then to discuss key areas, such as our objectives for the US and Japan free trade agreements.
The forum is chaired by the Minister of State for Trade Policy, who has built strong working relationships with all of his counterparts in the devolved Administrations. In addition to this formal engagement, the Minister also has bilateral and ad hoc engagement with his counterparts to reflect the sometimes fast-paced nature of trade negotiations. The department has also established regular engagement at official level on the technical detail of our trade policy, overseen by the six-weekly senior officials group. This engagement is not merely consultation but genuine co-operation between the UK Government and the devolved Administrations to ensure that there is delivery for every part of the UK. We have seen the result of that in the recent agreement with Japan.
For example, the department listened to calls from the devolved Administrations about the importance of geographical indications, and the agreement therefore creates the potential of new protection for more iconic goods from the devolved nations, such as Welsh lamb and Scotch beef. I know that the noble Lords, Lord Wigley and Lord Purvis, have on previous occasions emphasised the importance of geographical indications, and I hope that this shows that the views of this House are also being reflected in our agreements. We will continue to work closely with the devolved Administrations on our agreements with Australia, New Zealand and the United States to ensure that their views are also reflected in those agreements.
It is not just the UK Government who think that these arrangements provide the devolved Administrations with a significant voice in our trade policy. Before I make my concluding remarks—and this may interest the noble Lord, Lord Wigley—I will refute the comments made by the noble Lord, Lord Hain, on our relationship with the devolved Administrations. In evidence to the Welsh Parliament, the Welsh Government’s Minister for International Relations, the noble Baroness, Lady Morgan, said of their involvement in our trade negotiations:
“We’ve not only fed in, but we’ve actually seen the results of us feeding in, and so I think we’ve got to pay respect to the UK Government in this space, and I’m really pleased to see that that is happening.”
To answer a point raised by the noble Baroness, Lady Suttie, who spoke about trust, much work is being done and I believe that the trust is not in doubt. As the noble Baroness, Lady Humphreys, put it, we are a family of nations.
I have some final questions to answer. The noble Lord, Lord Wigley, raised a point about failing to work in partnership with the devolved Administrations. However, the establishment of the new forum for trade and the statement of the noble Baroness, Lady Morgan, which I have just read out, show that the UK Government have been working in partnership, I believe effectively, with all the devolved Administrations.
The noble Baroness, Lady Suttie, asked what involvement the Northern Ireland Executive had in our recent success on the Japan FTA. Let me say that all devolved Administrations receive the same level of engagement, and the noble Baroness should know that we engaged regularly and meaningfully with the Northern Ireland Executive on that deal. I am pleased to be able to reassure her on that.
The noble Baroness, Lady Ritchie, asked whether Northern Ireland will be included in our trade agreements. I can say to her that, in regular meetings with the Northern Ireland Executive’s Minister for the Economy, Diane Dodds, my colleagues, including the Minister of State for Trade Policy, have reaffirmed the UK’s guarantee in its Command Paper on the implementation of the protocol, established in May, that it will negotiate and deliver trade deals on behalf of all parts of the UK, including Northern Ireland.
The UK Government have worked hard to ensure that the devolved Administrations’ views are reflected in this Bill—I hope that I have put that strong argument to this Committee today—and we have made a number of amendments and commitments to address their concerns. I hope that this provides more than enough reassurance to noble Lords, and I ask that the amendment be withdrawn.
My Lords, I thank all speakers, both today and on Tuesday, for a very good debate. I think that everyone who has participated will agree that there has been a huge degree of agreement around the issues and, in some cases, on the way in which they might be resolved. I agree absolutely with the noble Lord, Lord Wigley, who said that it was interesting that these issues seem to come back time and time again and do not go away. That gives rise to the suggestion that this issue is relevant not just in relation to this legislation but on a wider scale, and we should be aware of that.
One of the two strands around which this debate has been constructed is the Sewel convention—or, as we might want to call it, in the words of my noble and learned kinsman Lord Hope, the Sewel principle, since part of it is already in statute—and whether we need to think harder about the process under which consent is obtained, both through consultation and through direct negotiation, with whom it is obtained, since there is a suggestion that the focus should perhaps be on Ministers rather than on institutions, and how that plays back into the eventual organisation that we hope to see around trade in this country. That leads into questions about structure, about the JMC and the special agreements that need to be made in that and about how we resolve disagreements, should there be any. There is no debate, I think, on whether the UK Parliament has the final say on questions of international agreements. But, as several speakers, including the noble and learned Lord, Lord Hope, said, these agreements will live only if they are implemented properly, and implementation is clearly a shared obligation between the UK Government and the devolved Administrations.
Four points came through very strongly on this, and I hope that we will carry these forward. First, there is a genuine need to protect the union and to respect and strengthen the devolution settlement. Several noble Lords stressed that, and I shall come back to that. Irrespective of how we go about things and how successful we are in the day-to-day work, we will need to have a fall-back disputes mechanism that is based on the process of consultation and getting consent but has a structure in place for the resolution of disputes that is not, as people have pointed out, heavily weighted towards the largest member in the room, which is the UK Government—acting both for the UK and as an agent for England, which is of course the most numerous part of the country. So we need trust and we need dispute resolution that commands proper confidence. We also need to work together to ensure that all parts of this work together, not just on the creation of conditions under which agreements can be struck but on the way in which they can be implemented satisfactorily to ensure that there are no disagreements on that.
As I have said already, and as others have said before me, this issue will not go away. We need to test what the issues raised today have got to say against what the Minister, who spoke before me, said. I thought that he was slightly complacent—I hope that he will not mind me saying that—as I think that there are issues here that will not be resolved simply by assertion from a ministerial position. We may well need to pick up and identify further legislation that is required. This is a very fragile situation that we are in at the moment. I urge the Minister to take careful note of what has been said today and to make sure that what has been said today is circulated widely so that the sensibilities raised in this debate are not lost. I am sure that we will return to this at later stages, but in the meantime I would like to withdraw Amendment 26.
Amendment 26 withdrawn.
Amendment 27 not moved.
We now come to the group beginning with Amendment 28. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
28: Clause 2, page 2, line 35, leave out “five” and insert “three”
Member’s explanatory statement
This amendment reinserts a Government amendment made to the Trade Bill in 2018. It proposes to reduce, from five years to three, the time period during which (a) EU FTAs can be rolled over and (b) previously rolled over FTAs can be reamended.
My Lords, this is perhaps the shortest group that we have had on the Bill so far. Not only will Members of the Committee be relieved about that, but I think it reflects a high level of consensus among the parties that it would be beneficial to restore one of the elements of the Bill that was stripped out when this Bill was brought to us in this new Session. It was very interesting to listen closely to the Minister’s response on the previous group, where he highlighted some of the changes that the Government volunteered on the previous Bill to assuage concerns that had been raised over scrutiny. Well, I hope that he will not be offended when I say that this is one that should go back in. If he is on a roll—or perhaps the Minister of State will be responding to this group—I hope he will be equally open to some of the changes.
I am grateful for the support of the noble Lord, Lord Bassam, and my noble friend Lady Kramer in moving Amendment 28. In so doing, I want to recall what the Trade Minister, George Hollingbery, said in moving Amendments 44 to 47 in the Commons, reducing from five years to three years the length of the period for which the implementing power can be used for these agreements. It was part of a suite of amendments that we seek to restore in the Bill. In moving his amendments, the Minister told Jonathan Djangoly MP:
“I hope that my hon. Friend … agrees that these amendments address the spirit of the issues he was seeking clarity on and provide enhanced parliamentary scrutiny.”—[Official Report, Commons, 17/7/18; col. 266.]
By definition, therefore, as this was part of a package which has been significantly watered down, the reductions now reduce parliamentary scrutiny. These cross-party amendments seek to restore that enhanced level of scrutiny to which the then Minister referred.
Any reader of these proceedings may be scratching their head about why it is necessary for opposition Members to restore government amendments to the previous Bill to enhance parliamentary scrutiny, because the Government have removed them. It is therefore justifiable to question why they have done it and what their motives are. Did they feel that enhanced parliamentary scrutiny was necessary when they had a small majority in the House of Commons but now, with a large majority, such a concept of parliamentary scrutiny is no longer necessary? I can only suspect that this is the case, as the substance of the issue and the concerns about the longevity of this major order-making power have not changed from the previous Bill to this—so why have the Government changed their position?
I very much hope that the Minister’s speaking notes do not include the fact that the lion’s share of these agreements have already been made, so there is no necessity to bring back the earlier sunset clause. That is hardly a convincing argument, as the number of continuity agreements made between the end of the previous Bill and the introduction of this one is marginally different. While agreement today with Ukraine is welcome, in fact some, such as with Kenya and East Africa, have fallen away. As I said on Tuesday, of the 38 agreements the Government were seeking—I remind the Committee that the Government sought to get them all signed in March 2019—20 have been agreed and 18 are yet to be agreed.
There is also the fact that they are not all the same. It would be easy to think that all the continuity agreements are of the same category and age. Well, they are not. Some are first generation, before 2006; some are second generation, which widened the scope to intellectual property, competition and customs co-operation; some are deep and comprehensive free trade areas and others are economic partnership agreements. So some of them are already in effect out of date from the time that we will start to operate with them. It is inevitable that there will be a need to update some of them, and the EU will do the same.
In fact, the process is under way for the EU to update and renew those third-party agreements. What response will we have to a third country when its agreement with the EU, that we have rolled over, is being updated by the EU? Do we keep pace with standards and commitments updated by the EU, or seek to be aligned with the US, as the Minister alluded to on ISDS on Tuesday? Five years is too long before Parliament can take a view on whether it is right to update, amend or adjust some of those agreements, or whether it is appropriate to commence discussions on a successor agreement.
I hope that the Minister will take stock of this short debate and reflect on the fact that a three-year period, which could be extended, is more appropriate than five years. I will close on a reflection on the five-year period. It would mean that no Parliament which ratifies an agreement would then be able to take a view on that agreement within that same Parliament. I do not think that is appropriate. I think that towards the end of a Parliament it is a right judgment for that Parliament to consider. The reality of the five-year power is that no one Parliament would be able to discuss the agreement that it has ratified, how it is operating and whether it needs to be updated. A three-year power would be appropriate. I think that is one reason why the previous Minister agreed to make the changes. I hope that the Government will reflect on that and restore the three-year period, and I beg to move.
In principle, I have some sympathy with the amendments. My concern goes to the heart of the ministerial discretion in appointing and reappointing members of the Trade Remedies Authority. I am attracted to a period of two terms of five years and I would be interested to know the thinking of the noble Lord, Lord Purvis, in reducing it to three years. A maximum of two terms of five years would seem more appropriate. In probing my noble friend’s thinking in this regard, I am obviously wedded to the idea of parliamentary scrutiny and would be interested to know whether he does not share my concern that there might be too much ministerial discretion in appointing and reappointing members, which goes to the heart of the independence of their terms of tenure. I will wind up by saying that I think that five years is more appropriate—unless I could understand better why three years and a maximum of six years was put forward on this occasion.
My Lords, I will be exceedingly brief. My noble friend Lord Purvis of Tweed has made the case and I am not able to better it. I just want to raise an underlying principle. I suspect that every Member of this House is very cautious of any power that enables the Government by regulation to change primary legislation of any kind. Where it is necessary to provide that power, there should generally be a principle that the time period is as short as possible and that power is as limited as possible. Otherwise, we begin to compromise the whole concept of primary legislation and the purpose and meaning of parliamentary legislation.
Three years is surely a perfectly adequate time to be able to make any implementing changes necessary as continuity agreements are negotiated and signed. The underlying principle is one that the House needs to pay attention to. Setting precedents allowing an entire Parliament to pass during which period powers are given to a Government to override primary legislation through regulation, even if it is in a constrained environment, is a principle that we must absolutely challenge.
The next speaker is the noble Lord, Lord Rooker. I will call him once more; if he does not appear, we will move on. No. I call the noble Lord, Lord Bassam of Brighton.
My Lords, Labour supports the amendments in this group. As we heard, Amendment 28 seeks to reinsert a government amendment made to the previous Trade Bill, which would reduce from five years to three years the period during which the EU FTAs can be rolled over and in which previously rolled-over FTAs can be reamended. Amendment 29 would reinsert another government amendment from last year. If the Government decide to extend the period in which to make regulations under Clause 2, any such period should not be more than three years.
In commentary, I must say that I am surprised that these sunset provisions are not already included. As the noble Lord, Lord Purvis, explained, the Government themselves made the changes last time round. Only last year, they committed to reducing from five years to three years the length of the period in which the implementation power can be used. My argument is simple. Let us put these amendments back in the Bill, so that the Minister can demonstrate the same faith in the department and in the Government as previous Ministers did to complete these rollover agreements in a timely fashion.
What has changed? Why do we face the prospect of not having these rollover periods? What is the problem with having the sunset clause as it is? If it was right last time, surely it must be right this time. I am drawn to sharing the suspicion of the noble Lord, Lord Purvis, that the advent of a larger majority has made the Government think that they do not need these provisions, but that cannot be right either. When this was discussed the last time round, the Government said that the period would be renewable by agreement in both Houses of Parliament and that they were committed to engaging the devolved Administrations in that decision-making process in advance. I hope that those points still stand and I look forward to the Minister confirming that they do, as that seems a sensible way forward, which I am sure would find agreement on all sides of the House.
My Lords, I will now address Amendments 28, 29, 30 and 32, in the names of the noble Lords, Lord Purvis of Tweed and Lord Bassam of Brighton, and the noble Baroness, Lady Kramer. The amendments would reduce the sunset period from five to three years and reduce the period by which it can be extended also from five to three years.
I am afraid that I have to say to the noble Lords, Lord Purvis and Lord Bassam, and to other noble Lords that, after careful consideration, we believe that the current sunset provisions in the Bill strike the right balance between allowing flexibility for negotiators, the ability to keep agreements operable and providing Parliament with appropriate constraints and scrutiny.
As I have said to noble Lords previously, the Government and I are very aware that at the time of the 2017-19 Trade Bill there was uncertainty and concern from Parliament as to the nature of the Government’s continuity programme. That is why the Government brought forward a number of amendments to the 2017-19 Bill. Noble Lords might be rather bored of hearing me repeat the fact that we have now signed 20 continuity agreements, so they will be pleased to know that, as the noble Lord, Lord Purvis, acknowledged, we have now signed 21. The United Kingdom and Ukraine have signed a political, free trade and strategic partnership agreement, which will help to further strengthen the partnership and serves as a foundation for a deeper strategic political and trading relationship between the UK and Ukraine. Trade between the UK and Ukraine was worth £1.5 billion in 2019 and we are committed to protecting and growing that trade. Signing this agreement will no doubt help us to do that.
We have now signed 21 continuity agreements and expect to make positive progress with remaining continuity agreements before the end of the transition period. Indeed, before this Bill completes its passage through your Lordships’ House, perhaps I will no longer have to say 21 but can come back with a higher number. I am pleased that these agreements have given Parliament more certainty as to the practical effects of the Government’s continuity programme.
I stress that our intention for this power is largely to ensure the ongoing technical operability of signed agreements into the future. I humbly suggest to the noble Baroness, Lady Kramer, that primary legislation is not the right vehicle for this. The Clause 2 power is required to ensure continuity of existing relationships and to allow us to implement obligations arising from continuity agreements over time and in all circumstances.
It may help noble Lords if I give some examples of where we see that the power might be needed. In the case of a transitioned mutual recognition agreement, we might need to change secondary legislation to update the names of awarding bodies in third countries, so that UK businesses can continue to trade freely and safely overseas, or we may need to update lists of entities subject to procurement obligations in order to reflect machinery of government changes. Noble Lords will be aware—I have said this previously—of the regularity with which Governments of all persuasions are inclined to reorganise the work of government departments. I will not refer to the shuffling of deckchairs, but this needs to be reflected in the relevant regulations in order to remain compliant with agreements.
As I said, the matter has been carefully considered by my department. Evidence suggests that a five-year sunset period is proportionate for a programme of this nature and strikes the right balance between maintaining our agreements efficiently and providing accountability to Parliament.
We of course understand the need for parliamentary scrutiny and we understand that there are concerns about the breadth of the power, which is why we have introduced provisions including the draft affirmative procedure for any regulations made under Clause 2. These changes will be scrutinised. We have committed to voluntary publication of parliamentary reports alongside signed agreements and a requirement that the sunset period can be extended only with the consent of both Houses. I humbly remind your Lordships that the Delegated Powers and Regulatory Reform Committee gave this legislation a clean bill of health when it scrutinised it recently.
My noble friend Lady McIntosh of Pickering asked about the terms of office for the Trade Remedies Authority members. If I may, I will address that point carefully when we come to that group later in Committee.
Given this strong record on scrutiny of continuity agreements and the essential nature of the use of the power over the sunset clause, I invite noble Lords not to press these amendments.
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Stevenson of Balmacara.
My Lords, I was delighted to hear from the Minister that a new trade agreement has entered the books. Could he confirm that the same arrangements that apply to the Japan agreement will apply to that agreement in respect of the ability of the International Trade Committee and the EU International Agreements Sub-Committee to have view of the documentation and to make a response to Parliament, should they wish to do so?
I thank the noble Lord for that question. The arrangements that we have put in place in discussion with the committees for the Japan free trade agreement relate to the fact that we described it as an enhanced continuity agreement, which is why we have been putting it through enhanced scrutiny compared to other free trade agreements. This latest agreement, the Ukraine free trade agreement, will be scrutinised in the same way as other continuity agreements were previously scrutinised.
My Lords, I am grateful for that response to the noble Lord, Lord Stevenson, because I think the Minister—and I hate to say this to him—is wrong. Parliament will not have the ability to scrutinise continuity agreements going forward that it did last time, because the Government have removed the reporting to Parliament on differences.
The Minister has just outlined the Ukraine agreement. I was happy to mention it and pleased to hear the Minister refer to it. If that helps continuity in our trade, I support it strongly, but what the Minister described as the title of the Ukraine agreement is not what we had. As I mentioned before, there were four different criteria or four different categories. We had a deep and comprehensive free trade area with Ukraine, and it does not sound as if we are replicating that. In the past, we had the fact that the Government were bringing forward reports to show any differences between the two. I am not sure if it is in order for the Minister to reply to this, having summed up—I do not think it is—but I am sure I will return to this further on. It might even be on the next group. There are potentially considerable differences and, under the Bill’s proposals, we would see that they are considerably weaker. I hope that the Minister might be able to reflect on that during the course of Committee.
I am grateful for the contribution of the noble Baroness, Lady McIntosh, and can clarify to her that these amendments relate to the sunset clause of the order-making powers. We will come to the TRA elements later on, but she raises good questions that we will discuss under the TRA aspect.
My noble friend Lady Kramer made a strong point.
Sitting suspended for a Division in the House.
My final sentence, almost literally, is to agree with my noble friend Lady Kramer. She was indicating that if the purpose of these powers is to implement agreements, then three years is an appropriate amount of time for us to know if there have been any major difficulties, and whether a new agreement should be made.
We will of course reflect on what the Minister has said. No doubt as we discuss the next group, which includes Amendment 36, the Minister will have a response with regard to the duty for the Government to report “any significant differences” between proposed agreements and those that existed with the European Union. I am pretty certain that he will, given our discussion during the adjournment for the Division. I look forward to hearing that but, for the moment, I will reflect on what he has said and beg leave to withdraw the amendment in my name.
It is open to the Minister to respond to the question earlier, should he wish to do so. If he does not, is it your Lordships’ pleasure that the amendment be withdrawn?
Amendment 28 withdrawn.
Amendments 29 to 34 not moved.
Clause 2 agreed.
My Lords, we now come to the group beginning with Amendment 35. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
35: After Clause 2, insert the following new Clause—
“Parliamentary approval of trade agreements
(1) Negotiations towards a free trade agreement may not commence until the Secretary of State has laid draft negotiating objectives in respect of that agreement before both Houses of Parliament, and a motion endorsing draft negotiating objectives has been approved by a resolution of both Houses of Parliament.(2) Prior to the draft negotiating objectives being laid, the Secretary of State must have—(a) consulted each devolved authority on the content of the draft negotiating objectives, and (b) produced a sustainability impact assessment including, but not limited to, an assessment of the impact on food safety, health, the environment and animal welfare.(3) The United Kingdom may not become a signatory to a free trade agreement to which this section applies unless a draft of the agreement in the terms in which it was to be presented for signature by parties to the agreement has been laid before, and approved by, a resolution of both Houses of Parliament.(4) Before either House of Parliament may be asked to approve by resolution the text of a proposed free trade agreement, the Secretary of State must—(a) consult each devolved authority on the text of the proposed agreement, and(b) lay before both Houses a report assessing the compliance of the text of the proposed agreement with any standards laid down by primary or subordinate legislation in the United Kingdom including, but not limited to, legislation governing or prescribing standards on food safety, health, the environment and animal welfare.(5) In this section—“devolved authority” has the meaning given in section 4(1) of this Act, and“free trade agreement” means any agreement which is—(a) within the definition given in section 4(1) of this Act, and(b) an agreement between the United Kingdom and one or more partners that includes components that facilitate the trade of goods, services or intellectual property.”Member’s explanatory statement
The new Clause ensures parliamentary approval is required of the Government’s negotiating objectives prior to negotiations commencing towards a free trade agreement; and requires parliamentary approval of free trade agreements before the UK becomes a signatory to any agreements.
My Lords, this group follows on naturally from the previous group and relates to parliamentary approval of agreements. In moving Amendment 35, I will also speak to the others in the group.
I was pleased on Tuesday last week to hear the Minister allay the concerns of the noble Baroness, Lady McIntosh of Pickering, about the lack of parliamentary accountability in continuity agreements. He said:
“I reassure my noble friend Lady McIntosh that the agreements that this amendment seeks to exclude have been subject to comprehensive EU scrutiny processes at mandate, negotiation and concluding stages. We were fully involved in those processes.”—[Official Report, 29/9/20; col. GC 31.]
Yes, we were involved through our MEPs. It is worth developing what the Minister was referring to a little further. I am grateful to him for bringing this comprehensive scrutiny process to the Committee’s attention. It prompted me to do a little more research, because I was interested in what he said.
The European Commission document, Negotiating EU Trade Agreements: Who Does What and How We Reach a Final Deal, illustrates the stages at which elected parliamentarians are involved and have a say in the process. At the stage of preparation, the Commission informs the Parliament of any proposed agreements. I accept that that is the case here. The second element is that the Commission “automatically sends” the negotiating directives to the Parliament; that does not happen here. The Council then
“adopts a decision authorising the Commission to open negotiations.”
On the negotiating stage, it says:
“When the Commission plans to table negotiating proposals with its counterparts, it … informs the European Parliament about them”.
That would not happen here, under the Government’s proposals. The Commission
“also informs the European Parliament at every stage of the talks about the latest developments.”
The European Parliament may make resolutions about the trade negotiations, based on those discussions with the Commission. Those resolutions are positions which the committee could take on whether the talks should proceed to the next stage. That is not happening here, but it happened under our previous continuity agreements.
At the next stage, the Commission sends final texts to the Parliament. When the Government announced that we had reached agreement with Japan, the Minister repeated the Statement by the Secretary of State. He told me and others in the House then that we should wait and see for the published text, which is very different from what our MEPs were able to have. At the finalising stage, the document says:
“The Commission sends the Council and Parliament the text of the agreement”,
when it is ready for signature. That will not happen here either. Finally, the Council agrees the text for the signing; in effect, that is the equivalent of a Government signing using the royal prerogative. I reached the conclusion that the Minister was right: this scrutiny and accountability by elected parliamentarians was indeed comprehensive.
This amendment, as with others in the group, is in effect a continuity amendment. It seeks to roll over the provisions that UK parliamentarians had in the making of FTAs, which they should also have going forward. I see no merit in disruption to parliamentary accountability. I see less merit in Northern Ireland parliamentarians being disenfranchised twice: first, as they have no MEPs to have a vote on trading regulations covering the single market, which this home nation will continue to be a member of; secondly, at Westminster, where they will have a say in trade agreements that will also affect them. This bare reality is now being seen in the Northern Ireland Assembly, as referred to on an earlier group by my noble friend Lady Suttie and others.
The Government’s discontinuity proposals can be seen in contrast to those of our biggest non-EU partner, the United States. It has been suggested that parliamentary decision-making, accountability and approval along these lines would bind the hands of our negotiators. In the United States, the Bipartisan Congressional Trade Priorities and Accountability Act 2015 sets the parameters of US trade policy and the negotiating objectives, as I mentioned in an earlier debate in Committee. Robert Lighthizer, the US trade representative, does not strike me as someone continuously bemoaning the fact that his hands are tied by Congress.
Congress delegates to the Administration the negotiation of agreements as our Parliament does to its Executive, but after the mandate has been agreed by Congress and Congress has nominated participants in the process, the trade representative knows the parameters of what will be acceptable and what will not be. That strengthens his hands; it does not bind them. Now, our MPs will not be empowered much more than being given information that the Government wish to share at the time of their choosing, at their discretion, on an ad hoc basis and not through a legislative framework.
The noble Baroness, Lady Bennett, and others have indicated how these agreements are so different from their predecessors. Liz Truss, the Secretary of State, says that we will go way beyond continuity in the Japan agreement and have scrutiny that goes way below what was there for the original Japanese agreement. However, the Minister has said that we will go beyond the CRaG process for that agreement—but not as far as the Japanese Parliament; the National Diet will vote in both its houses on the Government’s proposals before ratification. Why will we not have that ability?
Earlier in Committee, the Minister said that
“when negotiating new free trade agreements we have gone above and beyond the baseline CRaG process”.—[Official Report, 29/9/20; col. GC 32.]
Why? If CRaG is so good, why have the Government decided to go beyond it? Why did they feel that they should go above and beyond? What did they recognise as deficient in the CRaG process and something that they wanted to go above and beyond? Can the Minister explain? If his position—I commend him for it—is that the CRaG process is the baseline, why not do this for all agreements going forward and make a statutory framework so that everything is clear? Parliamentary scrutiny and accountability should never be dependent on the discretion of Ministers telling us what they think we should know and when. Last week in the Commons, Mr Speaker warned of this in stark terms. In an earlier debate, the noble Lord, Lord Lansley, eloquently made the case that it would be unthinkable to do this for our health system, so what is materially different for our trade system?
Let me be clear on what the Minister has told us: that British parliamentarians were involved in comprehensive scrutiny and accountability for the mandating, negotiating and concluding stages of our continuity agreements and that, for new agreements, CRaG is the starting point and the Government are willing to go above and beyond it—all okay so far. This amendment would put on a continuity footing a comprehensive approach that we believe is appropriate given the scale and breadth of trade agreements going forward. It builds on the CRaG baseline.
Finally, I have reflected on what Ministers have said repeatedly, both during debates on this Bill and previously, about the CRaG process. I reread the Second Reading debate on what was then the CRaG Bill. Interestingly, in his speech outlining it to Parliament, Jack Straw made a point of separating EU treaties from the CRaG process. He said:
“That is because there is already more extensive provision requiring those to be ratified by this House and by the other place.”—[Official Report, Commons, 20/10/09; col. 805.]
Even at the outset of the CRaG process in 2009, a distinction was made that European treaties, which have different processes, would be considered as different from others. In these amendments, we argue that CRaG is the baseline and that we should put building on it on a statutory basis so that there is proper accountability and scrutiny for Parliament for deep and comprehensive trading relationships going forward. I beg to move.
I support Amendments 47 and 98, to which I have appended my name, in particular. I thank the noble Lord, Lord Purvis, for the clarity with which he introduced his amendment in this small group.
When we come to a later group, I will address the issue of what is lacking and make the case for why we need an international trade commission, but I will not rehearse those arguments now. Instead, in support of the arguments of the noble Lord, Lord Purvis, let me say that, under the current situation of CRaG and the 21 days, we will be in a substantially worse position than the one in which we have found ourselves in the past. Having been an MEP for some 10 years, I was in a position to look in detail at some of the agreements that were negotiated by the European Union on Britain’s behalf. I am sorry to put my noble friend the Minister in this position but it seems extraordinary that we will put ourselves in a weaker position than the one we enjoyed as part of the European Union when we are meant to be strengthening our position by negotiating these deals in our own right. I believe that this area has to be addressed.
Amendment 47 sets out the case for a post-ratification report and a timeframe within which it should be done. I think this is particularly important because I have looked at some of the figures that have been made available to us by both the Library of the House of Lords—I almost said “Library of the House of Commons”—and individual organisations such as the Food and Drink Federation. Food and drink is our greatest export, followed by—I am trying to think what it is called. In all three major industries, including cars and whatever we discussed in Committee yesterday—which will come back to me in a moment—all our exports to EU countries and overall have gone down substantially because of Covid.
The one that bucked the trend, interestingly, was with Norway. I understand informally from the noble Lord, Lord Purvis, that the rollover agreement has now been signed. That is good to know. Apparently, our exports to Norway went up incrementally in the last year, by some 45%. I would be interested to know what caused that. The situation is that, apart from Norway, we have suffered substantial falls in our exports. I will not repeat at length what was discussed earlier but, because of tariffs imposed on Scotch whisky, we have had a big hit on sales of Scotch whisky to the US. Therefore, I believe there is a strong argument for post-ratification support, as set out in Amendment 47. I would like a good reason from the Minister as to why that should not be the case. It goes to the heart of the case that the noble Lord, Lord Purvis, is making for the whole group of amendments on why we need to strengthen parliamentary approval of agreements and initial scrutiny of them before they come into effect.
Amendment 98 is in the name of the noble Lord, Lord Stevenson, and I have appended my name. It proposes that powers in the Bill would not come into effect without a parliamentary vote on either anEU-UK free trade agreement or ending the transition period with no deal. I realise that we are looking at continuity agreements and I cannot see why that should not be the case with continuity agreements as well. He neatly sets out why there should be further parliamentary scrutiny and a vote before a future trade agreement comes into effect.
I will look at one rollover agreement, on which the noble Lord, Lord Purvis, secured a separate debate in the last Parliament, and that was the agreement with the Faroe Islands. We export the small amount of £98 million-worth of goods to the Faroe Islands, but we import £200 million-worth, mostly of fish. That is again damaging, not just to the Scottish economy but to the rest of the UK where fish is produced. So there are a number of reasons why we as parliamentarians need to keep an eye on the trade flow with these countries. If we are not given the chance to—and I honestly do not believe that the 21 days of the CRaG procedure is enough—in my view, the Minister should come up with a very good reason why there should be less parliamentary approval than that which we enjoyed in the past. I declare an interest, in that regard, as a former MEP.
My Lords, I am most grateful to the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady McIntosh of Pickering, for so eloquently laying out the issues. In some ways, I hesitate to come in after their vast experience. But, as so often at this stage of proceedings, my purpose in supporting this amendment is not so much in the expectation that every word of it will be enacted—as we are now in Committee—but to make a very important point that I hope the Government will reflect on and address.
We are one-fifth of the way through this 21st century, and on the eve of an era where, outside the EU, we will be more reliant than ever on negotiating trade agreements. Trade policy is simply too important to be determined solely by Ministers wrapping themselves in some cloak of royal prerogative. As the Supreme Court reminded us, prerogative powers should not be used to curtail the rights of Parliament, and in particular the elected House, to hold the Government to account.
Trade agreements are not just about tariffs and expanding consumer choice. They can also restrict our capacity to decide for ourselves the standards of the food we eat and the way we manage our public services, so of course Parliament must have a role in setting the bounds of what the Government should seek to achieve and what they are allowed to negotiate away in their trade deals with countries that do not share our values or priorities. And of course Parliament must have the right to consent or not to the terms of a free trade agreement, once it has been negotiated. Given, as I rehearsed earlier in Committee, that trade agreements will inevitably impact on matters within devolved competence, the devolved legislatures and Governments must also have a role in these matters.
I do not wish to argue for a veto for each of the devolved nations in all circumstances. Ultimately, Parliament is sovereign and should decide, but Parliament and the Government must consult with and listen to the views and concerns of the elected representatives in Cardiff, Edinburgh and Belfast and, wherever possible, work with their consent, not in the teeth of opposition.
So I support the principle behind this amendment, and the whole group of amendments, to make it clear that the Bill must be amended to reflect the legitimate role of Parliament and the devolved authorities in determining the shape of our trade policy which, in turn, can determine our freedom to act in so many areas of domestic policy. I feel we will need to return to this on Report.
My Lords, I am very pleased to follow the noble Baroness, Lady Finlay. On the points she made about the relationship with the devolved Administrations, when we were debating the Fisheries Bill before the summer, I was struck by how constructive the relationship with the devolved Administrations was in deciding what the fisheries regime should look like and how it should be administered. There is a good precedent there for how we should look at trade agreements, where they bear on the industry of particular parts of the United Kingdom. We will look at that more as we go through some of the other issues, but it was a very positive illustration of the Government’s willingness and ability to work with the other Administrations.
In this group, I will speak in particular on Amendment 63, which is in my name and that of the noble Baroness, Lady Jones of Moulsecoomb. The purpose of the amendment is to strengthen the statutory provision in the Constitutional Reform and Governance Act. Noble Lords will recall the much-referred-to 21-day period. I am a member of the EU International Agreements Sub-Committee, and nothing I say today is any criticism of the way in which Ministers have been dealing with this new committee. On the contrary, they are giving us the kind of access and information that we are looking for.
But the point is that, in addition to the 21 days, there is a period before the laying of such a treaty during which it can be looked at by the relevant committees of this House and the other place. It is a matter for Ministers how long that is. Once the document is laid, the 21-day limit applies. Amendment 63 relates to the part of the Constitutional Reform and Governance Act that makes it clear that Ministers can create further periods beyond the 21 days. They can renew that period to allow for such a debate to take place in either House.
Ministers have said that, as a matter of convention, they will seek to allow such a debate wherever practical and where the parliamentary timetable allows. My point is that this should not be, in any sense, at the discretion of Ministers. Where either of the committees in the two Houses has resolved that the agreement or treaty raises issues of sufficient significance that it requires a debate in that House—in the case of either House, it might be critical of the agreement, and in the case of the other place, it could even go so far as to seek to reject its ratification—Ministers must allow such a debate to take place before ratification itself occurs. That is what this amendment does, and I hope it is effective in that regard. It requires Ministers to continue to extend the 21-day period until such time as a debate has taken place in either House where that has been sought by the relevant committee. I hope that is reasonably straightforward.
Turning to other amendments in this group, it is rather important for us just to recall that the noble Lord, Lord Purvis—I mean no criticism of him—has retabled amendments that took the form of new clauses at Report in the House of Commons. Amendments 36, 37 and 38 bear upon the issue of a report from Ministers to highlight where there is any divergence between the continuity agreement and the originating agreement between the European Union and the relevant third country. As a former member of the EU Internal Market Sub-Committee of our EU Committee here, I know that we looked at quite a number of these continuity agreements, and the idea that they were cut and pasted is actually rather limited. Even if they were intended to be a cut-and-paste job, as with the Switzerland agreement, for example, we were reminded that they were a bit like Swiss cheese: more notable for what was left out than for what was included.
The divergence is really very important. Where the Japan agreement is concerned—and, of course, I have not seen it, but we hope to see it soon, as the Minister said on Tuesday—it is not just an enhanced agreement; we also want to see how it relates specifically to the EU-Japan agreement. For example, the EU has a most favoured nation clause built in, so is it the case that that is triggered? Will we have a most favoured nation clause as well in our agreement with Japan, so that if the European Union starts to say, “Well, if you’ve given the United Kingdom this in this regard, then we want a compensating benefit”, would that benefit also accrue to us under a most favoured nation provision?
We previously discussed the question of tariff-rate quotas, and there are significant tariff-rate quotas applicable to agricultural goods exported to Japan from the European Union. The question of how they are to be distributed is quite a significant issue. Is the Japan-UK agreement wholly additional to the EU’s existing quota, or is the EU quota being reallocated in ways that will be beneficial to the UK, or is the UK reliant, as we have probably discovered, on the rest of the European Union not using its quota in respect of some goods, in which case the UK is actually dependent on whether that quota is used by the EU? These are rather significant issues, so the point of Amendments 36 to 38 is to require Ministers to tell us about that.
Ministers can quite legitimately say, “Well, that is the job of the International Agreements Sub-Committee to go away and check.” We will do that job, but it should not be a requirement to initiate such an examination. It should be taken as read by Ministers that they should present such a report as part of the scrutiny process. I note that those new clauses at Report stage in another place were actually tabled by six Conservative Members of Parliament.
That brings me to Amendment 35 which, of course, is the same as new Clause 4, which was considered at Report stage in the Commons. I have the greatest respect and sympathy for my former parliamentary neighbour, Jonathan Djanogly from Huntingdon, who was the mover of those amendments, but I will say two things. This particular amendment was divided upon at Report stage in the other place, and negatived with a majority of 63. That must make us consider whether, in due course, we actually want the House of Commons to think again. Are they likely to think again and why would they think again? They could change their minds because this goes to a central issue, which is the Government’s use of the prerogative power and the extent to which they are mandated and their prerogative power is circumscribed by a mandate from either House. It also means some significant constraint on their negotiating flexibility. This is different from the question of parliamentary scrutiny and the approval/ratification process. It can actually support negotiators in that they can say, as American negotiators quite often do, “That wouldn’t pass on the Hill.” They should be able to say, “That would not pass through Westminster.” It is something that we can use.
When we come to look at this again at Report, we should only send amendments back to the Commons which are asking them, in the other place, to strengthen the ratification process and the parliamentary scrutiny leading to ratification, rather than suggesting that we should create a whole new assumption that the prerogative power of the Executive must be overridden by a mandate from Parliament for all of these treaty negotiations. I hope that Ministers will say, in relation to Amendment 63, that they are prepared to see the conventional approach given statutory backing.
My Lords, I congratulate the noble Lord, Lord Purvis, on clearly laying out the issues in this group. I largely agree with almost everything that has been said. In fact, I put my name to Amendment 63 not only because I thought it was a good amendment but because the name of the noble Lord, Lord Lansley, looked a little bit lonely there, so I thought I would support him even though we are not natural allies on almost anything.
I am not really one for rules and regulations—I tend to kick against that sort of regimentation—but I am essentially rather law-abiding, so I have quite honestly been absolutely horrified by this Government. They are breaking the law: they are actually sending two Bills to your Lordships’ House in which they ask us specifically to break the law. I just think that that is dreadful. Parliament is actually recognised as the unwritten British constitution; it is the will and the voice of the people. We could make Parliament more democratic, but the Government are actually saying that they do not want to. They are almost saying: “Well, the discretion of Ministers is as good as anything.” No, it is not; that is absolutely laughable. It sidesteps parliamentary scrutiny in the most horrendous way. We cannot let the government majority in the Commons absolve the Government of any meaningful scrutiny. We have to scrutinise and we have to be tough.
I very much hope that, when it comes to Report, we can pull a lot of these ideas together and ensure that we send them back to the Commons and make it clear that we are actually scrutinising in a way that MPs really ought to be but are not. From my point of view, we have to embed binding scrutiny into the Bill and we have to make the MPs feel, I hope, a little bit shamed if they do not support it.
My Lords, I support Amendment 35. One of my noble friends has just sent me a message to say that I was not muted and that Members could hear me cough and laugh. I apologise. I knew that I was not muted. I am not present in person today because, while sitting through last week’s debate in Grand Committee, I started coughing. Lest I got into trouble in the current Covid circumstances, I thought that I should self-isolate. I have since been tested and my cough is nothing to do with Covid—but it was too late to attend in person today.
In Committee last week, the Minister said that he did not draw a distinction between negotiating objectives and a negotiating mandate. I think there is a huge difference between them. Objectives are something which the Government might set themselves. The Government might wish to achieve them with or without the support of Parliament. A mandate suggests something rather narrower and that would be explicit in Amendment 35.
Clearly there is a question over the royal prerogative—whether Parliament should be seeking to constrain the Government. But, as the noble Baroness, Lady Finlay of Llandaff, pointed out, it should not be used by Ministers as a way of precluding the role of Parliaments.
The noble Lord, Lord Lansley, raised some concerns about a mandating approach. Amendment 35 has two parts. The first is about negotiating objectives. Subsection (3) is about becoming a signatory to a free trade agreement. I hope that the Government might consider the two parts separately. I am not expecting the Minister necessarily to accept that Parliament should be mandating the Government’s negotiating objectives—although I would support them doing so. Could the Minister address the two issues separately, because mandating and approval are clearly rather separate issues?
A month ago in Grand Committee, we debated treaty scrutiny on the basis of three reports from your Lordships’ House. On that occasion, I had the honour of speaking immediately after the noble Baroness, Lady Noakes. She expressed considerable concern about the role of Parliament and suggested that,
“the three reports being debated show that there is an insatiable beast lurking in the committees of your Lordships’ House. This beast wants more information and more involvement on more aspects of treaty activity.”—[Official Report, 7/9/20; col. GC 123.]
I do not believe that your Lordships’ committees, or the House as a whole, or the House of Commons, are “beasts”, but I do believe that both Houses of Parliament need sufficient information to be able to scrutinise treaties. It is also appropriate for us to have sight of negotiating objectives before the Government start to negotiate. As various noble Lords have already pointed out, the scope of trade agreements is extensive. The idea that Ministers can hide behind the royal prerogative is not appropriate in the 21st century.
These are huge issues. Parliament needs a role. As my noble friend Lord Purvis of Tweed outlined in considerable detail, the European Parliament has a significant role in scrutinising and approving treaties. Now that the United Kingdom has left the European Union, scrutiny is down to Westminster. Surely we should be taking on that role. The amendments in this group—particularly Amendment 35—open the way for Parliament to do that. It is not a power grab, as I suspect the noble Baroness, Lady Noakes, is about to suggest once again, but a way of ensuring that this parliamentary democracy is able to act as such. The Government should at least look seriously at these amendments.
My Lords, it is indeed a pleasure to follow the noble Baroness, Lady Smith of Newnham, and to be reminded of a pleasant afternoon we spent last month debating reports from the Constitution Committee and the EU Committee on the handling of treaties. I think it would be helpful to remind ourselves of some of the things that were in those reports. I have to say that that afternoon I was, as I shall be today, no doubt, the only participant supporting the Government, and the rest of the participants in that debate were repeating lines we have heard already and will continue to hear on this issue.
The Constitution Committee looked in particular at the European Parliament processes which were referred to by the noble Lord, Lord Purvis of Tweed, and my noble friend Lady McIntosh, and it recommended not replicating them. There was a very clear finding that we should not replicate them, and the committee pointed out the differences with the European Parliament as a supranational Parliament. The noble Lord, Lord Purvis of Tweed, earlier referred to Jack Straw in relation to the CRaG Act. Noble Lords might be interested that he gave evidence to the Constitution Committee and advised it that he thought that copying the European Parliament’s processes was a rabbit hole down which we should not go.
The other important aspect of the Constitution Committee’s findings was that we should not fetter the royal prerogative and that some of the processes that have been put forward by noble Lords, and that have been put forward again today, do indeed fetter the royal prerogative, as my noble friend Lord Lansley said. That applies in particular to a role in negotiating objectives. The committee did not recommend that Parliament should fetter the royal prerogative in that way.
That debate and these debates come back to a lack of happiness among noble Lords with the CRaG processes. I remind noble Lords that the CRaG processes were not invented when the CRaG Bill was brought forward by the last Labour Government. Those processes were based on the Ponsonby rule, which has existed for a very long time and served Parliament extremely well on the ratification of international treaties. The CRaG Act effectively codified those processes into law and recognised the role that Parliament should have, which is at the end of the process once the royal prerogative has been used to negotiate treaties.
There has been a lot of talk about whether 21 days is enough. We have to remember that it is 21 sitting days, so that would be a minimum of five weeks and sometimes quite a lot longer, so this is not a minimalist period for parliamentary committees to go about doing their work, and I believe that on the whole that has proved adequate for scrutiny take place.
Coming on to whether extra time is needed, which is in Amendment 63 in the name of my noble friend Lord Lansley, we have to remember that CRaG allows the other place not to ratify a treaty—so, de facto, the other place already in effect has the power to require extra time by the simple act of denying approval of the ratification. That can be done an infinite number of times. The other place does not have the power to make changes to treaties but does have the power simply to refuse ratification, and that can be used effectively if the Government were perceived to be acting reasonably. As my noble friend Lord Lansley said, the Government have said that they will respond where possible to any reasonable request for further time, and I think that that is a perfectly reasonable position for us to be in.
I will comment on only one other amendment in this group, Amendment 98, which seems to be another opportunity for Parliament to disapprove of a no-deal Brexit by denying this Act to come into effect if it does not approve a no-deal Brexit. As we know, the Government do not want a no-deal Brexit, but we may not achieve a free trade agreement with the EU, and if we have to exit on a no-deal basis, that is what we have to do. Had this amendment gone into the Bill we were considering a couple of years ago, it might have had some purpose to it for those not of a Brexit persuasion to have a last gasp at trying to keep us in the EU. However, with the current electoral result in the other place, with a large majority that was elected on a clear campaign promise to get Brexit done, I cannot believe that Amendment 98 has any real place in the Bill, and I hope very much that the noble Lord will not press it if it comes back on Report.
My Lords, this is the first time I speak on the Bill; I apologise to noble Lords that I have not done so before. I am prompted to do so because of the references that have been made in this debate and in some of the amendments to the EU International Agreements Sub-Committee, which I have the honour to chair. I want to speak not so much about the detail of some of the amendments —I cannot speak with the authority of the committee as it has not taken views on some of them as such—but to lay down a marker. If some of these amendments come back on Report, I may well not be quite so reticent.
I will make some basic points about the job that we have now been tasked to do by your Lordships’ House, which is to scrutinise international agreements—not simply trade agreements, although they are obviously an important part of that. Reference has already been made to the debate which took place on 7 September, if my memory serves me right, on three reports: the report that we had produced on Treaty Scrutiny: Working Practices, alongside the report of the Constitution Committee, which is chaired by my noble friend Lady Taylor of Bolton, and the Lessons Learned report of your Lordships’ EU Committee. As we noted in our report, which is the most recent of them, at paragraph 23:
“all three reports called for greater transparency; a role for Parliament much earlier in the process of negotiating international agreements; and a proper role for the devolved institutions. Significant concerns were also expressed as to whether it was possible to conduct meaningful parliamentary scrutiny within the timetable permitted under the CRAG Act.”
We had a good debate; I repeat the thanks to noble Lords who participated in it. Sadly, the noble Lord, Lord Grimstone, was not the Minister on that occasion, so we did not have the benefit of hearing his responses to those reports—I hope that today will provide an opportunity for him to do so. However, I believe that he shares our belief, if I dare take his name in vain, that parliamentary scrutiny of international agreements is crucial and that we have moved on from the days when it was thought that the sovereign—read now the Executive—could simply enter into agreements without any involvement of Parliament.
I acknowledge that the CRaG process has changed this, at least to some extent. However, it is still ex post facto—after the agreement has been made—which gives rise to the serious problem that Parliament, whether it is the other House or the comments that this House make on it, has to take it or leave it. Under CRaG, strictly interpreted, it is not until the deal is done that the matter is subject to scrutiny, and then, in the case of the other place, the sole weapon is to withhold consent.
It is worth reflecting for a moment, as we talk about the respective roles of Parliament and the Executive, on what was said a very long time ago by the great constitutional expert Walter Bagehot. He said:
“Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous.”
That makes the point very well that Parliament ought to have a role in the conclusion of international agreements.
When we looked at it, we took a somewhat pragmatic approach. We concluded, as set out in paragraphs 31 and 32 of our report on working practices—if I may direct the Committee’s attention to it—that we appreciated that the Government were
“reluctant to amend the legislative framework and review the timetable for scrutiny”.
So the report set out a series of pragmatic recommendations, which we describe as
“proportionate recommendations to facilitate effective Parliamentary treaty scrutiny, without the need for legislative change.”
We concluded, in paragraph 32, that:
“Time and experience will tell whether it is possible to conduct meaningful scrutiny within the current timescales. Much will depend on how far the Government is willing to share information in advance of laying an agreement under the CRAG Act.”
I immediately recognise, as did the noble Lord, Lord Lansley—who also sits on the committee—a tribute to what has happened so far and particularly to the noble Lord, Lord Grimstone. He has been making an effort to make sure that our committee is kept informed of what is taking place. Indeed, we are due to see him again on Monday. That leaves us following the pragmatic approach to see how it goes. We also gave clear warning in that report that, if we do not think we are able to do the job we have been given, we will not hesitate to push for legislative change. The Bill and the amendments being made may pre-empt that.
I emphasise, as have the noble Lord, Lord Purvis of Tweed, and the noble Baronesses, Lady McIntosh of Pickering and Lady Smith of Newnham, the big change that has taken place in relation to agreements. It is one of the reasons that our committee was established: no longer will agreements, trade agreements in particular, have the detailed scrutiny that took place through the EU process, which involved Members who pursued British interests. I understand that is why the Government say there is less need for scrutiny of continuity agreements, but we are also looking at the possibility of new agreements. We have already started to inquire into the United States, Australia and New Zealand, where there will not be the benefit of scrutiny engaged in by any EU body.
We very much welcome the approach of the noble Lord, Lord Grimstone, and the department he represents, but whether that is sufficient is under consideration and it is important to know whether it works. Our report raises concerns, some of which have been raised in some of the amendments: consultation of the devolved Administrations; keeping us informed and advised of negotiations; and early sight of the text, because of the timetable. Given those, it follows that, if the Government were to accept, for example, the amendment proposed by my noble friend Lord Stevenson of Balmacara, we would be content. I do not anticipate that happening, but it does not mean that we should not consider the amendments that have been put forward. We will be looking closely at the main issue of the terms and processes for scrutiny. The way we do our work will follow through and, ultimately, take a view on whether there is enough in the process to enable us to do the job that I said we need to do.
Let me turn specifically to one aspect. It seems to me that, in his Amendment 63, the noble Lord, Lord Lansley, is absolutely right. I, too, would expect the Government to allow the time for debate—that is a critical part of the process that we are engaged in—but would it not be better if that were guaranteed, rather than us having to depend on the good will and discretion of the Government?
I too look forward to hearing what the Government say but, overall, this debate and these amendments give the Government an opportunity to show that they are truly committed to the role of Parliament in scrutiny. Obviously, warm words will not be enough, however sincerely they are expressed. Of course I recognise that the roles of the Executive and Parliament are different, but Parliament has a major role in the scrutiny of international agreements, and we hope that the Government will find a way to make sure that that is effective.
I agree with those who have said that, as we have seen in the international comparisons that we have looked at, having parliamentary involvement can give government negotiators a weapon—that is, an additional piece of leverage so that they can tell their interlocutors why they do not think that a particular thing being negotiated for will pass through the parliamentary process.
So I very much look forward to hearing what the noble Lord, Lord Grimstone, and other noble Lords have to say. If we come back to this matter in amendments on Report, I will look forward to saying more about it.
My Lords, the noble Lord, Lord McNally, has withdrawn, so I call the noble Baroness, Lady Fairhead.
My Lords, before I turn to the amendments, I will begin by welcoming my noble friend the Minister to the House most warmly, as this is the first time that I have spoken on the Trade Bill since he assumed his role. As I have been participating both remotely and in person, I congratulate him not only on his clear grip of the subject matter but on the assuredness with which he has steered the Bill through. I am particularly struck by the effective working relationships that he appears to have developed with my noble friends and with Members across the House. I have little doubt that, combined with his experience and superb track record, this will enable him to be a very effective and enormously respected Member of this House.
I am delighted that the Trade Bill has returned to your Lordships’ House, not because we shed much blood, sweat and tears over its previous incarceration—although we did—but because it is an important Bill for the UK, her businesses and her people. It creates important tools that we will need for the UK to step into the future as a strong, independent and high-integrity trading partner. I am also happy that it remains, in the words of my noble friend the Minister, all about continuity and certainty—two elements that businesses large and small, up and down the country, really value.
However, that does not mean that the Bill cannot be made even better. As I have said on the Floor of the House and as the noble Lord, Lord Stevenson of Balmacara, rightly recalled last week, it is my view that
“no legislation passes the scrutiny of this House without being improved”.—[Official Report, 6/3/19; col. 615.]
That is why I want to speak to Amendments 57 and 63 in particular, and to address the issues of transparency, engagement and parliamentary scrutiny. I have one question and one request for the Minister, both of which I will come to.
I want to be clear that I am not speaking about transparency, engagement and scrutiny of continuity trade agreements that are expected to have no significant changes. I agree with my noble friend the Minister that they have already undergone rigorous scrutiny in both the EU and the UK, and I am content that the Government will continue to publish parliamentary reports for the remainder of such agreements that are transitioning. Further, I note that any secondary legislation required to implement these agreements will be subject to the affirmative procedure, requiring debates in both Houses. However, it is here that I have my question. Can my noble friend confirm that this Bill’s scrutiny provisions apply exclusively to continuity trade agreements and cannot be used for future trade agreements, for it strikes me that the wording could be construed as so doing?
Turning to the future free trade agreements, a number of your Lordships have highlighted the importance and extensive reach of modern FTAs. They cover areas far beyond trade alone and include, among others, geopolitical commitments and environmental, food and other standards. Your Lordships have also highlighted the transparency and genuine engagement permitted by the previous scrutiny process to bodies such as civil groups, industry bodies, trade unions and many more, not least the devolved nations. Let us be clear: transparency with no ability to engage is a much weaker proposition.
Finally, a number of your Lordships, including my noble friend Lord Lilley, the noble Lords, Lord Kerr of Kinlochard and Lord Purvis of Tweed, and the noble Baroness, Lady Kramer, have previously highlighted—as did my noble friend Lord Lansley today—the benefit of having a rigorous scrutiny process which, properly structured, can have the benefit of strengthening, not weakening, one’s negotiating hand. To be clear, I am not suggesting any change to the fundamental constitutional principle that underpins the negotiation of all international treaties, including FTAs: that the making and amending of, and withdrawing from, such treaties is a royal prerogative function.
However, taking all this into account, I continue to believe that further detail and improvement is required in both transparency and engagement with wider audiences and enhanced parliamentary scrutiny. I shall direct my comments to two main amendments: Amendment 57 in the names of the noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Finlay of Llandaff, and Amendment 63 in the names of my noble friend Lord Lansley and the noble Baroness, Lady Jones of Moulsecoomb, as they aim to address these issues. They have been laid out elegantly by those who have put them forward. On Amendment 63, I agree strongly with words of the noble and learned Lord, Lord Goldsmith, that the ability to have a debate, if an issue has been raised on any of the future FTAs, is important. On Amendment 57, I support some, but not all, of its provisions. I very strongly support the need to consult. I am not fully seized by the concept of a mandate rather than objectives, but I think there are elements in Amendment 57 that should be considered and pondered by the Government.
Let me turn to transparency and engagement. Clearly, transparency needs to respect the commercial, confidential elements of negotiations. That said, interested parties across the UK need to have sufficient information in a timely fashion about the areas of discussion, the ability to submit their views and objectives and clear mechanisms for feeding in and engaging. The Government have established a number of bodies to enable this to happen: the Strategic Trade Advisory Group and 11 sector-based trade advisory groups. This is a terrific start, but I encourage the Government to ensure that those bodies are kept under review, to ensure that the appropriate, rich level of engagement is achieved to enable businesses to contribute.
Turning to parliamentary scrutiny, I realise that the Command Paper of February 2019 is not binding on this Government, but I am happy to observe that it has been complied with in practice. It is an excellent base from which to build. It required the previous Government to produce an outline approach to negotiations, including its objectives, and it had to be accompanied by a detailed economic analysis. It also committed the Government to publishing progress reports after each negotiating round, and annual trade reports across all live negotiations.
I was also encouraged by the Minister’s opening speech at Second Reading in which he referred to the proposal by the International Trade Committee of the other place for a structure providing such scrutiny and confirmed that the department was working with it and the EU International Agreements Sub-Committee chaired by the noble and learned Lord, Lord Goldsmith, on which my noble friend Lord Lansley also sits, and taking it very seriously. This could enable the UK to benefit from the rich experience of a number of your Lordships, with information being shared on a confidential basis to allow Parliament to scrutinise negotiations effectively from the start to the finish and throughout the process. This route should also allow for the committee reports to require further scrutiny in both Houses, at a minimum highlighting areas of concern to be debated.
However, I believe it is for the Government to bring forward detailed, specific plans on transparency, engagement and effective parliamentary scrutiny. I believe that working with and through the committees of this House and the other place and any successors that this Parliament deems appropriate is the way to go. That is why, although I support the underlying merits of these amendments, I do not intend to support them at this stage. However, I have a request and I urge the Minister to expedite the work with the IAC and the ITC to consider specifically the elements of Amendments 57 and 63 and to bring forward clear, satisfactory plans for enhanced transparency, genuine engagement and rigorous comprehensive scrutiny by Report or as soon as practicable after that.
My Lords, having made my maiden speech a week or so ago at Second Reading of the Bill, I am very grateful to the noble Lord, Lord Purvis, for proposing Amendment 35, to which I wish to speak, without, I have to say, the expertise of other contributors, but I shall speak in favour of the amendment on two counts, only simply, as I do not wish to repeat what has already has been said.
First, the need for parliamentary support in both Houses at a preparatory stage of reaching a trade agreement by setting objectives is wise and prudent. If parliamentary support in agreeing those objectives is required only once work on an agreement has begun and is in its later stages, it will prove nearly impossible for Parliament to wind the clock back, debate the objectives and revise a carefully crafted piece of work that has already begun. Undoing what has been worked on over a period with the other party in that agreement could also do serious damage to relationships and could threaten the finalising and reaching of an agreement, so early scrutiny by both Houses on objectives is essential. I know the argument against that position is that it might delay the process with lengthy debates and endless amendments on all kinds of detail, but surely a mechanism could be found to speed up the process even, say, in this House, and enable a fair wind to be given to agreeing the necessary objectives. Once such objectives have been agreed in one instance surely those that follow will not prove to be very different and could proceed more speedily. Agreements will vary hugely, but objectives will remain much the same.
The second reason for my support for Amendment 35 is that paragraph (b) of subsection (2) of the proposed new clause calls for a sustainability impact assessment on
“food safety, health, the environment and animal welfare.”
Selecting just two of that list, the NHS and agriculture, both need to be protected from agreements driven solely by lucrative financial gains. No one can argue against shrewd business arrangements, but finance is not the only factor to be considered. The duty to ensure the future of our fragile farming industry is crucial. Any trade deal that strengthens the decline of that sector is unwelcome. Any trade deal that advocates or allows the further dismantling or privatisation of the NHS must be resisted, and this amendment gives a strong assurance that those protections are guaranteed and are in place for years to come. We have to keep in mind more than just the present. Those who follow after us will pick up the consequences of our decisions and it is because of the seriousness of these concerns that the Bill without Amendment 35 is lacking. I give my wholehearted support to the noble Lord’s amendment.
My Lords, I speak in support of all the amendments in this group. This is perhaps a paradox, as they may—to some extent—be mutually exclusive. They also touch on a number of other amendments on the agenda of today’s proceedings.
As I said in Committee on Tuesday, the congruence of leaving the European Union and the royal prerogative in a world which is very different from the 1960s and 1970s, leaves much domestic policy, in practice if not in theory, beyond Parliament’s reach. Since the United Kingdom Government are accountable to the United Kingdom Parliament for all their activities, both inside and outside the jurisdiction, Parliament has a genuine locus to impose—or at least place—a framework around government activities abroad. These activities directly determine what happens in this country.
Now that we have left the European Union, we are in reality—to put it in crude terms—tarting our way around the foreign and trade ministries of the world in search of improved and new agreements. This is an inherent consequence of Brexit. In the circumstances, it is the only sensible response to where we find ourselves. I have no complaints about this, though being a suppliant does not necessarily enhance one’s negotiating strength.
My complaint is about the goods we have for sale. Everything is more or less on the table, as is generally the case in the grubby world of politics and, for that matter, in the marketplace. Almost everything is for sale unless it is expressly stated that it is not. There are some things which should be stated as non-negotiable from the outset. I disagree with my noble friend Lord Lansley and agree with the noble Baroness, Lady Smith. In a negotiation, there is a difference between boundaries and aspirations. This is illustrated by the slightly surprising combination of the noble Lords, Lord Alton, Lord Forsyth and Lord Adonis, and the noble Baroness, Lady Falkner of Margravine, signing the same amendment which we shall discuss later in the passage of this Committee.
Sometimes it is appropriate to simply say “no” as, for example, in the case of the topical, but historic—and not completely analogous—piece of legislation which ended slavery in the British Empire. There was no more argument after that. In the real world, a policy statement leaves the matter in question on the table and hence in play. As a number of noble Lords have said, the CRaG Act is weak and reactive, not proactive. I believe a strong framework is needed around all the Government’s activities in this area, as these amendments propose. At this stage, I am not concerned by the minutiae. Others in this debate know much more about this than I do.
No doubt, the Government will say that they need flexibility to negotiate. They do. All Governments do, wherever they are and however they operate. They should not cross our domestically generated red lines. This was what taking back control was all about. It is the logical corollary of Brexit.
My Lords, I support Amendment 35 on parliamentary scrutiny. I am grateful to the noble Lord, Lord Purvis, for tabling it. Listening to the noble Baroness, Lady Smith, I felt she was a little bit nostalgic for the European Parliament. That was not surprising. I have felt it too. It is not nostalgia we need but the procedure and ideas that came from the European Parliament when we are discussing CRaG. I will leave it at that.
However, I was encouraged by the Minister’s reply to the noble Lord, Lord Stevenson, earlier on the enhanced scrutiny process, and of course this is only the preamble for Report, which will be very important. I hope and expect that the Minister will be sympathetic to this amendment. He should be, because I believe the Government have been working hard to stretch the CRaG framework above the baseline so that they can then cover a range of issues. For example, the new FCDO is looking at improving the EMs on human rights, and in Committee we have already covered matters such as food safety, health and the environment, which are all to be covered by a sustainability EM, as mentioned by the right reverend Prelate. All these issues, as the noble Baroness, Lady Finlay, so sensitively mentioned, and as the Minister knows, are of huge importance and concern to the public, and they will loom large in the US deal. I know we are dealing with Parliament now, but we are also aware of the public.
Amendments 36 to 38 are also needed because they set out the terms of the reporting arrangements required by Parliament for every relevant free trade agreement so that it can be examined and debated properly within the narrow timeframe of 21 days. I was fascinated by the conversation of the noble Lord, Lord Lansley, about Amendment 63, which we will come back to.
NGO and trade union interest in trade deals and fair trade these days is at a much higher technical level and, although stakeholders and civil society are consulted in advance, they also need to be properly informed after negotiations are over and as every deal passes through Parliament. That is part of the process described in these amendments. We owe a lot to Jonathan Djanogly, as has been mentioned, and while I am not sure why reporting comes up in later amendments, I support those too.
The Bill is restricted to rollover agreements, but I understand from previous ministerial replies and statements that the Government are generally and genuinely ready to listen to suggestions and, as has been said, open to improving if not amending the CRaG process. We all look forward to the Minister’s confirmation of this.
Reporting on an agreement is also important for the scrutiny committees themselves, because it is part of their mandate to follow its progress in the months following ratification. I think we were grateful for the intervention of the noble and learned Lord, Lord Goldsmith. The recently concluded Japan agreement, which we will shortly all be examining, will provide the first test of these arrangements.
My Lords, I thank all concerned for contributing to this debate, which has been of a very high standard. We should all acknowledge and thank the noble Baroness, Lady Fairhead, for deciding to use this opportunity to speak to the Committee about her experiences on the 2018-19 Bill. I was sorry to hear about the blood and sweat, although I can confirm that there was just as much on our side of the table as I am sure she was correct in describing was on hers. If there were any tears, I do apologise for that; we did not have those, and I am sorry if we were guilty of inflicting them.
Because we have a range of amendments here around this topic, we have a variety of suggestions for the Government to consider on how they might engage formally with Parliament. The common thread for all of them is that they build on steps already taken and, as others have said—I support this—many of these are very welcome indeed. Amendment 35 in particular sets a very high standard at the top end of the scale, where all approvals and all considerations of final remit have to be done by both Houses of Parliament, with full engagement with the devolved Administrations. There are some very good points in this amendment, which, broadly speaking, goes with the grain of where we are coming from. However, as other noble Lords have said, this may well not be the time to repeat this amendment back to the Commons, because it was considered and defeated at that stage. I take very strongly what the noble Baroness, Lady Fairhead, said: namely, that there are elements in what is in front of us today that would allow for some progress to be made. I hope very much that the Minister will be able to signal his willingness to engage further with us when he comes to respond.
Perhaps I may speak to the amendments which are in my name or related to them. Amendment 47 has a slight change of gear. We know that most rollover agreements are still being done in very short order—we heard about the new one today. There are a lot still to come, but further negotiations may well also be required once they are done. This amendment tries to pick up that thought. Once we have passed the transition period and the free trade agreement with the EU, if there is one, is signed and implemented, and once the broader picture emerges of where the UK stands on international trade, it is almost certain that we will be back in negotiations on nearly all of the 40 rollover agreements that we have already approved. So the suggestion in Amendment 47 is that there would be a five-year review period of those agreements, particularly to facilitate our engagement there.
Amendment 53, which is in my name, sets the scene for a much more ambitious rolling programme of five-year reviews of the functions of each of the FTAs approved under the Bill, which can include all of them, not just rollovers. It lists an ambitious range of considerations to be brought into the review, which I hope will commend itself to the Minister. I look forward to his positive response. In particular, it focuses on our involvement with developing countries, as specified in Section 10 of the Taxation (Cross-border Trade) Act 2018, which we have not had the opportunity to discuss but which is relevant to the whole process of trade. It perhaps needs more attention than we have given it in this debate so far.
I thank the noble Baroness, Lady McIntosh, for her support of Amendment 98. Despite the comments of the noble Baroness, Lady Noakes, it is not about refighting Brexit; she may not have noticed but we have left the EU. This amendment tries to put Parliament back in the picture to debate the outcome of the current negotiations with the EU on a free trade agreement. We do not really know where we are on this. We understand that progress is still being made and that both sides are still discussing, but each side seems as skilled as the other in disinformation and threats. We are not therefore certain about where it is going.
But I think it is fair to point out that in their election manifesto the Government put forward the suggestion that they would be able to negotiate a deal easily, which they described as “oven-ready”. It is only appropriate that, if there is a deal, Parliament should have the chance to debate and approve it; or, if there is no deal, Parliament should still have the chance to debate and approve that. This is not about refighting old battles. It is suggesting that Parliament should have a place going forward in these issues. I look forward to the Minister’s response to this suggestion.
In a quick tour d’horizon of this group, I come to Amendment 57, which is in my name and supported by the noble Baroness, Lady Finlay, whom I thank. I would also like to talk about Amendment 63. Like the noble Baroness, Lady Fairhead, I see quite a lot of commonality in the approach to this issue through these amendments. I wonder whether we could have further debates about this outside Committee. Amendment 57 would build on the amendment agreed by the House of Lords in March 2019. As I hope the Minister agrees, it also builds on the work the Government have done in involving the Select Committee on International Trade and the EU Sub-Committee on International Agreements. In saying this, I endorse the comments made by my noble and learned friend Lord Goldsmith, who spoke very powerfully earlier in the debate.
As other noble Lords have said, Amendment 57 tries to finesse the current ad hoc arrangements, brought in by agreement between the Government and the Select Committees, and the very limited parliamentary scrutiny that the Government can provide under the CRaG Act of 2010 which, as everyone has said, suffers mainly because it is ex post hoc and because it is nuclear in terms of how it can be dealt with. In this regard I welcome Amendment 63 from the noble Lord, Lord Lansley; crucially, it would secure the time for a debate on any future trade deal because it would ensure that the Government honoured their commitment to provide the space for the committees, and Parliament, to have the appropriate debates. It does not get over the question of why we are dealing with this in an ex post hoc arrangement, but it does give us the timeframe that is missing from the debate.
So I say to the Minister that Amendment 57 may well be too detailed, and that the current arrangements for how committees consider all the documentation and paperwork provided are sufficient to ensure that proper scrutiny is given. But, as others have said, I wonder whether this is the time to get this into the Bill and ensure that it is appropriately laid out for the future. There is no other country which denies its Parliament the opportunity to scrutinise trade Bills, and no other area of public policy which is off-limits to Parliament. These omissions stand starkly exposed by the debate today.
I have been trying to step back from the individual words of the amendments and to understand why the Government are so adamantly against agreeing to open up deals to better and, more importantly, appropriate parliamentary scrutiny. With a majority of 80, they have control over the elected House, so it cannot be a matter of simple arithmetic. They have already promised most of the collaboration requested of them by the committees and their attempts to engage with wider civic society is heading in the right direction. They say that the CRaG Act 2010 gives Parliament the final say, even though it is patently obvious that, by controlling the timetable and framing the debate around a negative procedure, this is in truth a conditional and not a wholehearted engagement.
This boils down to the simple question of whether, by changing the CRaG Act process and agreeing to parts of what is in Amendment 57, you can get something that would be workable in the short and medium terms and for the long term, subject always to the experience that has been gained as we go ahead. When you add in the credit that the Government would get for stepping away from the absurdity of using the royal prerogative powers, the increase in credibility at the negotiating table that would come from the requirement to get parliamentary approval for deals being negotiated, the better decision-making and input that could flow from using the skills and expertise of both Houses across the wide range of topics that are now included in trade deals and the strengthened position in negotiations that would come from all the devolved Administrations, you have to ask what is really going on here. When people struggle to explain why they are trying to shore up their weak position and will not engage, there has to be another agenda. What is it?
The whole purpose of Parliament is scrutiny and the process requires active engagement. The Government are hiding behind the royal prerogative in order to behave like a despotic ruler of ancient times. This debate has once again demonstrated that the status quo on parliamentary scrutiny is just not acceptable to this House, to civic society or to the people of this country. I am sure that we could find a mutually acceptable way forward and I appeal to the Minister to use the time that we will have before Report to find a common, sensible solution and a way forward.
My Lords, the amendments that I will speak to now all relate to the crucial role of parliamentary scrutiny. Having listened carefully to the words of the noble Lord, Lord Stevenson, I believe that, if one puts CRaG and the royal prerogative to one side, we are in much closer agreement about what the role of the House and the committees should be in this matter than people might think.
Before I start, let me answer the question posed by the noble Lord, Lord Purvis, on the Ukraine agreement that we have just signed. The noble Lord researches his interventions so carefully that I fear that he was right and I was wrong, but I am pleased to confirm that we will voluntarily publish a report on Ukraine, highlighting the differences between the agreement that we have signed and the underlying continuity agreement. Also before I start, I thank my noble friend Lady Fairhead for her references to me, which were more than kind. I thank her very much for that.
I begin this grouping with Amendment 35, in the names of the noble Lords, Lord Purvis and Lord Fox. As I said, I believe that the noble Lords and I, along with many of your Lordships, share common ground in so far as we agree that it is important for Parliament to effectively scrutinise the Government’s trade policy and have sufficient information in order to do that. As I have made clear, both at Second Reading and subsequently during our debates in Committee, this Bill primarily concerns continuity for our existing EU free trade agreements, although noble Lords may be pleased to hear that I will not restrict my comments in this debate just to those continuity agreements.
This Bill does not and has never been intended to deal with the scrutiny processes for all our free trade agreements, including those with new partners such as Australia. In formulating our approach to scrutiny of future international trade agreements, we have, of course, rightly and properly, considered the approach of international comparators, including the United States and countries with similar Westminster-style democracies such as New Zealand and Canada. The UK Parliament will be able to conduct scrutiny in a way that is appropriate and proportionate to the UK’s constitutional context and in areas goes beyond that of New Zealand and Australia.
The making of treaties, including international trade agreements, is a function of the Executive held under the royal prerogative. At the same time, it has long been held—and I emphasise that this Government continue to hold—that Parliament should have the opportunity to scrutinise treaties effectively. The Constitutional Reform and Governance Act 2010 confirmed, after a process of consultation, the respective roles of the Government and Parliament in treaty making. The Government will continue to support and facilitate parliamentary scrutiny of treaties under CRaG, including laying the agreement before Parliament for a period of 21 sitting days for full scrutiny. Continuity agreements will—and in many cases have already been—scrutinised through the framework set out in CRaG. Additionally, noble Lords will know that we have voluntarily published parliamentary reports alongside signed continuity agreements, outlining any major changes with the underlying EU agreement. As I said earlier to the noble Lord, Lord Purvis, I can confirm that we will continue to publish these reports for remaining continuity agreements.
I will set out for noble Lords what the Government have committed to in this area, because I believe that we have moved significantly from our original position, having listened to the views shared by colleagues across both Houses. The Government have committed that, before we begin FTA negotiations, we will publish our negotiating objectives, alongside a response to the public consultation, and an initial economic assessment. In response to the point made by the noble Baroness, Lady Smith, this is the mandate that we give our negotiators and it is covered by the royal prerogative. I understand that the noble Baroness finds this old-fashioned, but that is the way our constitution works. I was pleased that my noble friend Lady Noakes spoke in confirmation of this.
This has already been undertaken for our negotiations with the US, Japan, Australia and New Zealand. In its most recent report, the EU International Agreements Sub-Committee praised the Government’s approach to pre-negotiation information sharing, stating that these publications had been helpful in initiating its scrutiny work. We feel that we have nothing to hide in this area. In addition, the Government have committed to keeping Parliament updated on the progress of negotiations. We have done this throughout current new FTA negotiations, with I and my fellow Trade Ministers having met with a large number of colleagues to update on progress and discuss trade policy issues. I have always been keen—and have held round tables and briefing sessions—whenever there have been new developments to discuss. I can absolutely confirm that throughout, we have engaged and will continue to engage, closely with the EU International Agreements Sub-Committee—the IAC—in your Lordships’ House and the International Trade Committee in the other place. I have taken steps in my department to ensure that we treat the IAC absolutely on all fours with the ITC, which clearly should be the appropriate way that we interact with your Lordships’ committee.
Sitting suspended for a Division in the House.
It must have been hard enough following my remarks without a break, so I hope that noble Lords do not find it even harder now.
Once an FTA has been negotiated, it will need to be implemented and ratified. I remind the Committee that free trade agreements cannot of themselves change domestic law. If changes to legislation are required, Parliament will have the opportunity to scrutinise and approve them in the normal way. I hope that this demonstrates that the Government are committed to Parliament being able to scrutinise future trade agreements. I will amplify these comments in a moment.
Regarding the devolved Administrations, international relations, including the negotiation of free trade agreements, are a reserved matter under the devolution settlements. The suggestion made by the noble Baroness, Lady Finlay, about giving the DAs a formal role would not therefore be appropriate, but as we heard from my noble friend Lord Younger, there are many points of contact between the DAs and the Government on these matters. The UK Government will therefore be acting on behalf of the whole of the UK in free trade agreement negotiations, and our overall principle is to ensure that all parts of the UK benefit from any deal. As a reserved matter, it would not be appropriate to give the devolved Administrations a statutory role, as opposed to an informal role, in international trade negotiations.
Of course, the UK Government recognise that modern trade deals cover an increasingly wide scope and interact with areas of devolved competence. As such, we recognise that the devolved Administrations have an interest in international trade policy and DIT works closely with them to deliver policy that reflects the interests of all parts of the UK. In recognition of the importance of this relationship, we have recently launched a new ministerial forum for trade with the devolved Administrations. This has already met to discuss our approach to FTA negotiations and will meet regularly as negotiations progress.
In line with our commitment, the Government have already published an initial economic assessment for each of the new FTAs we are currently negotiating. Once negotiations have concluded, we will publish an updated assessment based on what has been negotiated. This will be presented to Parliament alongside the final treaty text and an Explanatory Memorandum to aid parliamentarians in their scrutiny role, in addition to the CRaG procedure.
As I have set out, this Bill is not about free trade agreements with countries that the EU did not have an agreement with before 31 January 2020, but, none the less, I trust I have reassured the Committee that the Government are committed to a transparent trade policy and to engaging with Parliament.
Next, I would like to address Amendment 36, which is also in the names of the noble Lords, Lord Purvis and Lord Fox. Noble Lords will be aware that despite the previous Bill falling, we have committed to and are delivering on publishing these parliamentary reports on a voluntary basis to assist noble Lords with the scrutiny of agreements. We have provided this additional scrutiny, over and above the statutory framework set out in CRaG, in response to the genuine concerns raised by noble Lords.
While it is of course true that we have not carried forward the amendment from the previous Bill, we have not done so because it is unnecessary. We have adhered to the commitment we gave, as our record demonstrates. We have not required a legislative commitment to see the benefit of these parliamentary reports, which have been invaluable in assisting noble Lords with the scrutiny of continuity agreements. Again, I can confirm that we will continue to publish reports for all continuity agreements yet to be signed.
Turning specifically to Amendment 37, we fully intend to publish parliamentary reports alongside agreements as they are signed. I hope that noble Lords will judge us by our record and accept our commitment—including my personal commitment—in this area.
With regard to Amendment 38, in Committee in the other place, my colleague, the Minister of State for Trade Policy, made the astute comment that
“trade negotiations … have a habit of going down to the wire.”—[Official Report, Commons, Trade Bill Committee, 23/6/20; col. 199.]
The eminent businesspeople and negotiators in this House do not need to be reminded of that fact. Thus, it is possible that we may sign a continuity agreement very shortly before the transition period ends. This may make it difficult to leave a period of 10 sitting days before any SIs are brought forward if we are to avoid a cliff edge in trading relationships with the country in question. However, I assure your Lordships that we will leave as much time as possible for parliamentary scrutiny before regulations are brought forward. Of course, CRaG allows a period of 21 sitting days for agreements to be scrutinised in Parliament before they can be formally ratified, which—I hope and believe—provides an effective period of time for parliamentarians to scrutinise agreements.
Moving to Amendment 41, while the command paper was published under the previous Administration —since then, of course, we have had a general election and secured our exit from the European Union—I hope that noble Lords will recognise that this Government have continued to give Parliament further opportunities to scrutinise our trade agenda effectively. This Government remain committed to the key principles of transparency and ensuring effective scrutiny of our trade policy. That is why we have made our own commitments, which I outlined in reference to Amendment 35. Noble Lords will notice that those commitments repeat many of the commitments made in the 2019 command paper.
The noble and learned Lord, Lord Goldsmith, spoke about the role of the committee that he ably chairs: the IAC. I carefully read its report on working practice, and I must say that I found it in the main sensible and pragmatic. I commit that we want to work pragmatically with the IAC going forward so that it can do the job that Parliament has asked it to do. The noble and learned Lord asked for my views on the IAC’s report, given that I was not the responding Minister during the Lords debates on it. As he knows, I welcome his committee’s vital scrutiny work. Frankly, I also welcome the praise specifically for my department’s working practices, which the committee, in its wisdom, advised other departments to follow.
On the point made by my noble friend Lady Fairhead, the noble Earl, Lord Sandwich, and the noble Lord, Lord Stevenson, we are not just standing still on this. I reassure noble Lords that we are in active discussions with the ITC and the IAC to ensure that we can work together to ensure satisfactory progress for the scrutiny of FTAs. I hope that those discussions will lead to a pragmatic approach that both committees will welcome.
These discussions include making sure that we allow the committees to produce independent reports before FTAs are laid under CRaG. This is a very important development. It requires us to provide the FTAs to the committees in final form, so that they have time to produce a report before the agreement is laid. This is vital because these agreements are complex and not easily comprehensible. It will be very useful for the committees to go through them beforehand and give your Lordships’ House their view on and appraisal of the agreement. We will work constructively with the ITC and the IAC to allow them time to produce an independent report on the final agreement, aiding parliamentarians’ and the public’s understanding of its potential implications. I hope that my noble friend Lady McIntosh welcomes this.
This goes beyond the bare bones of CRaG but, having listened carefully to the noble Lord, Lord Purvis, I am not sure whether he thinks going beyond the bare bones of CRaG is good or bad. I look forward to him clarifying that in his final remarks. I assure my noble friend Lady Fairhead that the powers in the Bill relate to continuity agreements and that new FTAs are likely to require additional legislation to be implemented.
On Amendment 47, in the names of the noble Lord, Lord Stevenson of Balmacara, and my noble friend Lady McIntosh of Pickering, as I have already said, parliamentary reports have been voluntarily laid alongside every signed continuity agreement, outlining any significant differences between the signed agreement and the underlying EU agreement, as well as detailed information on trade flows and key imports and exports with trading partners. The Government are eager for your Lordships to make your voices heard as continuity agreements are finalised, signed and laid before this House for scrutiny in a proportionate and productive way.
Ultimately, our continuity agreements seek to replicate the effects of our existing trade agreements in which we formerly participated as an EU member state. The 21 signed continuity agreements demonstrate that we are not going beyond our mandate of continuity. Therefore we believe this requirement to report on agreements retrospectively is unnecessary.
I thank the noble Lord, Lord Stevenson, for the next amendment, Amendment 53. I take this opportunity to reassure the noble Lord that the Government will seek to provide robust and credible evidence to support our assessment of the impact of free trade agreements. In the recently published scoping assessments for the UK-US, UK-Japan, UK-Australia and UK-New Zealand FTAs the Government committed to publishing a monitoring and evaluation framework prior to implementation of those agreements. We also committed to publishing evaluations of these agreements at the appropriate time.
The right reverend Prelate the Bishop of Blackburn endorsed the importance of high standards in agreements. The Government completely agree on this. Listening to the right reverend Prelate, he has taken to the ways of your Lordships’ House so smoothly and effectively that I find it hard to believe that his maiden speech was as recently as the Second Reading of the Bill. I congratulate him on the way that he has found his feet in our House so effectively.
Amendment 57 is also from the noble Lord, Lord Stevenson of Balmacara. The Government are committed to the principles of transparency and scrutiny of our free trade agreement negotiations, but that does not mean we can accept a role for Parliament that infringes on the Government’s prerogative power to enter into trade negotiations with third countries. That is a red line for us.
The Government have published negotiating objectives for each of the FTA negotiations we have entered into to date. In addition, for each negotiation we have published an assessment of the strategic case for securing an FTA with that country and an initial economic impact assessment on a potential deal. I believe these documents have provided parliamentarians and the public with a clear understanding of the Government’s reasoning and aims for each of the FTA negotiations.
These positions have been informed by a comprehensive programme of engagement and consultation with a broad range of stakeholders. Furthermore, our strategic and sectoral trade advisory groups have provided expert advice to help shape our trade policy positions.
The Constitution Committee of your Lordships’ House is supportive of our position. Its 2019 report on the scrutiny of treaties stated that providing Parliament with votes on mandates
“would impinge inappropriately on the Government’s prerogative power and limit the Government’s flexibility in the negotiations.”
I think the committee got that absolutely right.
Comparing systems in which legislatures have a role in mandate setting, such as in the US or the EU, ignores the fundamental differences in our constitutional make-up. In the example of the EU, I strongly argue that its scrutiny arrangements reflect the specific and unique structures of the EU and that direct comparison with the UK is unhelpful. I do not believe that the arrangements for parliamentary involvement in EU treaties can or should be the model for parliamentary involvement in UK treaties. The previous process reflected our position as one of 28 EU member states in which the EU Commission negotiated on our behalf. We now need a process that is right for the UK as an independent trading nation and its constitutional arrangements outside the EU. It would be strange if, having left the EU, we thought it necessary to emulate its constitutional arrangements if they are not appropriate for our country. The enhanced scrutiny practices put forward by this Government do this and go well beyond the statutory framework for the scrutiny of treaties under the CRaG Act.
I now turn to the amendment proposed by my noble friend Lord Lansley and the noble Baroness, Lady Jones of Moulsecoomb, which seeks to amend Section 21 of the Constitutional Reform and Governance Act to ensure that where Parliament requests a debate on a trade agreement, Ministers are legally obliged to make it happen. The Government believe that the existing scrutiny measures for continuity trade agreements are proportionate and fair. In light of the debate on the 2017-19 Trade Bill, we added the use of the draft affirmative procedure for regulations made, which was welcomed by DPRRC in its recent report on the Bill. Your Lordships should be assured that all changes to UK legislation required from these agreements will be scrutinised and passed by Parliament in the normal way.
I have listened to noble Lords’ concerns about the role this House and the other place have in relation to trade agreements, but I repeat that the Government believe that our existing CRaG processes already provide an effective and robust framework for parliamentary scrutiny, particularly those that have already undergone comprehensive scrutiny at EU level.
I recognise the concerns which noble Lords have outlined relating to new FTAs with trading partners, such as the USA or Australia, although they are not included in the scope of the Bill. I have already outlined how we have gone beyond the statutory requirements of CRaG. Our continuity agreements already undergo an extensive and well-designed parliamentary scrutiny process. The amendment proposed by my noble friend is well intentioned, and I thank him for the productive discussions we have had, but we believe that the current framework for the scrutiny of continuity agreements under CRaG is both fair and appropriate.
Finally, I shall now speak to Amendment 98 in the name of the noble Lord, Lord Stevenson of Balmacara, and my noble friend Lady McIntosh of Pickering. The amendment seeks to stop most of the provisions of the Trade Bill coming into force unless the UK reaches an FTA with the EU, or the other place explicitly approves leaving without a deal.
The Government have been clear that we are looking to negotiate a trade agreement with the EU like those the EU has previously struck with other friendly countries such as Canada, and those conversations are, as noble Lords will be well aware, ongoing. However, the Prime Minister has made it clear that we will not sacrifice the economic and political independence of the UK and will leave the transition period with an Australia-style trading relationship with the EU if necessary. The Government were elected with a mandate to negotiate with the EU to these ends, and Parliament passed legislation which clearly outlined that there would be no extension to the transition period. It is not for this House to attempt to frustrate the clear instruction this Government have received from the electorate.
Any delay in our ability to implement UK continuity agreements would cause disruption to UK businesses, consumers and international trading partners. Twenty-one agreements have so far been signed and would be unable to come into force, harming UK consumers and businesses. Furthermore, accession to the Agreement on Government Procurement, commonly known as the GPA, will maintain UK businesses’ access to public procurement opportunities, and that too would fail if the amendment were accepted. The Bill also allows the Government to collect data on exporting which will provide the Government with an accurate view of exporting activity across the UK and assist in providing targeted support to businesses in accessing export opportunities.
Before I conclude, my noble friend Lord Lansley asked various questions about the new Japan free trade agreement. I ask him to wait until the Japan FTA and accompanying reports are laid before the House and the IAC has made its report on it. If he has any outstanding questions after that, I will of course be happy to meet him to discuss them.
The noble Lord, Lord Purvis, compared the UK and Japanese scrutiny systems, stating that we fall short because we do not give Parliament a yes/no vote on the enhanced agreement. With all due respect, I cannot leave those comments unanswered. The noble Lord failed to mention that Japan did not undertake a public consultation or call for input before starting negotiations—we did—and he failed to mention that Japan did not undertake engagement with its Select Committee equivalents during negotiations. We did, and as I previously said, we will continue to do so. In fact, as we heard from the noble and learned Lord, Lord Goldsmith, we will shortly be sharing this information with the IAC and the ITC so that they can produce an independent report. I am meeting the IAC privately this Monday to take its questions.
This has been a long and rigorous debate, and I hope it has been helpful in clarifying the Government’s position. As I said at the beginning, I believe that if one analyses the Government’s position there is less difference between the Government and Parliament than some noble Lords have said. I hope that I have sufficiently addressed your Lordships’ concerns and therefore urge the noble Lord, Lord Purvis, to withdraw his amendment.
My Lords, I have received three requests to speak after the Minister, from the noble Lord, Lord Lansley, the noble Baroness, Lady Finlay, and the noble Lord, Lord Grantchester. I will take them in order.
My Lords, I am very grateful to the Minister but I would like to add one point that arises from what my noble friend Lady Noakes said. It is important that we recognise precisely how the CRaG process works. The Government do not require a positive Motion from the House of Commons to ratify a treaty. However, if the House of Commons has voted that a treaty not be ratified, the Government cannot then proceed to ratify it. The Government can ask the question again as many times as they like, but they cannot ratify it if the Commons has said that they should not. That is why it is such an important issue that, if the House of Commons has received a report from a relevant committee saying that it should consider such a treaty, in my view that debate has to take place before ratification can happen. Legally, however, the Government can use their power to control the timetable and avoid a debate, the period of 21 days can expire, and the Government can ratify. That is the legal position. If the Government have a requirement of urgency, under Section 22 of the CRaG the Government can lay a Statement saying, “This treaty must be ratified”, but that must be apparent right at the outset and not become something to which the Government resort because they wish to avoid a critical Motion in the House of Commons.
We will have to come back to this on Report—we will have to—because there is a risk. It is a small risk, and not something that the Government have been guilty of, but as Angus MacNeil, the Chair of the International Trade Committee in the other place, said a couple of years ago, one has to look at this legislation on the basis, perhaps, that—he said it a couple of years ago—Jeremy Corbyn were Prime Minister. Would we want him to have this power? Therefore, let us just make sure that we think about this, and I invite the Minister also to think about it in the intervening period.
I thank my noble friend and I will certainly think about it. The comments he makes are perfectly rational. It is not for me to impinge on the prerogative of the Leader of the House and the usual channels to debate on whether time should be found. Of course, in a rational world, one would expect time to be found to debate a matter as important as that. I will consider his comments carefully.
My Lords, I realise that I should have declared at the outset that I am on the committee advising the Welsh Government, at their request, as we proceed through Brexit. I asked to come in after the Minister to correct the assertion made by the noble Baroness, Lady Noakes. I want to point out that supporting this group—and particularly Amendment 57—is not a last-ditch anti-Brexit move: it is because we have devolved competencies that are deeply affected. Sadly, the Government have not seemed to be adequately discussing with, consulting or bringing into confidence the Welsh Government. Wales voted for Brexit and is unionist. It feels as if the Government have been short-sighted to see the Government in Wales as somehow a cloaked enemy who cannot be trusted to keep confidentiality. The Welsh Government know only too well that the future of Wales depends on these trade agreements and that compromises will need to be made for the future welfare overall, and they respect the vote cast by the people of Wales.
The noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Fairhead, highlighted many strong points within the amendments, and we must find a way forward. There is a need to bring the devolved Administrations into the inner circle in negotiating if the good of the whole UK is to be achieved. I ask the Minister to please consider that.
I have one more small point. The Minister’s reply to the question of CRaG and how it applies to continuity agreements did not really reflect on the remarks of the noble Lord, Lord Lansley, regarding TRQs, as they go wider than just the Japan deal. The status quo underlying EU agreements and continuity agreements cannot really ignore TRQs and any outcomes. Can the Minister respond more fully on TRQs and their differences and how they are reported on under the CRaG process?
My Lords, I thank all noble colleagues for taking part in this debate and the Minister for giving a comprehensive response. If we could legislate to guarantee a rational world, there would be unanimous support for it in the Committee. However, we will have to reflect on where we have got to whereas the noble Lord, Lord Lansley, and others such as myself who welcome what the Government are doing voluntarily, think that it should be the basis of a future statutory framework. I do not impugn the integrity of the Minister or his word, as I did not with the noble Baroness, Lady Fairhead, who spoke so well in this debate. It is very nice to see her making a speech. I am glad that the noble Lord, Lord Stevenson, apologised if he had caused her tears because that means I do not have to—I thought it was me. I hope the fact that I have been citing her quite a lot does not give her more discomfort on trade issues.
While we do not impugn the integrity of Ministers, we want a sustainable mechanism. The noble Lord, Lord Lansley, referenced the attempts in the House of Commons and he is absolutely right that my Amendment 35 started with Jonathan Djanogly MP. I had very good discussions with him but the reason I did not lead on that is that I did not want people to think it was simply a cheeky initiative. It was an initiative by six Conservative MPs in the House of Commons but I think it has genuine cross-party feeling behind it.
I am glad that the Minister gave a reassurance about the report that will come on the Ukrainian deal and on all others, going forward. I am still perplexed as to why the Minister is comfortable giving the assurance that all subsequent agreements will have a report, yet the Government do not want to reinstate an amendment which would guarantee that. We will just have to reflect on that.
The noble Lord, Lord Lansley, and the noble Baroness, Lady McIntosh, made an important point on timing and certainty and I was grateful to her for giving the example. The noble Baroness, Lady Fairhead, will remember the debate that I activated through the CRaG process because the Government had chosen not to bring a debate to the House of Lords. I activated one on the Faroe Islands and the Minister admitted, very graciously, that there could be improvements on consultation because, on a fisheries deal with the Faroe Islands, there had been no consultation with Scottish Ministers. That was quite breath-taking but the fact is that it happened and was corrected, so we were able to move on. It helps that there have been examples of this.
The next point was made by the noble Baroness, Lady Noakes, and I want to address it. My noble friend Lady Smith related the fact that the noble Baroness, Lady Noakes, think some of us are just animals with insatiable appetites to get more and more powers. I am just a wee timorous beastie here; I am just trying to do my best. I am not threatening or insatiable, or anything, but I am glad that she mentioned the Constitution Committee report. I took part in that debate and read the committee’s conclusions. The noble Baroness is right that paragraph 76 of the report said that the committee did not argue for Parliament to have a resolution on the negotiating objectives on any treaties. That is one point. However, she did not state the rest of this paragraph—I hope, Minister, that this is accurate research—but I can quote it. It said that
“for significant or controversial treaties, the Government will want to ensure that it has the support of Parliament at the outset of negotiations in order to secure ratification to the final text of the agreement.”
Now, we are in the realms of how that is done: either through informed consultation and debate, or through having a resolution on objectives in order for the Government to consider their mandate to then be stronger because it has parliamentary backing. That is the area that I am in.
That report was on all treaties. Jack Straw was referring to some of the sensitivities with Spain over the treaty of Utrecht. We consider a huge range of treaties, from relatively minor ones through to nuclear non-proliferation. But, as indicated by the noble Baroness, Lady Jones, and others, there is consensus that deep and comprehensive trade agreements go far beyond simple tariffs and quotas. They will impinge on consequential domestic legislation, and therefore this is justified.
That is why I am so glad that the noble Baroness, Lady Finlay of Llandaff, came back to the Minister. It is why Canada, for example—which the Minister referred to—has a federal-provincial committee on trade and a federal-provincial committee designated to agriculture, for example. The provinces are involved. They have a formal role and there have been federal state clauses in treaties that Canada argued for. Canada has a dualist system, as we do. Australia has a treaties council with the Prime Minister, the chief Ministers and the state premiers, if it wishes to activate it. The Minister sought to respond to my comments on Japan. I am glad he did, but he did not—and I am happy to be corrected—deny that Japan will have a vote in both houses of the Diet on the agreement to authorise the formal signatures.
Ultimately, the Minister asked me whether I am happy that the Government have gone above and beyond CRaG. Yes, I am delighted. I want it not to be, as the noble Lord, Lord Lansley, said, at the discretion of Ministers or for us to allow Ministers to decide whether it is appropriate. Going beyond CRaG once means that it is harder not to do it, and I am pleased about that, but for it to pass the Jeremy Corbyn test, or even the Jeremy Purvis test, I hope to have some kind of discussion on a framework.
Finally, the noble Lord, Lord Stevenson of Balmacara, referred to the fact that my amendment went through the House of Commons. There was a vote on it. The Government also chose not to progress the amendment in his name. We will reflect on this before Report, but I warn the Minister that there has been sufficient support for putting mechanisms that go beyond CRaG on the statute book to warrant this coming back on Report. In the meantime, I beg leave to withdraw Amendment 35.
Amendment 35 withdrawn.
Amendments 36 to 38 not moved.
We now come to the group beginning with Amendment 39. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
39: After Clause 2, insert the following new Clause—
“Conditions for trade deals: Sustainable Development Goals
(1) Regulations under section 2(1) may make provision for the purpose of implementing an international trade agreement only if the provisions of that international trade agreement do not conflict with, and are consistent with, the provisions of the Sustainable Development Goals adopted by the United Nations General Assembly on 25 September 2015.(2) Any future international trade agreement not implemented under section 2 shall only be eligible for signature or ratification by the United Kingdom if the provisions of that international trade agreement do not conflict with, and are consistent with, the provisions of the Sustainable Development Goals adopted by the United Nations General Assembly on 25 September 2015.(3) Within 12 months of making regulations under section 2(1) or ratifying a future trade agreement, a Minister of the Crown must lay before Parliament a report assessing how those regulations or trade agreement is making a positive impact towards the implementation of the Sustainable Development Goals adopted by the United Nations General Assembly on 25 September 2015.”Member’s explanatory statement
The new Clause ensures that trade agreements cannot be implemented, signed or ratified unless they are consistent with the provisions of the Sustainable Development Goals.
My Lords, I apologise to the Committee, which is no doubt fed up of hearing my voice. I declare an interest for this group, as I co-chair the All-Party Parliamentary Group on Trade out of Poverty, I am a member of the APPG on the SDGs and I was co-chair, with the Nigerian Trade Minister, of an inquiry into trade and development in the Commonwealth. I thank my noble friend Lady Sheehan, the noble Lord, Lord McConnell, and the noble Baroness, Lady Bennett of Manor Castle, for supporting this important amendment.
The SDGs are a major advance in seeking consensus on achieving major advances in human development. When I took the 0.7% Act through the House of Lords, I did so knowing that we would be putting the platform for our overseas development assistance in statute, and that we would be a world leader, both morally and practically, in implementing the SDGs. Many are off track and hard work is needed to see them implemented, especially in the context of Covid-19.
The UK has a major role to play, and now that we have an independent trade policy, we need to shape it accordingly. My amendment is consistent with the cross -party, overwhelming support we gave to the principle of meeting our international obligations on aid. I hope there is also consensus that our trade policy should have a fundamental role in meeting SDGs around the world for us and our trading partners.
The Government are seeking continuity in law for trading with the FTAs, and we are seeking continuity in law for trade and development as part of them and for any new agreements. Why do I say continuity? It is because:
“EU law requires all relevant EU policies, including trade policy, to promote sustainable development. EU trade policy aims to ensure that economic development goes hand in hand with: social justice; respect for human rights; high labour standards, and; high environmental standards.
The EU strives to ensure trade policy helps promote sustainable development through: EU trade agreements; special incentives for developing countries, and; trade and development policy.”
I am delighted that, in the continuity agreements, we are also carrying on that approach.
The trade agreements with Central America, Mercosur and countries such as Canada, Japan, Mexico, Vietnam and Ukraine, which we have discussed, all have trade and sustainable development chapters in them. I hope that this will also be the Government’s position in carrying over these agreements and for the remainder of agreements. That should be a straightforward commitment, and I would welcome it if that were the case.
Condition (3) of Amendment 39 would require a report assessing how trade agreements will support the SDGs. Every year so far in our trading relationships through the EU, there has been a report from the Commission to the European Parliament and the Council on the implementation of free trade agreements, including how they are meeting the sustainable development goals and advancing the trade and sustainable development objectives. We want continuity, and we want the UK voluntary national review process under the SDGs to take into consideration our trade and development policies. I hope that this is not a great burden for the Government. I hope that they will be able to commit to stating that that will be an entrenched part of our reports. For those who think this may be a bureaucratic burden, I highlight that the Command Paper on trade referred to by the noble Baroness, Lady Fairhead, in the previous group, committed the Government to an annual report on trade, either in our VNR process for the SDGs or in a UK annual report on trade. Looking at how we are supporting the SDGs is important.
Amendment 97 is directed towards the preferential support and assistance we should give to least developed countries and lower middle-income countries, as defined by the OECD DAC, by virtue of their special trading relationship with us through the generalised scheme of preferences—we now have our independent scheme of preferences—and the Everything But Arms principle. We had been expecting the documentary requirements for our new GSP scheme for developing countries months ago, in order for least developed countries to prepare for January. What is the status of this in terms of their being able to prepare?
I was grateful for a letter from the noble Lord, Lord Grimstone, of 5 October in response to a question I asked about the east African states and Kenya; it was very helpful that he replied so promptly. There was a concerning element to that letter, however, where he volunteered the fact that ODA programmes in place to support countries in their readiness for trade agreements will be cut. The Minister said that the Government have, in response to the shrinking of our economy and the reduction in our 0.7% commitment,
“identified a package of reductions in the Government’s planned ODA spend so that we can proceed prudently.”
This will mean that the support for least developed countries in implementing the trade agreements that we have asked them to carry out will be reduced.
I want to say something to the Minister very clearly. This is not discretionary on our behalf; we are obliged under treaties to support them. For example, Article 12.3 of the SACU agreement with the Southern African Customs Union and Mozambique states:
“The UK shall support implementation of this Agreement through appropriate and effective UK funding mechanisms in consultation with the SACU Member States and Mozambique to contribute to implementing the programmes and projects to be developed under the areas of cooperation to be mutually identified.”
Those areas have been mutually identified. It is not at the Government’s discretion to cut them unilaterally—we are treaty bound. I would be grateful if the Minister could confirm that we will adhere to all our treaty obligations with the least developed countries, which we have asked them to sign and which we are a signatory to. If these are not in place, how can we honour our commitments to the least developed countries in the world in raising the level of capacity that we have said we will help fund them to put into place?
We can already see some of the reductions, for example, in TradeMark East Africa, an organisation which facilitates higher standards and less bureaucracy, reducing border time processing and trade—all of the areas which the Minister is passionate about, seeing trade agreements as unable to deliver by themselves unless businesses and enterprises can take advantage of them. Our commitment to the least developed around the world should be a priority for our agreements, which is why the amendments in this group are important and I am grateful for the cross-party support for them. I hope the Minister will look on them favourably when he responds, and I beg to move.
We are trying to contact the noble Lord, Lord McConnell, but we have not been able to reach him and are checking to see whether that is due to technical failure. I therefore call the noble Baroness, Lady Sheehan.
My Lords, it is a pleasure to follow my noble friend Lord Purvis of Tweed, whose grasp of the particular issues that developing countries face is well grounded through his leading role in the All-Party Group on Trade Out of Poverty, which he mentioned at the start, and which complements his demonstrated knowledge of trade matters in general. I thought I would be following the noble Lord, Lord McConnell of Glenscorrodale, so I will leave out a bit of my speech.
Amendment 39, to which I have added my name, seeks to ensure that trade agreements take full heed of the UN SDGs, or sustainable development goals, which the UK in no small measure helped to craft, along with an impact assessment report back to Parliament on progress towards meeting those SDGs. Embedding the SDGs in our trading ethos, which Amendment 39 seeks to do, will go beyond mere words and take ownership of a much-lauded initiative that we were instrumental in delivering, defining our determination to establish Britain as a force for good in the world, which is after all the stated aim of Dominic Raab, the Secretary of State of the newly created FCDO. I am concerned to hear about the cutting of the ODA specifically to implement trade agreements with developing countries. That is very disappointing, and I look forward to hearing the Minister’s response on that.
If we were to embed the SDGs into the new trade agreements, we would be keeping in step with the WTO, which has embraced the ambition of the SDGs and recognises its own central role in delivering them. The WTO’s publication Mainstreaming Trade to Attain the Sustainable Development Goals shows its commitment to delivering and implementing pro-growth and pro-development trade reforms, and which are crucial to prosperity for us here in the UK as well as for the rest of the world. Without a fair trading scheme, we will not realise the ambitions to protect our planet as we make good social injustices, and that is the purpose behind Amendment 97 in the name of my noble friend Lord Purvis of Tweed, with the welcome support of the noble Baroness, Lady Bennett of Manor Castle.
Least developed countries and low and middle-income countries have a few privileges when it comes to trade with more developed countries without which they would never get off the starting block in the cut-throat world of international trade. I urge the Minister to do all he can to expedite the rollover agreements with developing countries we have through the EU which to date have not been the subject of continuity agreements. The sooner that happens, the better. I think my noble friend Lord Purvis pointed to the east African states and Kenya where that has yet to take place.
The existing concessions for market access for developing countries, such as Everything But Arms and preference schemes, must continue and they need to be guaranteed as we carve out new deals post Brexit. I say that advisedly. The Minister repeatedly insists that this Bill has a limited remit to apply only to continuity agreements, but that is not what is written in the Bill. The Long Title starts:
“A BILL TO Make provision about the implementation of international trade agreements”.
There is no mention of continuity agreements. It is therefore little wonder that so many amendments have been tabled to secure in the Bill safeguards for existing standards that our citizens hold dear in so many spheres of their lives. Britain’s reputation for thorough, open and regular scrutiny, something that the noble Baroness, Lady Fairhead, remarked upon repeatedly, is in no small measure the backbone of our good standing on the international stage and should not be given up.
Amendment 97 would impose a duty on the Government of the day to lay a report before Parliament on a regular basis assessing the economic and developmental impact of each free trade deal between Britain and least developed and lower middle income countries. This is a powerful requirement, the mere knowledge of which will act as a positive incentive to the Government of the day to keep in place existing measures to deliver the “gold standard”, as the Fairtrade Foundation puts it, in the trade for development policy. That is what we are looking for: a gold standard in trade for development policy. It will go a long way toward securing—I again quote the Fairtrade Foundation,
“an overarching trade strategy that works in support of the SDGs, business and human rights and climate change commitments.”
I shall end my contribution with a few words on fossil fuel subsidies and their abundant use in our trading relationships with developing countries. If you believe, as I do, that unless we stop climate change, we will destroy life as we know it on our plant, we must stop burning fossil fuels. It makes little sense to me that we, through UK Export Finance, continue to subsidise investment in new fossil fuel infrastructure in developing countries as if existing infrastructure will not take us over the two degrees of warming that spells disaster. The argument is often put forward that not to help former colonies to harness energy from oil or gas somehow harks back to colonial times when Britain dictated economics abroad. That is pure bunkum. It is far more reminiscent of the colonial era to lock former colonies into soon-to-be defunct stranded assets and pocket the profits at the same time as we in the west equip ourselves with modern, clean and cheaper energy infrastructure. My plea to the Government is that they stop subsiding fossil fuel infrastructure here and abroad and transfer those subsidies to clean renewables, such as solar, wind and hydro, which present plenty of opportunities to do business in developing countries.
My Lords, I will speak first to Amendment 97, in the names of the noble Lord, Lord Purvis, and the noble Baroness, Lady Sheehan, to which I have attached my name. It is a pleasure to follow both the noble Lords. I particularly associate myself with the comments on ending fossil fuel subsidies made by the noble Baroness, Lady Sheehan.
Since they have already amply explained the amendment, I will simply note that we are coming out of an arrangement as an EU member where there was—as I was frequently forced to repeat during the Brexit debate—the generalised scheme of preferences, which meant that there were no tariffs and no quotas on goods from the least developed countries, except on arms and ammunition. Some of my reservations about the role of trade have already been expressed and will be extended in my comments on Amendment 39. We often hear words about development aims from the noble Lord, Lord Ahmad of Wimbledon, in your Lordships’ House. We can only hope that we will not be damaging the least developed countries with our trade policies. A regular report would be a way of checking on that. This is a modest amendment with which I hope the Government will agree. They could use it to display the progress on one of their avowed policy aims.
I also support Amendment 39, in the names of the noble Lord, Lord Purvis of Tweed, the noble Baroness, Lady Sheehan, and the noble Lord, McConnell of Glenscorrodale. As I am a regular proponent of the sustainable development goals as a way of bringing systems thinking and understanding of planetary limits into our policies and plans, this will probably come as no surprise to this Committee. I confess—and I acknowledge in advance—that the other proponents may not thank me for my support. I go back to the words of the amendment:
“Any future international trade agreement ... shall only be eligible for signature or ratification ... if the provisions ... do not conflict with, and are consistent with, the provisions of the Sustainable Development Goals”.
I remind the Committee that the United Kingdom is not on track to meet one of those goals—to which we are of course a signatory. Business as usual will not do it, for us or for the rest of the world. Globalisation and trade have done great damage to the social, environmental and economic fabric of our world.
I have already referred to the trade and investment requirements of the Zero Carbon report by the Green House think tank. Any agreement meeting the sustainable goals or any such trade would require a total transformation of our current system. If passed, the amendment would do nothing less than ensure a peaceful economic revolution—one that could greatly boost the national steel industry and the growing of fruit and vegetables. It would utterly transform our economy, very much in line with Green Party policy for one-planet living. But that is—perhaps I do the signatories to the amendment a disservice—something more than they intended.
There is no justification for the fact that salmon accounts for 74% of our fish-trade carbon footprint. In 2019, we exported 125,000 tonnes of salmon—48,000 tonnes of it by air—over half of which was flown to the US and China. We also imported almost the same amount—101,000 tonnes. The air-freighted salmon we exported was 64 times more carbon-intensive than the almost identical, if cheaper, salmon that we imported. No trade deal aligning with the sustainable development goals could allow that.
In 2019, just 16% of the fruit and 54% of the vegetables we consumed in the UK were grown here. We have a climate which is ideal for growing apples and pears yet, in 2019, we imported 438,000 tonnes more than we exported. The greatest carbon impact came from those imported from furthest away—South Africa and New Zealand.
Then there is the massive water footprint of the flowers, fruit and vegetables we bring from around the world, and the human misery—literally blood, sweat and tears—in the seams of fast fashion. A trade deal aligned with the sustainable development goals could not allow this to continue, for of course it would be about delivering the sustainable development goals for other nations, as well as for ourselves.
Two-thirds of the 2 million tonnes of higher-grade steel used in UK car manufacturing is imported, yet we currently export four-fifths of our scrap steel, which could be an important resource for making new steel through renewables-driven arc furnaces. This is a sustainable development goals approach that would reshape and largely end both directions of trade.
Trade policy and trade deals currently lock in harms, encourage and support the production of dirty products and fill our shores with rubbish. A lot of it is utterly pointless. We export 1.25 million tonnes of ice cream every year and import 3 million tonnes. Those figures have both doubled in the past decade. Let us think of the waste and pointlessness of such exchange and acknowledge that in a sustainable world, one meeting people’s needs and not trashing the planet—a world achieving the balance of economic, social and environmental goals that are the sustainable development goals—the trade landscape would look very different. I commend the amendment to the Committee and urge everyone to back it.
My Lords, I am glad to see this important clause being proposed as an addition to the Bill. I am also glad to see that Amendment 97 is before us. Sustainable development requires a global response and the commitment of all those who have signed up to the development goals. Either we take the development goals seriously or we do not. It is no good joining the world in saying that we are determined to establish these goals and work towards them and then, by something we do in the sphere of trade, undermining the very principles on which they are based. If the Government are serious in their commitment, as given to the international community at the UN, this clause should be totally acceptable. I really cannot see any reason why it would not be.
Amendment 97 is very important. Having spent much of my life working on the issues of the third world, it can be very sad to see how trade arrangements can undermine years of effort towards development and progress in some of the poorest parts of the world. We know that the world is not a level playing field. I have often heard it said by different Governments that one must ensure that developing countries have a level playing field, but it is not quite as simple as that because many of them are not fit to play on that level playing field. There has to be a situation in which they can be brought to be active players on it.
This is rather like what I was saying on the proposed new clause: either we are serious in our commitment or we are not. We have now had set up by the Government this great new department, which brings so many aspects of our international relations together, including overseas development and what used to be the responsibility of a special ministry. We are constantly assured, and reassured, that things are going to be better on the front of commitment to the third world than before because all these different elements are working together.
This is a test of how serious we are and how far those new arrangements are really working for a better lot for the third world. Again, as I said on the new clause, this amendment should be totally acceptable to the Government if they are serious about their commitment to the goals that they have undertaken. The Government tell us with great passion that, in our efforts to determine our post-EU role, we are going to be positive, constructive and key players in the international community. Well, if we want to be that, we must not just pass airy-fairy resolutions and make airy-fairy statements. We actually have to deliver in the nuts and bolts of the world the policies that are necessary—and nothing is more important in the nuts and bolts than the trade arrangements.
My Lords, it is always a pleasure to follow the noble Lord, Lord Judd, in debate, because he brings to every debate a lifetime’s experience in parliaments and in international aid and development after a very successful career as an MP in a neighbouring constituency to my own—although it was some years earlier, I have to say. I must also comment on my noble friend Lord Purvis of Tweed’s tour de force. His research is so assiduous and he brings it to debates in such a manner that I cannot but sympathise with Ministers who must quail before him, knowing that his facts and figures are probably going to match anything provided by the special assistants that Ministers have available to them.
My noble friend Lord Purvis established his reputation very early in his career in the House of Lords, and it follows very closely the path of the noble Lord, Lord McConnell of Glenscorrodale. It is a great shame that the noble Lord, Lord McConnell, could not be with us this evening, because he has been a major force in developing the assessment, scrutiny and implementation of the SDGs, following on from his sterling work on the MDGs. He has been great in organising us in all-party groups to go to the UN and discuss the issues which, of course, will be major issues for us in the years ahead.
The MDGs and SDGs are linked very closely with international high-level agreements on achieving aid effectiveness and developing indicators to monitor that. I have had the good fortune over several years to be able to represent UK parliamentarians at a number of these high-level forums hosted by the UN in the developed and the developing world. I want to speak in support of Amendments 39 and 97 and I shall certainly support them with my colleagues.
Amendment 39 ensures that trade agreements cannot be implemented, signed or ratified unless they are consistent with the provisions of the SDGs. Amendment 97 requires a Minister of the Crown to report annually on the impact of trade agreements to which the UK is party on the world’s least developed countries. The 2030 agenda for the SDGs, adopted by all UN member states—we should remember that—in 2015, provided a shared blueprint for peace and prosperity for people and the planet, now and into the future. At its heart, as many of us will know, are the 17 SDGs which are an urgent call for action for all countries—developed and developing—in a global partnership. As some noble Lords brought to our attention today, somehow the rate of achievement has not been up to the levels that we would have hoped, and it is very distressing to hear that the UK has yet to achieve one of those 17 goals.
The SDGs recognise that ending poverty and other deprivations must go hand in hand with strategies that improve health and education, reduce inequality and spur economic growth, all while tackling climate change and working to preserve our oceans and forests. The past few years have demonstrated how clearly saving the world as we know it has become a critical issue.
The division for sustainable development goals in the United Nations Department of Economic and Social Affairs provides support and capacity-building for the SDGs and related issues, including water, energy, urbanisation, transport, science and technology. It plays a key role in the evaluation of the implementation of the 2030 agenda and on advocacy and outreach activities related to the SDGs. To make the 2030 agenda a reality, broad ownership of the SDGs must translate into a strong commitment from all stakeholders to implement the global goals. The UN division for sustainable development goals aims to help facilitate this engagement.
Finally, these amendments recognise that all UN member states have committed to the 2030 agenda for sustainable development. It follows that all trade agreements entered into should recognise that commitment and demonstrably keep to it. The implementation of these agreements should be conditional on that fact.
My Lords, first, I apologise as for various reasons this is the first time I have been able to speak on the Bill or this series of amendments. I speak now strongly to support the two amendments before us. I am grateful for all the powerful reasons that have been put forward beforehand, particularly by the proposer, the noble Lord, Lord Purvis.
Briefly, there are three reasons why I support both these amendments. The first is that, in policy matters, it is always important to think holistically, and the Bill gives us an opportunity to do so on one of the most crucial areas of human endeavour, which is trading. The danger of not thinking holistically is that one aspect of policy may be prioritised above all others, causing an imbalance and consequent diminution of other worthwhile goals. To maximise trade deals with other countries, at all costs, would seriously harm other goods that we greatly cherish. The Bill therefore has many amendments to ensure, quite rightly, that issues of the environment, human rights, labour relations and so on are properly protected and safeguarded.
Secondly, as part of our holistic thinking, it is right to consider the effect of trade deals on the UN sustainable development goals, to which, as we know, the UK is committed and to which we are fully committed as a member of the European Union. We have promised that. As other noble Lords have reminded us, there will be continuity with those commitments. We hardly need reminding that the need is still desperate. While good progress has been made on some goals, for example on primary education, others, such as reduction of extreme poverty, will go in the other direction by 2030 unless present policies change. One in 10 of the world’s population still lives on less than $1.25 a day. Malnourishment, leading to millions of deaths, especially among children, is stark: 3.1 million children a year still die of malnutrition.
Thirdly, despite recent reactions against globalisation, it is simply a fact of life. We are bound up with one another, economically and socially. Trade deals in one area can have effects worldwide, so we have to watch that the desperate search for trade deals, now that we have left the EU, does not damage the developing world, especially the poorest countries. We need safeguards in law to ensure this. As the apostle of the free market famously proffered:
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
These amendments give Parliament a watching brief that the new trade deals do not result, however inadvertently, in a conspiracy against the most vulnerable people on earth.
My Lords, I am pleased to speak in support of Amendments 39 and 97 in the names of my noble friend Lord Purvis of Tweed and others. Clearly, any trade deals that we agree must be in keeping with our international commitment to the sustainable development goals. We keep our agreements, do we not?
The MDGs agreed in 2000 pledged to halve extreme poverty by 2015. We know that economic development and trade played a major part in that being achieved. The SDGs were put in place in 2015, building on the previous period, and pledged to eliminate extreme poverty by 2030, at the same time leaving no one behind—so you were not dealing with averages. As my noble friend Lord Chidgey has just pointed out, the SDGs recognise that ending poverty must go along with human development through improving health and education, reducing inequality and increasing economic participation, while tackling climate change.
My noble friend Lady Sheehan pointed out that we in the UK led on this. Indeed, Andrew Mitchell, as Secretary of State, worked very hard to ensure that Prime Minister David Cameron led on this internationally. Much of the framing of the SDGs was carried out by DfID, in particular by one of its directors. I had the privilege to be a DfID Minister in the coalition during this period, and was the Minister in the Lords when my noble friend Lord Purvis took through the 0.7% Bill as the last piece of legislation by the coalition.
There have been long years of engagement by the EU on trade agreements with developing countries. There was an important shift in the realisation of how the EU, as a major economic power and the biggest aid giver in the world, could either damage the poorest around the world or assist them. Major engagement now goes into seeking to benefit developing countries and if we are to have continuity, we have to have continuity here too.
As we seek to agree trade deals with such countries, the UK must address the SDGs too. They apply in the United Kingdom, as the noble Baroness, Lady Bennett, has pointed out, as well as internationally. We know that this is right, and that it is in our interests. Can the Minister say, for example, which African countries have yet to agree rollover arrangements and what the sticking points are? What happens if these are not agreed by the end of this year? Will the Government guarantee existing market access for developing countries and undertake thorough and timely assessments of the impact of any changes, looking at this through a development lens?
The Government have said that any trade deals with developing countries will be in keeping with our commitments to the SDGs. I expect the Minister to reiterate this. The safest and easiest thing to do would therefore be to put this commitment in the Bill. I look forward to hearing what the Minister says.
My Lords, I am grateful to the noble Lord, Lord Purvis, for giving me the opportunity to press the Minister on a couple of issues in the context of these amendments. Amendment 39, which relates to the sustainable development goals, is presumably a bit like motherhood and apple pie—something we would all wish to sign up to. Equally, Amendment 97, which calls on the Minister
“to report annually on the impact of trade agreements to which the UK is party on the world’s least developed countries”
will strike a chord with the Minister—my noble friend Lord Younger—regarding his remarks to me on day two of Committee that we want to avoid the unintended consequences of free trade agreements with these countries.
My specific question follows on from the remarks of the noble Baroness, Lady Sheehan, who expressed her wish to have expedited rollover agreements with African countries. I would like to press my noble friend on this. This seems bizarre. The United Kingdom was at the forefront, since so many of our Commonwealth countries were involved, in negotiating agreements with African, Caribbean and Pacific countries. These agreements, I understand, have now been rolled over into—I forget the exact term—European partnership agreements. Will my noble friend take this opportunity to set out which ones have been rolled over, what the timetable is, and why we seem to be dragging our feet on them when it surely must be a political priority, given our historic relationship with so many of these countries?
My Lords, new to the work of the Committee, I am impressed by your Lordships’ stamina during this long, five-hour session, so I will be brief, as before. I am grateful to the noble Lord, Lord Purvis, for proposing Amendments 39 and 97. It must be obvious to any with eyes to see that this planet and the environment are struggling to cope with the impact of our poor stewardship of their natural resources—the beautiful natural world that we, too easily, have taken for granted and abused. Whether it comes from the dulcet tones of David Attenborough, the announcement of the Earthshot Prize with Prince William yesterday or the sight of the damage that plastic waste is doing to so many species in our oceans, does not matter. What counts is our response.
I start by echoing the words of the most reverend Primate the Archbishop of Canterbury, who said that:
“Reducing the causes of climate change is essential to the life of faith.”
It is the way in which we express love and concern for our neighbours. Despite the overwhelming contribution of many so-called developed countries to try to hold back the tide of climate change, less-developed countries will lose most from the increases of global warming, which the Anglican Church feels keenly, because 90% of our communion is from the global south. The sustainable development goals of 2015 pursue a bold and ambitious agenda to tackle poverty and provide a sustainable future for the benefit of all people, wherever they live. It is a moral duty not to abandon those who are suffering and will suffer from the influence, such as ourselves, that we may bring to bear on others elsewhere. Sustainable development goals are a matter of concern for the other. Trade with the UK is more than a simple monetary exchange enriching individuals, organisations and businesses; it is a moral co-operation for a brighter future for all.
Passing these amendments would be a statement and sign of the Committee’s commitment to the most vulnerable in the world. It would express our intent and priority to look after others before ourselves, and will strengthen our relationship with partners around the globe. I hope these amendments will be accepted and find their place in stating the way that we, as a nation, choose to treat others and the world that God has entrusted to our care.
That concludes the work of the Committee this afternoon. The Committee stands adjourned. I remind Members to sanitise their desks and chairs before leaving the Room.
Committee adjourned at 7.28 pm.