My Lords, in moving Amendment 7, I shall also speak to the others in this group, which it is difficult to argue about knowing what is to come further down the agenda and on the list of amendments. I mean this in the sense that it talks about and effectively looks to amend what I will call the status quo ante. I say this because we very much hope that the Government will accept later amendments about scrutiny and other issues; this would, of course, considerably change what would be said in Clause 2, which is about the implementation of international trade agreements.
In some senses, this debate will largely be conducted in a vacuum. I hope I will be able, as I go through, to argue the points that I want to make and that there are points here that we need to focus on quite hard. This is
particularly because the opening subsection here—Clause 2(1)—is drafted very broadly, and I will make a particular point about it. I will read it out:
“An appropriate authority may by regulations make such provision as the authority considers appropriate for the purpose of implementing an international trade agreement to which the United Kingdom is a signatory.”
This seems such a wide power that is being given to Ministers, and it needs to be questioned in its own right. However, obviously, it plays back into what I have just been saying regarding future amendments that we will discuss in relation to the power of Parliament and where and how its various committees have a role in this process.
Amendment 7 is very narrowly drawn; it suggests that, before “appropriate” we put in “necessary and”, which would make it read “considers necessary and appropriate” in relation to the power being given to Ministers. There may well be an argument against what I am saying along the lines of, “This is splitting hairs and is a legal definition that we do not need to worry about; it is common in many parts of the statute book and we should not be concerned about it.”
However, I thought it would be worth raising this as an earlier point on the agenda because a similar amendment was moved in the Commons by the Member for Dundee East. Regarding the powers in Clause 2, he pointed out:
“The effect of the amendment would be to limit the scope of the powers”.—[Official Report, Commons, 18/6/20; col. 130.]
He described those powers as “vague and subjective”. I cannot possibly comment on that, but I look forward to hearing the Minister’s response to it. I want to quote, very briefly, what the Minister in the other place said when faced with this amendment:
“The power is needed to implement obligations arising from continuity trade agreements into domestic law over time and in all circumstances.”
He went on:
“Without such an ability to make changes, the UK would be at risk of being in breach of our international obligations.”
I pause, perhaps for hollow laughter. He then said:
“I can assure colleagues that the powers in the Bill will be used in a proportionate way ... The Government view ‘appropriate’ and ‘necessary’ as synonymous”.—[Official Report, Commons, 18/6/20; col. 131.]
That made me think a little, and I went to check the dictionary for my own satisfaction. It defines “appropriate” as:
“Suitable or proper in the circumstances”.
However, it defines “necessary” as “essential” and “needing to be done”. I really do not think that these are synonyms; I hope that when the Minister responds, he will be able to throw a little more light on to this.
However, I pause only to set the scene for discussions picked up in later amendments—on which I am very pleased to be joined by the noble Baroness, Lady McIntosh, and the noble Lord, Lord Purvis—and one in my name that I will speak to shortly. As I said, Amendment 9 deals with a situation that we hope will change, but it is basically about the use of the powers that are in the Bill and would be used should it be necessary to change or adjust the terms of a free trade
agreement currently organised through the EU but that will become a matter for the UK once the interim period is finished.
We think that Clause 2(1) is important and the whole of the clause deals with the way these powers are implemented but also constrained. The point was made in the other place that, although the primary drafting of Clause 2(1)—which gives the power to
“make such provision as the authority considers appropriate”—
is very wide, there are constraints further on, particularly in relation to limits on such matters as not allowing the rule to be used to change tariffs, for instance. In fact, this is because there are powers in other parts of the statute book that would deal with that. Nevertheless, it is an example of the Government’s argument—which I am sure we will hear from the Minister when he responds—which is that, although this is a very broad-based power, it is necessary because of the uncertain way in which these things might change over time.
However, I wonder whether the Minister, when he comes to respond, might look in particular at some of the issues raised in the Explanatory Notes, paragraph 36 of which states:
“Not all obligations in EU-partner country trade agreements will have been fully implemented by the EU in EU law … by the end of the transition period.”
Therefore, the power in Clause 2 will be necessary to pick this up going forward. Could he give examples of areas where this applies? The Explanatory Notes talk about “procurement” and
“mutual recognition … in respect of enforcement or compensation provisions.”
They may well be the limits, but it would be helpful for the Committee to know a little more about that, and, when the Minister responds, I would be very grateful for this. If he wants to write to me, I will understand.
Paragraph 37 of the Explanatory Notes says:
“It is also possible that adjustments may be required to ensure that the new UK-partner country trade agreements work outside the original EU context.”
It states that this might require a “change to UK law”. We are now talking about changes to primary legislation so, again, it would be helpful if the Minister could give us some examples in relation this. The third point is that paragraph 38 says that it is important that we have continuity over time and that regulations must be “up to date”. Again, I think we accept that this is necessary, but it would be useful to have examples.
I do not want to detain the Committee too long on this, but I point out that the power in Clause 2 is very widely drawn. Constraints are implied in the way the Explanatory Notes are drafted but, as we know, these are not part of the statute book and are not able to be prayed in aid. We need statements from the Government to make sure that those arrangements are clear and available for us as we go forward. I think that deals with Amendment 7.
Amendment 10 would apply the provisions in the Bill to trade agreements other than the EU rollover trade agreements and allow the Bill to act as a framework for future trade policy. I suppose that, in tabling this amendment at this time, we are anticipating debates to come, as I have mentioned.
However, it is important that we get the context for this right. It is a complete mystery to me—despite the extensive discussions that we had the last time the Bill was in your Lordships’ House and despite our subsequent meetings with the current Minister and officials about this—why the Government cannot see their way towards an accommodation with those of us who believe very strongly that there is a role for Parliament to play that is not constrained by the negative resolution procedure under CRaG and that the Government would benefit from having more engagement with Parliament during the process of setting up trade deals and in relation to what they are doing, and would benefit in their negotiations with third parties on deals. This is because there would always be the constraint under which Governments would be able to say that they were not able to get such-and-such through Parliament and therefore they could not take it further. However, these issues will be rehearsed on future days, so I will not go into them in any detail, but I wanted to get a bit of the sense of that into the debate that we shall have on this group of amendments.
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I refer in particular to a paper published recently by the Global Economic Governance Programme at the University of Oxford, which set out in very clear terms the rationale for parliamentary scrutiny. It is worth running very quickly through a couple of points on that. First, we need to bear in mind that we are talking about, as has already been said in these discussions, moving the way in which we do trade deals away from where we are currently with the EU—with its extensive parliamentary structure and lots of involvement from committees and civil society—to the situation that existed 30, 40 or 50 years ago. In a sense we are looking back to that time, and of course it is right that trade deals then were very much about tariffs and border measures. There was not very much public attention or national scrutiny and debate in the papers or in civic society.
However, things have changed so much. Recent trade deals touch on a vast array of economic and social policy areas. They are not just about removing border taxes but are about aligning regulations, so they have substantial implications for the way in which different areas of the economy are now being regulated, from farming and food standards, as we will come to shortly, to manufacturing, financial services and accounting, which are among the key areas and drivers of our economy, to making sure that we have proper regulation for the transfer of data and, of course, as we will be coming to, healthcare considerations. Contemporary trade agreements involve policy decisions that are increasingly akin to domestic policy in terms of their impact, and they should be scrutinised.
Of course, the reason why we are not having such scrutiny is that it is alleged by the Government that the existing system under the royal prerogative is satisfactory —but this has been criticised for a very long time. It is not unreasonable to quote Walter Bagehot, who stated as far back as 1867:
“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.”
He is regarded as being the authority on most matters parliamentarian, and I think we ought to listen to him at this stage.
Thirdly and finally in this little tour d’horizon of the issues to come, one of the problems that we face here is that the treaty process scrutiny that we currently have under CRaG is retrospective. All the deals have been done and all that we are being asked to do is look at them. Our role in Parliament is being restricted to looking at the implementation of the treaty into UK law. There are a number of problems with that. First, we do not see the wider context. Secondly, lots of the legislative changes required under trade agreements are for the future and we never get a chance to look at those in any great detail. Also, if we are going to look at the detail of regulations that are put through in trade agreements, we have to be certain that the regulations that are being put forward are not being done in secondary legislation environments—this is particularly true of food regulations—which means that we do not get the full attempt to scrutinise them in the round. For all those reasons, and many more that I am sure we will come to in future, we have to persuade the Government that they are very close to reaching an accommodation regarding the process now going on in our various committees dealing with trade, but that it requires them, as a matter of honour and of principle, to make an offer to Parliament about bringing Parliament to the table on the main issues in front of us.
Amendment 10 would extend the processes that we hope to come to in later amendments, and to which we hope the Government will listen, about not just applying the provisions of the current Bill to continuity agreements with existing EU trade agreements but allowing the Bill to act as a future framework for future trade policy. If the Government were prepared to move on that, we would be behind them all the way to make sure that that was as efficient and effective as possible; I give that undertaking now.
Amendment 103, which is a sort of catch-all safeguard, would raise the current level of scrutiny from being purely consideration and negative recommendation to the super-affirmative procedure. I commend the amendments to the House and beg to move.