This is a small group of amendments from my noble friend Lord Davies of Brixton and me on ISDS and the mechanism that comes with it. I am sure the Minister will respond, “Don’t worry, it will all be fine, the UK hasn’t been sued”—but we have. We and the French Government were sued with regard to previous issues on this.
My concern relates to two areas. First is the accession of Canada, which has shown under previous trade remedies to be quite keen, or at least a number of businesses in it have been. We have seen that in recent years. The other issue I am keen to put on the record and on which I seek clarification from the Minister is around the UK, or individual countries, changing their approach because of possible threats. I know that that is hypothetical—we do not want to go down to hypotheticals—but often Governments do not move forward with specific issues because there is a possibility of disputes or because in other areas there have been disputes raised against them.
The investor-state dispute settlement allows foreign companies to sue a Government for any actions that they argue could affect their profits. Conversely, it allows British companies—the Minister may well pick up on this—to sue other Governments that breach ours. In the past, the ISDS court system has been used
to challenge increases in minimum wage and countries’ internal attempts to bring public services back into public ownership. When New Zealand joined the CPTPP, it opted out of the ISDS system with the countries that invested most in New Zealand. Why have the UK Government not asked for such exemptions? As a result, rather than taking back control, with the CPTPP the Government are possibly handing multinational corporations huge powers to challenge the potential overturn of UK government decisions and laws.
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The risk of ISDS is not just in losing an action against us, but also in the possible legal fees required to fight and defend against any challenges that are made; some of the other defences that the Australian Government had to make have cost millions of pounds. ISDS can also affect the decisions of Governments not to act—we have not stepped away from that or got side letters. We saw this in New Zealand, whose Government did not introduce plain packaging—despite it being their intention—after they saw the challenge Philip Morris had taken against the Australian Government, even though the Australian Government won that case.
There are some inconsistencies, so I seek clarification from the Minister on the Government’s position on ISDS. As we know, the UK has negotiated side letters with Australia and New Zealand to exclude ISDS provisions bilaterally. Though the UK Government have not confirmed that such exclusions will have been negotiated—I presume at the request of both those Governments and not of the UK Government—it would be interesting to know why we agreed to those side letters in those cases if the Government’s preferred position is to include ISDS provisions. The UK Government are clearly happy to accede to those requests, as these side letters mean there is clear precedent for agreements to be made with CPTPP members and other states. As we progress the FTA with Canada, will there be there any willingness from our Government or the Canadian Government to look at bringing in any ISDS measures or remedies?