My Lords, I thank all the speakers in this debate. I also echo the thanks from the noble Baroness, Lady Chakrabarti, to the staff for allowing us to get to where we are. We might have had a rocky ride and have missed a few words here and there, particularly the exchange between the noble Baroness and the noble Lord, Lord Lansley, but we are here and we are making progress and we owe them a vote of thanks for keeping us going.
The debate has been rich and the issue has been given a good going over. As the noble Baroness, Lady Chakrabarti, and others have said, my noble friend Lord Hendy spoke powerfully on the key amendment with a huge amount of knowledge. He confirmed that we took the right decision to hold his speech over from last Thursday. It would not have done well to have had the first part last week and the second part today. I am glad we were able to hear it—some of us got it twice, but it was still jolly good—and I congratulate him on that.
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I will speak to Amendments 52 and 94. They fit into the general pattern, as I have been describing. Amendment 52 effectively rules out ISDS from the start and requires proceedings that might have been raised under that to be taken under UK tribunals and UK courts. I think most people would expect that from a mature democracy, such as ourselves, particularly as we have well-established and well-respected legal arrangements for hearing exactly these cases. Why invent a different system—a sort of made-up scheme—which, as most people have complained about, is done mainly in secret? The amendment also contains a suggestion that, if the ISDS is required for good reason, and it may well be that in future that the Government might have persuasive reasons, it would be allowed only if parliamentary approval had been achieved.
Amendment 94 deals with what happens in the event of there being an ISDS process. The Secretary of State must report to Parliament on the outcome of the arbitration or on what alternative dispute resolution has been substituted for that and make sure that information is also available to Parliament. Taken together, these are within the main discussions we have had. They are a variation on a theme that ISDS may have been of value in the start, when these new ideas about trade agreements were being brought forward and when people were seeking to secure investment in sometimes difficult territories and in countries for which legal activity was not, perhaps, at the same standard. But I think these days are past, and we have certainly had ample evidence of that. What are we going to do? There is no doubt that ISDS is alive and well: it is in the CPTPP trans-Pacific partnership.
Therefore, if we are going to go into that—and the Government seem keen that we should do so—what position are the Government going to take on that? We ought to discuss it and know about that.
On the existing rollover agreements, as has been said, there are elements of ISDS, although, for instance, on the Japan agreement we have had it confirmed, I think on the Floor of the House, that there is no ISDS provision in that. It is a mixed blessing, but we have had only 20 of the 40 or so rollover agreements signalled to us as being successfully rolled over. Who knows what is in the rest of them? It is still a live debate as we speak.
I have two other points which, perhaps, have not made as much of an impact as they should have done. Existing trade agreements are, to a large extent, set in stone. There is not much happening in terms of updating them or bringing them forward to the 21st century. Nobody would claim that the current agreements have kept pace with developments in human rights and environmental protection—a point made by noble Lords including the noble Earl, Lord Caithness. We have heard, but it is an extraordinary thing when you reflect on it, that they effectively set up a parallel legal system and offer benefits to investors with no real corresponding obligations. That cannot be right. Even if we were concerned about the ISDS mechanism for reasons other than the ones already discussed, the idea that somehow there is additional protection on top of that provided in the actual agreement and that the benefit goes to the investors and there is no corresponding requirement or downside for them, seems deeply unfair and something that would require us to act.
We need something that is going to replace ISDS. I do not think we are the only country to have realised that. If the Minister thinks that ISDS has a future and is the way forward, he really has to use his speech—and, perhaps, if he does not have time, to write to us—to give us better and further particulars. I do not think that many people around the table today or participating virtually believe that we are in that position.
What is available for the future? An ombudsman system has been suggested. Some sort of informal arbitration system that would work around that might be a way forward. The EU investment court system was being developed and we were an active part of that before we left the EU. Maybe there is a way in which we can link back to that, particularly if it does not have an automatic roll back to the European Court of Justice. There are also, as we have heard, international multilateral investment systems in discussion.
Whatever happens, we cannot stay where we are. We have to move forward. We have to have a fair and open system that is available to all and has the wider protections that we think are missing at the moment, obligations on those who wish to pursue them that they cannot evade and an appeal mechanism to make sure that everything is done that can be done to make sure that a firm decision is made. As the noble Baroness, Lady Kramer, said, and she is right, we are in danger of being left behind if we stick with an outdated ISDS system. We need to move on from where we are and we need to be alive to that. This is something that the Government really have got to take the lead on. I look forward to hearing from the Minister.