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Oral Answers to Questions
(5 years, 4 months ago)
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James Duddridge (Rochford and Southend East) (Con)
The Secretary of State for the Home Department (Sajid Javid)
Tacking online grooming is one of our highest priorities. We are increasing our investment in law enforcement and legislating on online harms to bear down on the threat. In November, I also co-hosted a hackathon in the United States, where tech companies developed an artificial intelligence product to detect online grooming, which will be sent out licence-free for all technology companies to use worldwide.
James Duddridge
I was particularly impressed by the hackathon and the tools used. Will my right hon. Friend explain in more detail how what he saw in the US can be used here in the United Kingdom?
Sajid Javid
I gladly will. The hackathon event that I attended in the US involved the giant tech companies that we all know of. They worked together to develop a new artificial intelligence product that will detect online grooming; that is the intention. The technology showed the industry at its best and most creative, and it will help change people’s lives.
Vicky Foxcroft (Lewisham, Deptford) (Lab)
The Home Secretary will be aware that next Thursday we have a debate on the public health model to reduce youth violence. A key aspect of the public health approach is cross-departmental working, so will the Minister commit to inviting other relevant Departments next week so that they can listen, if not respond, to this important debate?
Sajid Javid
The hon. Lady makes a good point about serious violence. It is important to look carefully at this public health approach, which is why I have talked of it at length in the last couple of months and have already set out the Government’s intention to have a statutory duty on public bodies and agencies to work together on it.
Mark Pritchard (The Wrekin) (Con)
On the wider issue of child grooming, does the Home Secretary agree that the delays by Telford and Wrekin Council in setting up an independent inquiry into the child grooming that has gone on in that borough is completely unacceptable and that it needs to get on with it for the victims and the victims’ families?
Sajid Javid
I strongly agree with my hon. Friend. It is very unfortunate that the inquiry has been delayed; it is very important in the interests of justice and especially for those victims and their families, and I hope the council just gets on with it.
Chris Elmore (Ogmore) (Lab)
I know that the Home Secretary takes child grooming online extremely seriously. I am sure he agrees, however, that there is a need to have better education for, and understanding among, young people so that they can see the signs and feel free to report when they are uncomfortable and concerned about what is happening, particularly on social media platforms. Will the Secretary of State set out what more he can do to make sure young people have that understanding and feel free to report when they are worried about what could be happening online?
Sajid Javid
The hon. Gentleman is absolutely right to raise that point, and the companies can do more to help young people to help themselves when online. When I was recently in the US, I met all the tech giants, and there are tools that they can roll out and they have promised to do just that, but there is also a role for parents in helping their children to be much more aware online.
Mr Philip Hollobone (Kettering) (Con)
What is the maximum penalty for online child grooming and how many convictions have been secured?
Sajid Javid
Sadly, the amount of abuse that we are seeing is increasing year by year. There was a 23% increase in all child sex offences in the year to March 2018 and a 206% increase since 2013. The good news is that much more work and effort is going into this; each month there are around 400 arrests and 500 children safeguarded.
Nick Thomas-Symonds (Torfaen) (Lab)
Tackling online crime needs to be cross-border, yet the Government have failed to get the Schengen information system, or SIS II, and the European Criminal Records Information System included in the political declaration. They have also not identified exactly what our relationship with Europol and Eurojust will be going forward, and we have only vague promises on maintaining the benefits of the European arrest warrant. When will the Government act to stop this diminishing of our ability to tackle crime?
Sajid Javid
The hon. Gentleman will know from the information we have already published that we have reached a good agreement with Europe on future security co-operation, for example on passenger name records, DNA and other important databases. He mentioned the SIS II database, and there is also the criminal records database; we will continue to work together on those issues, and I am sure we can reach an agreement.
Toby Perkins (Chesterfield) (Lab)
The Minister for Policing and the Fire Service (Mr Nick Hurd)
As the Home Secretary has made clear, tackling the abhorrent crime of child sexual abuse is a priority for the Government, and this is reflected in the fact that it is one of six national threats in the strategic policing requirement.
Toby Perkins
For victims of historical child sexual exploitation to come forward, they have to have confidence that their claims will be not only taken seriously but tackled with due urgency. A constituent of mine tells me that South Yorkshire police have recently merged their historical child sexual exploitation department with their violent crime department. This means that whenever a new violent crime comes in, victims of child sexual exploitation have to wait for their case to be dealt with. What can the Minister do to ensure that specialism and due urgency are brought to these cases?
Mr Hurd
I accept the hon. Gentleman’s point that victims need to have confidence in the police system. That is why we have agreed to provide grants for specialist operations in a number of forces, including South Yorkshire police. Just as critically, we are investing in prevention and technology to identify online abuse.
Michael Fabricant (Lichfield) (Con)
The hon. Member for Chesterfield (Toby Perkins) is absolutely right to make that point, but is the Minister aware that the chief constable of Staffordshire, Gareth Morgan, who chairs the committee of chief constables regarding this sort of offence, has told me that there is a growing trend for people accused of such crimes subsequently to wrongly accuse others of such a crime, so that that can be used as mitigation? In other words, they are saying, “Don’t blame me. I’ve already been attacked in this way.”
Mr Hurd
I thank my hon. Friend, but I cannot comment on the truth or otherwise of his contribution. However, I want to press on the House the Government’s commitment to bear down on this abhorrent crime, not least by providing the police with the support and resources they need in terms of investment and powers.
Sarah Champion (Rotherham) (Lab)
I commend the Home Secretary for his commitment to preventing all forms of child abuse, but he knows that it is not just the police who need resources; it is survivors as well. Many people come forward only in adulthood to report child abuse, but statutory support stops at the age of 18. Will the Minister make a commitment to provide support to victims and survivors regardless of their age?
Mr Hurd
The hon. Lady has represented her constituents extremely well, and she has extremely brave constituents who have stood up in this context. We already provide support for victims and survivors of child sexual abuse, but I certainly take on board the point that she has made and I will be happy to discuss it with her personally.
Louise Haigh (Sheffield, Heeley) (Lab)
If the leaks over the weekend are to be believed, the Government intend to deliver a real-terms cut in Government funding to our overstretched police for the ninth year running. Does the Minister not agree that passing the buck to local ratepayers is unfair to those forces that have cut the most and can raise the least and that it fundamentally fails to meet the demand from legacy and current child sexual exploitation and the enormous demand from cyber-crime and soaring violent crime?
Mr Hurd
The hon. Lady knows that I will not comment on leaks, but I would simply point out that this Government took the steps that resulted in an increase of £460 million of public investment in our police system this year, in a settlement that she and her colleagues voted against.
Stephen Kerr (Stirling) (Con)
Antoinette Sandbach (Eddisbury) (Con)
The Minister for Immigration (Caroline Nokes)
The Home Office is putting in place a range of support for EU citizens applying to the EU settlement scheme, particularly for those who are most vulnerable. This includes assisted digital support for those unable to make online applications, a new customer contact centre and indirect support to be provided through organisations such as community groups and charities.
Stephen Kerr
I am of course pleased that the Minister has made clear the Government’s commitment to European Union citizens living here, particularly because there are parties in this House who have spread fear and alarm among EU citizens by questioning the Government’s commitment to their status. Does the Minister agree that those Members who spread fear and alarm should set the record straight and reassure those in our communities who are from the EU that their rights are guaranteed?
Caroline Nokes
My hon. Friend is right to point out the importance of sending a message of reassurance to EU citizens living here not only that they can stay but that we want them to stay and are taking steps through our settled status scheme to enable them to do so through a straightforward online digital process. I am sure my hon. Friend will welcome the fact that 95% of the people who have been through the first phase of beta testing of the settled status scheme found it very straightforward to use.
Antoinette Sandbach
Some EU countries, including the Netherlands, have restrictions on holding dual nationality, which is leading to some Dutch citizens here having to choose between a UK or Dutch passport. What can the Minister do to reassure the Dutch diaspora in the UK that Brexit will not have an impact on their rights? Is she reaching out to her European counterparts to see what progress can be made in persuading other member states to loosen their restrictions?
Caroline Nokes
The UK allows individuals to hold other nationalities alongside their British citizenship, and those with dual nationality already have the right of abode here and do not need to do anything. EU citizens do not need to obtain British citizenship to protect their status and can remain here indefinitely by applying to the settled status scheme, so there is no need for them to relinquish their current nationality. However, my hon. Friend makes a good point about reaching out to other EU member states. It is important that we continue that work, because they are vital partners when it comes to spreading the message to the diaspora communities about their right to stay.
Kate Green (Stretford and Urmston) (Lab)
The Roma are still among the most marginalised EU citizens in this country. Will the Minister say what special steps the Government are taking to reach out to Roma support groups to encourage their citizens to apply for settled status and to support those who have digital or English-language difficulties?
Caroline Nokes
In October, we announced £9 million of grant funding to charities and other organisations so that they may assist people, particularly those in vulnerable groups, through the process of applying for settled status in this country. We want to ensure that the maximum number of people apply and that those requiring the most support can access it easily via assisted digital services or, in exceptional cases, face-to-face support. It is important that we acknowledge that many groups may face challenges, which is why the Government have made £9 million available to help.
John Cryer (Leyton and Wanstead) (Lab)
Given the likely large number of applicants, has the Minister considered allocating specific funding to Citizens Advice?
Caroline Nokes
As I mentioned in my previous answer, we are providing up to £9 million of grant funding, which will be made available to civil society organisations to mobilise services targeted at vulnerable EU citizens. We already work with a group of organisations, including local councils, to help them to help their residents, but the scheme will be open to applications from bodies exactly like Citizens Advice, and I hope that many such organisations will be prepared to play their part in helping citizens.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
This country benefits enormously from the one million Poles who have settled on our island. Will the Minister assure me that she will do everything possible to engage with the Polish community in London? Perhaps she will join me at one of the Polish clubs, such as Ognisko or POSK, to take the message directly to the citizens?
Caroline Nokes
Interestingly, one of my first meetings after becoming Immigration Minister was with the Polish ambassador. We recognise that many Polish citizens live in this country, and working through the embassy and with the diaspora community is one of the best ways of reaching out to them. I would be delighted to take up my hon. Friend’s invitation and shall very much look forward to it.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Statistics from the British Medical Association suggest that nearly four in 10 NHS doctors from the EU are blissfully unaware of the Government’s settled status scheme. Does the Department not need drastically to up its game in raising awareness and ensuring that as many of those who need to apply do apply?
Caroline Nokes
We are already piloting the settled status scheme, and we have established a significant database of EU nationals with whom we correspond regularly via email through Home Office communications channels. Employers also have an enormous role to play. The hon. Gentleman highlights people working in the NHS, so I am delighted to inform him that NHS trusts are reaching out to their employees and working hand in hand with us through the second phase of piloting the settled status scheme.
Conor McGinn (St Helens North) (Lab)
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
We know that high-quality, insightful data is critical to tackling domestic abuse. We are using the domestic abuse statistical bulletin and the 3,200 responses to the domestic abuse consultation to develop an ambitious package of action to transform the Government’s response to domestic abuse, which will include the publication of the draft domestic abuse Bill in this Session.
Conor McGinn
Last week, in St Helens, a mother of two young children was stabbed to death in her own home. Although domestic abuse-related crime recorded by the police has increased by 23% in the last year, worryingly, in the same period, the number of prosecutions pursued has fallen not insignificantly. What is the Minister doing to ensure that the increasing number of victims who come forward, showing incredible bravery, can be confident that, in doing so, it will lead to their perpetrator’s conviction?
Victoria Atkins
I thank the hon. Gentleman for raising this. We are, of course, pleased that more victims are trusting the system and coming forward to report abuse. I am obviously very sorry to hear of the terrible case in his constituency. Interestingly, from the bulletin, we know that 77% of all referrals made to the CPS by his local constabulary have resulted in charges, which is higher than the national average, and 80% of all such prosecutions resulted in a conviction, which is again higher than the national average. But, of course, part of the purpose of the draft domestic violence and abuse Bill and the package of non-legislative measures is to ensure that everyone, both inside and outside the criminal justice system, knows what domestic abuse is and how we should tackle it.
Mr Gavin Shuker (Luton South) (Lab/Co-op)
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Kerry McCarthy (Bristol East) (Lab)
Shabana Mahmood (Birmingham, Ladywood) (Lab)
Bridget Phillipson (Houghton and Sunderland South) (Lab)
The Minister for Policing and the Fire Service (Mr Nick Hurd)
The Government understand that police demand has changed and that there is increased pressure from changing crime. Taxpayers are investing an additional £460 million this year in the police system, including income from council tax precepts. We are reviewing police spending power ahead of the provisional funding settlement to be announced later in December.
Mr Shuker
I am surprised that the Minister has grouped these questions together, as my question is about Bedfordshire. I am sure he will point to the additional funding provided for Operation Boson in this financial year, but does not the fact that the Home Office had to make that award demonstrate the scale of the problem of funding an urban area as a rural force? I have worked on a cross-party basis for the last eight years to try to get the funding formula fixed. Does he agree that the test of any future police settlement is whether it increases funding for Bedfordshire?
Mr Hurd
I am not entirely sure about that, and I think other MPs would also disagree. There is a clear Bedfordshire issue, which has been reflected in representations from MPs on both sides of the House. In recognition of some of the exceptional pressures it faces, not least through gang activity, Bedfordshire police has, as the hon. Gentleman notes, received an exceptional grant of £4.6 million. The funding settlement for next year will come shortly, and following that will be the comprehensive spending review.
Debbie Abrahams
I spent a night shift with Oldham police officers Josh and Ryan the other week, and our first call was to a threatened suicide. With Greater Manchester police’s budget cut by £215 million since 2010, and with 2,000 fewer officers, how sustainable is it for the police to be the default service in such cases because mental health and social services do not have the resources?
Mr Hurd
I hope the hon. Lady will welcome the £10.7 million increased investment in Greater Manchester policing this year. I hope she also welcomes the increased funding for mental health services in the Budget. I am absolutely determined, and I hope she shares that determination, that part of the dividend from that increased investment is reduced demand on the police.
Kerry McCarthy
In the past four years, recorded crime in Avon and Somerset has risen by 40%, with violent crime rising by over 75%. By contrast, the number of charges brought has fallen by 26%. When is the Minister going to listen to police and crime commissioners and chief constables and give the forces the funding they need so they can actually tackle crime in our constituencies?
Mr Hurd
I was in Bristol last week talking to the police and crime commissioner and the chief constable, as well as visiting the Home Secretary’s former manor. I hope the hon. Lady will welcome, although she voted against it, the additional £8 million that has gone into Avon and Somerset policing, and I am sure she will look forward to the police funding settlement shortly.
Shabana Mahmood
West Midlands police have had the second highest funding cut in the country. Our chief constable has said:
“I think criminals are well aware now how stretched we are.”
And we have the rising levels of violent crime to prove it. Will the Minister now confirm that he will give our police the funding they need from our national Budget and spending settlement and not push the pressure downstream to local budgets, which will hit the poorest hardest and will not provide all the money that is needed?
Mr Hurd
With respect to the hon. Lady, I am not going to take any lessons on progressive taxation from the party that doubled council tax when it was in power. I am sure that, even though she voted against it, she will welcome the almost £10 million of additional investment in west midlands policing this year and will look forward to the funding settlement, which is imminent.
Bridget Phillipson
Northumbria’s police force has had its funding cut by more than a quarter since 2010 and has lost more than 100 officers in the past year alone. This is the largest cut of any force in England, yet crime and antisocial behaviour are on the rise. Why will the Minister not accept any responsibility for this situation, which is making it harder for police officers to do their jobs and keep our communities safe?
Mr Hurd
I am not sure the hon. Lady was listening; the Government absolutely accept that there is increased pressure on the police, as demand rises and crime becomes increasingly complex. That is why we took the steps in the police funding settlement for 2018-19 that resulted in an increased investment of £5.2 million in Northumbria police, with more to come, I hope, in the police funding settlement.
Andrew Selous (South West Bedfordshire) (Con)
First, let me thank the Minister for the extra £4.6 million that he gave us last week. But does he agree that Bedfordshire has been underfunded since damping was introduced in 2004 and that part of what we need to do is refocus the police’s priorities on the bread and butter crime issues, which perhaps involves getting others to take more responsibility for missing children and mental health issues?
Mr Hurd
I thank my hon. Friend for his assiduous campaigning on behalf of Bedfordshire police, and I am delighted that we were in a position to make that exceptional grant. He will know that there is a lot more to do in the funding settlement and the comprehensive spending review to come. I also entirely agree with him that we need to do more, working with our NHS partners, to help reduce the demand on the police.
Ben Bradley (Mansfield) (Con)
Funding has rightly been directed towards cyber-crime, counter-terrorism and other new threats, but I know the Minister recognises the importance of neighbourhood policing. What plans does he have to support the police in managing crimes such as theft, antisocial behaviour and drug use, which can make residents feel unsafe in their communities?
Mr Hurd
One of the Home Secretary’s and my priorities is increasing activity in relation to crime prevention, and good neighbourhood policing is at the core of that. More investment is going into the police system. Just as importantly, the police are developing guidelines on best practice on good neighbourhood policing, which is being rolled out across the country.
Derek Thomas (St Ives) (Con)
I represent the furthest south-west constituency in the country, and what I hear from people is that they just do not feel we are getting a fair share of the money available. So what can the Minister do to make sure that funds are available and that they are evenly distributed across the country so that my constituents have the safety and security they need?
Mr Hurd
The Government recognise that there is additional pressure on the police and we recognise the need to increase their capacity. Additional money has been put into Cornwall police this year, which I hope my hon. Friend welcomes. I am sure he will look forward, like the rest of the House, to the details of the police funding settlement, which is imminent.
Tim Loughton (East Worthing and Shoreham) (Con)
Like Bedfordshire, Oldham and other force areas, Sussex has faced severe pressures in funding its police numbers, so our police and crime commissioner bravely urged a high increase in the police precept in order to recruit 200 additional officers each year for the next four years. That amount has been wiped out by the reassessment of the pension requirement over the next few years, such that we will not be able to recruit any more without digging into reduced funds. How are we going to get extra police officers?
Mr Hurd
I join my hon. Friend in saluting the leadership of Katy Bourne, who, like most PCCs, is either protecting or increasing the number of police officers as a result of the settlement we took through Parliament this year. We have debated the issue of the increase in pension costs. The Treasury has made it clear that it is going to contribute to part of the cost. The rest of the solution will be evident in the police funding settlement.
Henry Smith (Crawley) (Con)
I, too, pay tribute to the Sussex PCC, Katy Bourne, who has successfully recently bid for almost £1 million of youth intervention funding. That is really important for my Crawley constituency, which has seen an increase in drug and knife-related crime. May I have an assurance that this partnership working with the Home Office will continue to tackle this issue?
Mr Hurd
I assure my hon. Friend that partnership working is absolutely at the heart of this Government’s approach to tackling serious violent crime and the running of drugs outside our major cities. Everything we have learnt from the examples elsewhere shows that effective multi-agency partnership works, and the Government are actively supporting that through funds such as the early intervention fund.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
The Minister deliberately and consistently confuses money raised locally by the precept with money from central Government, but he will be aware that the Select Committee on Home Affairs, the National Audit Office and the Public Accounts Committee have all sounded the alarm about inadequate central Government funding. Most recently, the Mayor of London has said that London police numbers will plummet without increased funding. When will the Minister stop blurring the facts and make sure our police get the money they need?
Mr Hurd
I am not blurring any facts. What I am doing is challenging a deception carried out by the Labour party on the British public: that somehow someone else will always pay. The Government have no money: every pound that we spend is raised in tax or borrowed, meaning that the taxpayer pays interest on it. That is the fact. If we want more investment in policing—and we do—we have to pay.
Sir Vince Cable (Twickenham) (LD)
Further to the Minister’s answer on police pensions, does he accept the estimate by Chief Constable Thornton that the changes will cost the police service more than £420 million, or the equivalent of 10,000 police officers? Will he explain why that will not be met in full?
Siobhain McDonagh (Mitcham and Morden) (Lab)
The Minister for Policing and the Fire Service (Mr Nick Hurd)
This year, the Government took through a police funding settlement that resulted in an additional £460 million of public investment in policing. Most police and crime commissioners are either maintaining or increasing the number of police officers.
Siobhain McDonagh
One of the casualties resulting from the cut of 21,000 police officers since 2010 has been the safer neighbourhood team in Mitcham town centre. The consequence has been an increase in drug dealing, street drinking, fighting, antisocial behaviour and men urinating in the street, which has meant that women do not want to take their children into the town centre. When will the Home Office accept the correlation between visible policing and crime, so that we can afford to have enough police to put more bobbies back on the beat in Mitcham and every town centre?
Robert Neill (Bromley and Chislehurst) (Con)
Gloria De Piero (Ashfield) (Lab)
This morning, I learned that a café in my constituency had been broken into for the third time this year. This is not an isolated incident: burglary in Nottinghamshire is up this year, as it was up last year. How much more evidence do we need to get more police on the streets?
Matt Warman (Boston and Skegness) (Con)
Police numbers depend, of course, on the entry routes. Does the Minister agree that it is right that we not only encourage more graduates to become police officers but preserve the entry route for non-graduates? Does he further agree that it is important that that is a ministerial decision, not one for the College of Policing?
Mr Hurd
I thank my hon. Friend for raising an extremely important point. At a time when we are increasing investment in policing and the police are actively recruiting additional officers, who comes into the police force is critical. The police apprenticeship route, to which my hon. Friend refers, is a hugely important introduction and a hugely attractive opportunity for young people to learn and earn in a valuable and exciting job, without the burden of student fees on their neck.
Peter Kyle (Hove) (Lab)
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Offering accommodation in return for sex is illegal, and those who do so can face up to seven years in prison. The Minister for Policing has committed to engage with technology companies, including craigslist, and to press them to meet their responsibility to provide their services safely and to prevent them from being used for criminal activity.
Peter Kyle
When sexual exploitation occurs on the streets of this country, the police act, yet craigslist is facilitating and profiting from sexual exploitation through sex for rent, and nothing is happening whatsoever. They are acting like pimps; why are we not treating them like pimps?
Victoria Atkins
That is a very strong message to craigslist and one that the Government are happy to engage with it on and ask what is going on with its website. One only has to look at some of the adverts to see the coded and yet all too obvious messages they contain. I thank the hon. Gentleman for the work that he is doing on this, but the difficulty, as he knows, is that the evidence for victims is pretty difficult to get hold of because, understandably, people can be reluctant to give evidence. One of the first jobs on our to do list is to speak to craigslist and other tech companies to tackle this.
Carolyn Harris (Swansea East) (Lab)
Earlier today, Housing Women Cymru launched its “not a landlord” campaign, which aims to end the growing problem of sex for rent in Wales. Offering free and reduced accommodation in return for sex is illegal, and it is facilitated by online platforms. Those advertising are not landlords; they are criminals. What more will the Government do to review the laws around this to ensure better enforcement and to put an end to this sickening exploitation?
Victoria Atkins
First and foremost, we should look at what is happening on the online platforms, which is why the conversations with craigslist and others are so important. As the hon. Lady knows, we are investing £150,000 in research into what prostitution in the 21st century looks like, and I very much hope that that research will look at this important subject, because we know that, sometimes, people who are extremely vulnerable are being exploited by their landlords, and that is simply unacceptable in this day and age.
Stephen Metcalfe (South Basildon and East Thurrock) (Con)
The Secretary of State for the Home Department (Sajid Javid)
The Government are considering a range of options for a future immigration system. Any decisions taken in respect of our future system will be based on evidence and extensive engagement. We will publish a White Paper on the future border and immigration system soon.
Stephen Metcalfe
As my right hon. Friend will know, the science and research community thrives on international collaboration, which brings great benefits to the UK and helps us to maintain our position as a science superpower. However, technicians, scientists and researchers are not always the most highly paid individuals who visit the UK. Will he therefore confirm that any future immigration system will recognise the skills that an individual brings, not just their level of pay?
Sajid Javid
Britain is at its best when we are open to talent from across the world. I can confirm to my hon. Friend that we will take into account what he has said. I agree that mobility is vital for research and innovation in particular, and I want Britain to remain at the forefront of these vital industries.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Home Secretary told the Home Affairs Committee that the immigration White Paper would be published certainly in December. He will know that there is obviously concern about the delays to the White Paper. Will he tell us now whether it will still be published in December and, if so, why it will be published after the meaningful vote?
Sajid Javid
All I can say at this point is that the White Paper will be published soon—I wish that I could say more than that. It is worth keeping in mind that this is the biggest change in our immigration system in four decades. It is important that we take the time and that we get it right.
Tom Pursglove (Corby) (Con)
As well as control, fairness as a principle and treating people equally regardless of where they come from in the world was right at the heart of why so many people voted to leave. What consideration is being given to that principle of fairness as we design a new immigration system?
Sajid Javid
One of the lessons from the Brexit vote was that people wanted to see control of our immigration system—one that is designed in Britain for our national interest, and that is certainly what we will be setting out. We want a system that is based on an individual’s skills and on what they have to contribute, not on their nationality.
Mr Speaker
Question 13 in the name of the hon. Member for Lanark and Hamilton East (Angela Crawley) is certainly germane to the question with which we are dealing and therefore—it is not obligatory—if she wishes to rise to her feet now and give the House the benefit of her thoughts we will be happy to hear them.
Angela Crawley (Lanark and Hamilton East) (SNP)
Sajid Javid
I recently made a statement to this House where I accepted much of what was in the Shaw review, including alternatives to detention, particularly detention of women. We are looking at piloting different approaches. We are in discussions at the moment, but we will be setting out more shortly to the House.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Is it not time that the Home Secretary showed some leadership and that he joined the Secretary of State for Housing, Communities and Local Government in his endeavours—the two Ministers working together to show the innovation, skills and creativity that immigrants bring to this country? Would not the Mayflower’s 400th anniversary celebration in 2020 be a wonderful hook to hang that on—celebrating what immigrants bring to this country?
Sajid Javid
I very much agree with hon. Gentleman’s sentiments about the importance of immigration. We are a much stronger country because of immigration and immigrants have contributed to every part of British life—not just our economy, but our families and communities. We should always be looking for opportunities to celebrate just that.
Sir Edward Davey (Kingston and Surbiton) (LD)
The Prime Minister is selling her Brexit deal by telling the country that it ends free movement of labour. Does the Home Secretary realise that it is completely unacceptable to have the meaningful vote without the White Paper having been published?
Sajid Javid
The right hon. Gentleman will know that, deal or no deal, there will be an end to free movement of labour.
Joanna Cherry (Edinburgh South West) (SNP)
At last Tuesday’s Select Committee on Home Affairs, the Home Secretary said that it was correct for colleagues from Northern Ireland to highlight particular regional concerns about immigration, and stated:
“It is still possible to design a system that takes into account some regional difference.”
Does he agree that the same is true for Scotland?
Sajid Javid
I am a little surprised by that question, on the basis that under the current immigration system, regional difference regarding Scotland is recognised, with the shortage occupation list, for example. I agree with the premise of the hon. and learned Lady’s question—that, although the immigration system will be a national one, we should look at any regional requirements.
Joanna Cherry
I am delighted to hear that the Home Secretary accepts that the need for regional variation in Northern Ireland is mirrored by a similar need in Scotland, although I would underline that Scotland is a nation, not a region. If he is prepared to accept that, will he give me an undertaking that when the White Paper comes out, he will consult with all stakeholders in Scotland—including the Scottish Government and Scottish employers—and be open to the need for regional variation in Scotland, such as reintroducing the post-study work visa?
Sajid Javid
The commitment that I am very happy to make to the hon. and learned Lady is that we will consult extensively when the White Paper is published, and that of course includes with our friends in Scotland.
Afzal Khan (Manchester, Gorton) (Lab)
In a week’s time, MPs will be asked to make a decision in potentially the most important vote on our country’s future. Are we to do so without any idea of what our post-Brexit immigration system will be?
Sajid Javid
The hon. Gentleman said “without any idea”. We have already set out the principles of what a post-Brexit immigration system will look like; for example, there will be no freedom of movement and it will be a skills-based system. As I made clear in response to an earlier question, whether there is a deal or no deal, there will be a new immigration system.
Mike Kane (Wythenshawe and Sale East) (Lab)
The Secretary of State for the Home Department (Sajid Javid)
Our primary concern is for the safety and security of Asia Bibi and her family, and we welcome a swift resolution to the situation. A number of countries are in discussions about providing a safe destination once the legal process is complete, and it would not be right for me to comment further at this stage.
Mike Kane
May I congratulate the Home Secretary on his very brave personal testimony about what happened to him at school years back?
The Catholic Church in England and Wales, and the Catholic Church in Scotland, have both said that they will contribute to secure Asia Bibi’s safety. As I chair the Catholic Legislators Network, will the Home Secretary meet me and other colleagues to discuss the issue?
Sajid Javid
The hon. Gentleman is right to raise concerns about Asia Bibi, and I am sure that those concerns are shared by all Members of the House. It is not appropriate for me to talk about a particular case, especially if there is a risk that it might put the individual or their family in some kind of further risk, but I assure him that my first concern is the safety of Asia and her family. We are working with a number of countries, and I will do anything I can to keep her safe. I will happily meet the hon. Gentleman to discuss the matter.
Clive Lewis (Norwich South) (Lab)
Will the Minister meet me to discuss the case of my constituent Mohammed Al-Maily, a Saudi national with indefinite leave to remain who has been told that he is liable for removal from the UK despite living in the UK for 28 years with his wife? The reason the Home Office has stated is that it shredded the archives detailing whom it had granted indefinite leave to remain to, and the Saudi embassy claims to have lost his passport evidencing his right to leave to remain in the UK.
Mr Speaker
That is what I would describe as illegitimate shoehorning. It is quite common for colleagues to seek to shoehorn into another question their own preoccupation. To do so so nakedly by advertising another case is a trifle cheeky on the part of the hon. Gentleman, but in observation of and tribute to his ingenuity, as well as to his cheek, perhaps the Secretary of State can be allowed to answer.
Mr Speaker
I think the hon. Member for Norwich South (Clive Lewis) should be well satisfied with that.
Carol Monaghan (Glasgow North West) (SNP)
I appreciate the comments that the Home Secretary has already made about Asia Bibi, but of course there are many, many Christians in Pakistan who live under constant threat of persecution. Will the he work with his Home Office colleagues to make sure that their cases for asylum are treated in a sympathetic manner?
Sajid Javid
The hon. Lady is quite right to draw attention to that. We believe that there are currently some 40 individuals in Pakistan on death row because of blasphemy offences. That highlights perfectly her concerns. I am sure that the whole House shares those; we will always do what we can to help.
Mary Glindon (North Tyneside) (Lab)
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
The Disclosure and Barring Service is undertaking a major change in its IT services and has concluded that its R1—release one—system is not suitable for further roll-out. The DBS will be procuring a new supplier to deliver these IT services and has agreed a short contract extension with the current provider to enable a smooth transition so that all operational services are protected.
Mary Glindon
Does the Minister believe it is appropriate to waste yet more public money by continuing to outsource that vital project? Does she agree with the Public and Commercial Services Union that it should be brought in-house, providing proper accountability and better value for money?
Victoria Atkins
I do not agree with the idea that it should be taken, wholesale, in-house. The DBS has taken full account of the findings and recommendations of the National Audit Office and Public Accounts Committee reports earlier this year, and, using its review, has decided to procure new providers to ensure delivery of services. We want to do this in as short and as frictionless a way as possible, which is why a short extension has been granted.
Helen Whately (Faversham and Mid Kent) (Con)
The Secretary of State for the Home Department (Sajid Javid)
I recently announced that 29 projects endorsed by police and crime commissioners across England and Wales will receive £17.7 million of funding to divert children and young people away from violent crime. I published the Government’s new strategy for tackling serious and organised crime and pledged at least £48 million for 2019-20 to target illicit finance. I have been to America to convene a hackathon where industry experts work together to develop tools to detect online child grooming. All this work is designed to keep our people safe.
Helen Whately
Fruit growers in my constituency welcome the seasonal agricultural workers scheme pilot, although they are concerned that 2,500 workers will not be enough. Will my right hon. Friend confirm that during the implementation period under the proposed withdrawal agreement, EU workers will be able to continue to come to the UK to work on fruit farms in my constituency? Will he advise on whether he has plans to expand the pilot?
Sajid Javid
I welcome my hon. Friend’s interest in this pilot scheme for agricultural workers. I can assure her, first, that it will be carefully evaluated, and if we need to expand it, we will do that. I can also confirm that workers from the EU will still be able to come and work in the UK during the implementation period.
Karen Lee (Lincoln) (Lab)
The Prime Minister has told us that austerity is over and that we are going to save millions from her Brexit deal, and the Minister regularly blames Labour for austerity. We should remember, though, that the Government have given tax cuts to the very wealthy and big corporations: it would seem that the country can afford those. The evidence of cuts is clear—12,000 fewer firefighters and rising response times. The blame cannot be put on local government and fire services. In the light of the Prime Minister’s comments, and if austerity really is over, when will the Minister commission a review of fire service funding—and will he recognise, rather than ignore, the difference between allocated, as opposed to unallocated, reserves?
The Minister for Policing and the Fire Service (Mr Nick Hurd)
Our firefighters do an incredibly important job. They have been well supported by the Government, with stable funding over the last comprehensive spending review period, in return for efficiency plans. We are conducting a demand review, to ensure that as we go into the next comprehensive spending review, our fire service gets the support it needs.
Several hon. Members rose—
Mr Speaker
The hon. Member for Harrow East (Bob Blackman) is looking remarkably stoical, in the light of his team’s two-goal defeat by four goals to two at Arsenal yesterday.
Bob Blackman (Harrow East) (Con)
Sajid Javid
I could suggest that we proscribe Arsenal, Mr Speaker, but I am not sure how well you would take that.
It is clear that Hezbollah has engaged in and promoted terrorist activity around the world. That is why we have already proscribed its military wing, but I am aware that Hezbollah leaders have themselves cast doubt on the distinction between the military and political activities, so I understand why my hon. Friend asks that question. It is not Government policy to comment on proscription without coming properly to the House, but I assure him that we are keeping this under review.
Mike Amesbury (Weaver Vale) (Lab)
Mr Hurd
I thank the FBU for both questions. The truth—and it is always ignored in questions about firefighters from those on the Labour Front Bench—is that the underlying demand for the fire service has fallen, in terms of the number of primary fires and fatalities arising from fires. Under those circumstances, stable funding over the last CSR period was a good deal for the fire service. We are very serious about ensuring that the fire service has the resources it needs, with a proper understanding of the demand and risks it faces over the next few years.
Antoinette Sandbach (Eddisbury) (Con)
The Minister for Security and Economic Crime (Mr Ben Wallace)
rose— [Hon. Members: “Hear, hear.”] Seen but not heard is the role of the Security Minister.
The Counter-Terrorism and Border Security Bill, which is currently transiting through the House of Lords, includes new measures to ensure that our statute book reflects 21st-century threats. That is why we have increased sentencing. New offences around online harm and extraterritorial reach of some existing offences will ensure that our law and order and intelligence services have the tools they need.
Anneliese Dodds (Oxford East) (Lab/Co-op)
Sajid Javid
The hon. Lady raises an important issue. I quite agree that we want to make this scheme as easy and simple as possible. I want all 3.5 million EU citizens to feel that they can stay as easily as possible. I want them to stay, and I can give her that confirmation.
Vicky Ford (Chelmsford) (Con)
In Chelmsford, the police, the Crown Prosecution Service and youth offender programmes occasionally have recommended that a youth offender has a curfew, to safeguard them from being further targeted by gangs, but the magistrates are often not aware of all the information and overturn that. Will the Minister’s team work with Justice Ministers on the better sharing of information with magistrates, so that the full intelligence picture is taken into account?
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Very much so; my hon. Friend has hit on the point that the children coming before the youth justice system are very often themselves the victims of horrendous crimes. That is why, in the serious violence taskforce, we are bringing all Departments together to spread the message about data collection and sharing, which will then be disseminated nationally through local agents.
Bill Esterson (Sefton Central) (Lab)
Sajid Javid
We work very closely with the Treasury. That is why the Chancellor has personally turned up to hear the hon. Gentleman’s question; the hon. Gentleman must have given him advance notice. He will have to wait for the police settlement, which is not too far off, but he should question why he voted against the police settlement last year.
David Warburton (Somerton and Frome) (Con)
The Children’s Commissioner estimates that at least 46,000 children in England have been targeted by drug gangs and coerced by intimidation, violence and criminal incentives into the so-called county lines system of selling drugs across the country. What work is being done by my right hon. Friend’s Department to address this appalling exploitation of children and young people?
Victoria Atkins
As my hon. Friend and other colleagues who work so closely on this will know, county lines are the dissemination of violence and drugs from our major urban centres into rural and coastal areas. Just one of the many pieces of work arising out of the serious violence strategy is the setting up of the national co-ordination centre, where law enforcement agencies work together to share intelligence and advice so that we get to the real criminals behind this practice, and also help to support the children who are being exploited.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Minister for Immigration (Caroline Nokes)
I thank the hon. Gentleman for his question, which I know he raised at the Home Affairs Committee last week and again with me in Westminster Hall last week. Both the Home Secretary and I have undertaken to raise that with the Chancellor, who is obviously, as the hon. Gentleman will have noticed, on the Front Bench this afternoon.
Will Quince (Colchester) (Con)
Last month, I attended the Centre for Action on Rape and Abuse “Reclaim the Night” march in Colchester, along with hundreds of my constituents, in protest against sexual violence against women. What steps is my right hon. Friend taking to ensure that the police have the resources they need both to prevent these crimes and to bring those who commit these horrific offences to justice?
Sajid Javid
My hon. Friend raises a very important issue. It is about resources—that is why we saw an increase in police resources last year; and there will be a police settlement statement soon, which will look at resources going forward—but it is also about powers, and I remind him that we will shortly be bringing forward a draft domestic abuse Bill.
David Hanson (Delyn) (Lab)
Sajid Javid
We have an agreement with the EU—a draft agreement that this House can vote on—which gives us a very close relationship with the EU on security and co-operation, and it includes considering membership of Europol.
Several hon. Members rose—
Robert Courts (Witney) (Con)
What steps are Ministers taking to create an open and global immigration system?
Sajid Javid
It is very important that we remain open and global with our new immigration system and that we also make the best use of new technology. My hon. Friend will have heard the Chancellor announce in the Budget that we will be expanding e-gates to five other countries—the US, Canada, Australia, New Zealand and Japan—and we will now also be adding Singapore and South Korea to that list.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
Sajid Javid
As I said earlier, the White Paper will be published soon, but it is important for people to keep in mind that this is the biggest change to our immigration system in 45 years, and it is important that we get the detail right; then we can evaluate it together, properly.
Robert Neill (Bromley and Chislehurst) (Con)
For many victims of burglary, the intrusion into their home, personal space and life is tantamount to an assault. Is it not time that steps were taken to ensure that domestic burglaries are effectively treated as crimes of violence, in terms of police resourcing and priority, and sentencing?
Victoria Atkins
I thank my hon. Friend for his question. He is absolutely right: the intrusion into a person’s home in a domestic burglary can completely undermine their feeling of safety at home. That is why we continue to ensure that the police have the resources that they need to cut crime and keep our communities safe, and of course make sure that police and crime commissioners—for example, in London—set the policing priorities for their area.
Yvonne Fovargue (Makerfield) (Lab)
Marsha De Cordova (Battersea) (Lab)
Today is the UN International Day of Persons with Disabilities. On this day, we celebrate the contributions made by disabled people and call for our rights to be realised. In the last year, hate crime towards disabled people has risen by 33%. The UN has warned the Government that statements about disabled people have encouraged negative attitudes, which leads to the rise in hate. On this day, what action are the Government taking to tackle the rise in hate crime against disabled people?
Sajid Javid
We must of course—all of us, in every Department—do all we can to help vulnerable people, including disabled people. That includes addressing hate crime against disabled people, which is of course completely unacceptable. We refreshed our hate crime action plan recently. We are always looking to see what more we can do.
Gavin Robinson (Belfast East) (DUP)
Thank you, Mr Speaker. Will the Home Secretary, in developing a new immigration system, support on Wednesday the ten-minute rule Bill in the name of the hon. Member for Hampstead and Kilburn (Tulip Siddiq), which would end a ridiculous situation in which terror suspects have better detention rights than those seeking to make the UK their home?
Sajid Javid
I thank the hon. Gentleman for raising the issue; I will take a close look at that Bill.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
The Home Office asylum guidance for Afghan Sikhs is in desperate need of updating. I genuinely fear for the life of Afghan Sikhs sent back to Afghanistan because of the dangerous situation facing the Sikh community there. I am sure that the Minister is aware of the murder of 12 Sikh leaders only this July. Will she please meet me and Afghan Sikh representatives to discuss updating the Home Office guidance?
Caroline Nokes
I thank the hon. Lady for the question. She makes a really important point, particularly in the light of the murder of 12 Afghan Sikhs back in the summer. I would of course be delighted to meet her, and will make sure that my office makes the necessary arrangements.
Owen Smith (Pontypridd) (Lab)
Will the Home Secretary intervene personally in the case of my constituent Mariya Kingston, who has been in dispute with the Home Office for two years? Her mother died on Friday, and she would like to attend the funeral in Uzbekistan. Will the Home Secretary please facilitate that?
Sajid Javid
I am very sorry to hear about the hon. Gentleman’s constituent’s family bereavement. I will take a closer look at that case.
Richard Burden (Birmingham, Northfield) (Lab)
The Home Secretary will be aware that West Midlands police force has lost 2,000 officers since 2010. He may not be aware that last week, a Conservative councillor in my constituency, which is next door to his, suggested that the response to rising crime should be for local communities to have a whip round to fund private security patrols. Does that represent Government thinking?
Sajid Javid
Recognising the police’s need for resources, we increased funding this year by £460 million in total; that includes almost £10 million for the hon. Gentleman’s force. The most interesting question is why he voted against that increased funding.
G20 Summit
(5 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister (Mrs Theresa May)
With permission Mr Speaker, I would like to make a statement on the G20 summit in Argentina. Before I do so, I would like to put on record my thanks to President Macri for hosting such a successful summit. This was the first visit to Buenos Aires by a British Prime Minister, and only the second visit to Argentina since 2001. It came at a time of strengthening relations between our two countries, when we are seeking to work constructively with President Macri.
As we leave the European Union, I have always been clear that Britain will play a full and active role on the global stage as a bold and outward-facing trading nation. We will stand up for the rules-based international order; strive to resolve, with others, challenges and tensions in the global economy; work with old allies and new friends for the mutual benefit of all our citizens; and remain steadfast in our determination to tackle the great challenges of our time. At this summit, we showed that the international community is capable of working through its differences constructively, and the leading role the UK will continue to play in addressing shared global challenges. We agreed, along with the other G20 leaders, on the need for important reforms to the World Trade Organisation to ensure it responds to changes in international trade. We pursued our objective of making sure that the global economy works for everyone and that the benefits are felt by all. We called for greater action in the fight against modern slavery and tackling climate change, and I held discussions with international partners on security and economic matters, including on the progress of our exit from the European Union and the good deal an orderly exit will be for the global economy. Let me take each of these in turn.
At this year’s summit, I came with the clear message that Britain is open for business and that we are looking forward to future trade agreements. Once we leave the EU, we can and we will strike ambitious trade deals. For the first time in more than 40 years we will have an independent trade policy, and we will continue to be a passionate advocate for the benefits open economies and free markets can bring. We will forge new and ambitious economic partnerships and open up new markets for our goods and services in the fastest growing economies around the world. During the summit, I held meetings with leaders who are keen to reach ambitious free trade agreements with us as soon as possible. This includes Argentina, with whom I discussed boosting bilateral trade and investment, and I announced the appointment of a new UK trade envoy. I also discussed future trade deals with Canada, Australia, Chile and Japan, with whom we want to work quickly to establish a new economic partnership based on the EU-Japan economic partnership agreement.
On the global rules that govern trade, we discussed the importance of ensuring an equal playing field and the need for the rules to keep pace with the changing nature of trade and technology. There is no doubt that the international trading system, to which the United Kingdom attaches such importance, is under significant strain. That is why I have repeatedly called for urgent and ambitious reform of the World Trade Organisation. At this summit, I did so again. In a significant breakthrough, we agreed on the need for important reforms to boost the effectiveness of the WTO, with a commitment to review progress at next year’s G20 summit in Japan.
On the global economy, we recognised the progress made in the past 10 years, with this year seeing the strongest global growth since 2011. However, risks to the global economy are re-emerging. In particular, debt in lower income countries has reached an all-time high of 224% of global GDP. I called on members to implement the G20 guidelines on sustainable finance that we agreed last year and that increase transparency and encourage co-operation. At this year’s summit, I continued to pursue our mission to make the global economy work for everyone, and the need to take action, in our own countries and collectively, to ensure that the benefits of economic growth are felt by all.
Around the world, we are on the brink of a new era in technology that will transform lives and change the way we live. This has the potential to bring us huge benefits, but many are anxious about what it means for jobs. That is why in the UK, alongside creating the right environment for tech companies to flourish through our modern industrial strategy, we are investing in the education and skills needed so that people can make the most of the jobs and opportunities that will be created. We made strong commitments to improving women’s economic empowerment, and alongside that I called on G20 leaders to take practical action to ensure that by 2030 all girls, not just in our own countries but around the world, get 12 years of quality education.
To build fair economies and inclusive societies, we must tackle injustice wherever we find it. Around the world, we must all do more to end the horrific practice of modern slavery and protect vulnerable men, women and children from being abused and exploited in the name of profit. Two years ago, I put modern slavery on the G20 agenda at my first summit, and this year, I was pleased to give my full support to the G20’s strategy to eradicate modern slavery from the world of work. I announced that next year the Government will publish the steps we are taking to identify and prevent slavery in the UK Government’s supply chains in our own transparency statement. This is a huge challenge. Last financial year, the UK Government spent £47 billion on public procurement, demonstrating just how important this task is. I urged the other leaders around the G20 table to work with us and ensure that their supply chains are free from slavery, as we work to bring an end to this appalling crime.
On climate change, I made clear the UK’s determination to lead the way on the serious threat that this poses to our planet. We need a step change in preparing for temperature rises, to cut the cost and impact of climate-related disasters and to secure food, water and jobs for the future. As a UN champion on climate resilience, the UK will continue to pursue this agenda at next year’s UN climate summit. Nineteen of us at the G20 reaffirmed our commitment to the Paris agreement, but it remains a disappointment that the United States continues to opt out. I also announced that the UK will be committing £100 million to the Renewable Energy Performance Platform, which will directly support the private sector in leveraging private finance to fund renewable energy projects in sub-Saharan Africa.
This summit also gave me the opportunity to discuss important matters directly with other leaders and raise concerns openly and frankly. In that context, I met Crown Prince Mohammed bin Salman, first to stress the importance of a full, transparent and credible investigation into the terrible murder of Jamal Khashoggi and of those responsible being held to account—a matter which I also discussed with President Erdogan—and secondly, to urge an end to the conflict in Yemen and relief for those suffering from starvation and to press for progress at the upcoming talks in Stockholm. Our relationship with Saudi Arabia is important to this country, but that does not prevent us from putting forward robust views on these matters of grave concern.
I also discussed the situation in Ukraine with a number of G20 leaders. The UK condemns Russian aggression in the Black sea and calls for the release of the 24 Ukrainian service personnel detained and their three vessels.
At this year’s summit, we reached important agreements, demonstrating the continued importance of the G20 and international co-operation. It also demonstrated the role that a global Britain will play on the world’s stage as we work with our friends and partners around the world to address shared challenges and bolster global prosperity. I commend this statement to the House.
Jeremy Corbyn (Islington North) (Lab)
I thank the Prime Minister for the advance copy of her statement. This G20 summit met 10 years after the global financial crash, and the 20 nations that control 85% of the world’s GDP have been too slow to reject the failed neoliberal economic model that caused the crisis in the first place, but there are signs of change. On Saturday, I attended the inauguration of a G20 leader, President López Obrador of Mexico, who has won a significant mandate for change to the corruption, environmental degradation and economic failure of the past.
Of course, some G20 countries have no such democratic mechanisms, so while economics are important, our belief in universal human rights and democratic principles must never be subservient to them. The Prime Minister—[Interruption.] The Prime Minister told the media she would—[Interruption.]
Mr Speaker
Order. Do be quiet; it is awfully boring and terribly juvenile—[Interruption.] Order. The Prime Minister was heard, and overwhelmingly with courtesy. The same will apply in respect of the Leader of the Opposition. It does not matter how long it takes; I have all the time in the day. That is what will happen. Please try to grasp this rather simple truth.
Jeremy Corbyn
Thank you, Mr Speaker. The Prime Minister told the media she would sit down and be robust with Crown Prince Mohammed bin Salman, the chief architect of the brutal war in Yemen, which has killed 56,000 people and brought 14 million to the brink of famine. The Crown Prince is believed to have ordered the murder of Jamal Khashoggi. Rather than be robust, as she promised, we learn that she told the dictator, “Please don’t use the weapons we are selling you in the war you’re waging,” and asked him nicely to investigate the murder he allegedly ordered. Leaders should not just offer warms words against human rights atrocities; they should back up their words with action. Germany, the Netherlands, Norway and others have stopped their arms sales to Saudi Arabia. When will the UK do the same?
On Ukraine, as NATO has said, we need both sides to show restraint and to de-escalate the situation, with international law adhered to, including Russia allowing unhindered access to Ukraine’s ports on the sea of Azov.
Britain’s trade policy must be led by clear principles that do not sacrifice human rights. The International Trade Secretary claimed last summer that a trade deal between the UK and the EU would be easiest in human history, but all we have before us is 26 pages of vague aspirations. It seems that neither has he got very far on the 40 trade deals he said he would be ready to sign on the day we leave next year, unless the Prime Minister can update us in her response. In the light of last week’s report from the Foreign Affairs Committee, how does she intend to ensure that the 240 export trade negotiators she promised by Brexit day will be in place, given that the Government have had two years and only 90 are currently in post?
Did the Prime Minister speak again to President Trump at the G20? He seems to have rejected her Brexit agreement because it does not put America first. The International Trade Secretary claimed that bilateral US and UK trade could rise by £40 billion a year by 2030,
“if we’re able to remove the barriers to trade that we have”.
The Prime Minister claims that under her deal we can and will strike ambitious trade deals, but this morning we learned that Britain’s top civil servant in charge of these negotiations wrote to her admitting that there was no legal guarantee of being able to end the backstop.
It is clear, however, that some in the Prime Minister’s Government do want to remove barriers. Just this weekend, the Environment Secretary said, with regard to the Brexit deal and workers’ rights, that
“it allows us to diverge and have flexibility”.
Our flexible labour market already means that the UK has the weakest wage growth of all the G20 nations. Did the Prime Minister ask the other leaders how they were faring so much better?
UK capital investment is the second worst in the G20. The previous Chancellor slashed UK corporation tax to the lowest level in the G20, telling us—[Hon. Members: “Hear, hear!”] In doing so, he told us it would boost investment. It did not. Did the Prime Minister ask other G20 leaders why, despite having higher corporation tax, they attracted much higher investment?
Given that the G20 is responsible for 76% of carbon dioxide emissions, I welcome the fact that building a consensus for a fair and sustainable development was a theme of the summit. Why then did her Government vote against Labour’s proposal to include the sustainable development goals as a reference point when the Trade Bill was put before Parliament earlier this year? If present trends continue, many G20 nations will not meet their Paris 2015 commitments, so I am glad that the Government will be pursuing this agenda at next year’s UN climate summit, and I hope that they will also pursue it this week in the talks in Katowice, Poland.
Given that climate change is the biggest issue facing our world, it is imperative that a sustainable economic and trade model be put forward that puts people and planet over profit. Our country has the lowest wage growth in the G20, the lowest investment and poor productivity. Ten years on from the global financial crisis, this Prime Minister and too much of the G20 have simply failed to learn the lessons of that crash.
The Prime Minister
The right hon. Gentleman ranged over a number of issues. Let me pick out some key ones.
First, as I have made entirely clear in my conversations with Crown Prince Mohammed bin Salman, in the Foreign Secretary’s conversations with King Salman himself, in my conversations with King Salman and in other interactions with Saudi Arabia, we have been absolutely robust in our response in relation to the terrible murder of Jamal Khashoggi, and very clear about the need for those responsible to be held to account.
The right hon. Gentleman referred to the war in Yemen. I might remind him that the coalition intervention in Yemen was actually requested by the legitimate Government of Yemen and has been acknowledged by the United Nations Security Council.
The right hon. Gentleman asked whether I had spoken to President Trump. I did speak to President Trump in the margins of the meeting. I was clear with him that we can indeed do a trade deal with the United States of America with the deal that is on the table with the European Union. We recognise that the working group that exists between the UK and the USA, which is looking at trade arrangements for the future, has been making good progress.
The right hon. Gentleman made various other references to issues relating to trade. Yes, I did discuss trade with a number of the other leaders I met. Prime Minister Abe of Japan made it very clear that he looked forward to being able to discuss the United Kingdom’s possible membership of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and, indeed, that was echoed by others with whom I spoke at the G20 summit.
I am very interested that the right hon. Gentleman made so many references to trade. Of course, he used to want to do trade deals with other countries, and he put that in his manifesto, but just last week he said that he did not want to do trade deals after all. Trade deals will be important to the economy of this country in the future, and we are certainly committed to those trade deals around the rest of the world.
The right hon. Gentleman then talked about corporation tax. I might remind him that, yes, we have cut corporation tax, which has been of benefit to businesses, employers and jobs in this country, and guess what? We cut corporation tax, and we are raising more money from it. We have employment at record levels, and we are the first choice in Europe for foreign direct investment.
One thing that I omitted from my statement was that during some of the other conversations that I had with leaders of countries in South America, they were reflecting on the migration problem that is being caused by the terrible situation of the economy in Venezuela.
Mr Kenneth Clarke (Rushcliffe) (Con)
As the Prime Minister apparently did discuss with President Trump the question of future trade arrangements with America, will she tell us whether the President indicated any area of the American market, such as public procurement or financial or other services, that he might be considering opening up to us? If he repeated his request that we should open ourselves up fully to food imports, did she explain to him that we are unwilling to abandon the European standards that we have developed over the years to accept lower standards set by Congress, as he wishes, and that he really must adjust to the fact that we cannot forfeit all our other overseas markets to allow him to export food to this country?
The Prime Minister
My right hon. and learned Friend has raised two aspects of a potential trade deal with the United States of America. I have made it very clear to a number of people, in relation to the issue of agricultural products, that this is not a question of our membership of the EU or our adoption of EU standards, but will be a question for everyone in this country about the standards that we want to continue to have in relation to those products in the future.
As for the issue of opening up the American market for public procurement and financial services, the working group that exists between us and the United States is looking at exactly that.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
I thank the Prime Minister for advance sight of her statement and join her in congratulating President Macri on Argentina’s presidency of the G20. It is pleasing to hear that President Macri and the Prime Minister had productive talks on trade and investment; perhaps she will share more details of their content with the House.
Given the current strains on international diplomacy, it is welcome that the G20 was able to come together and deliver a joint statement of endeavour. The communiqué itself is clearly a compromise agreement, but it falls short in a number of areas. In particular, the pledge to look at WTO reform requires further explanation from the Prime Minister on what reform she believes is needed and why. Also, on the refugee crisis and our responsibilities, it seems that the communiqué has the bare minimum commitment rather than real ambition. That is particularly shocking given that this weekend marks the 80th anniversary of the Kindertransport—the journey of children who fled the Nazis. We should still have the same generosity of spirit towards refugees in this country today. I do, however, agree with the Prime Minister’s sentiments about the importance of the G20 to international economic co-operation, and I welcome the fact that commitments have been made to work together on economic opportunities and the greatest threat to our generation, climate change.
However, I note that in her press release the Prime Minister exclaimed that the summit gave her the opportunity to update leaders on her Brexit plans. Did the Prime Minister share with world leaders any concern that her deal is a lame duck? There are many questions for her to answer. Will she explain how she was discussing trade agreements when she will not be able to strike any deals until after the transition? Furthermore, can she explain how any of these discussions can take place when the backstop comes in, as she confirmed in the House last Monday that the UK will not be able to have any independent trade deals?
Does the Prime Minister see the direct contradiction in her claims of working in collaboration and partnership to deliver economic prosperity when her Brexit deal rips economic stability and opportunity from beneath our feet by taking us out of the European Union? I can see her shaking her head, but that is the reality: young people are going to be denied the opportunities that our generations had.
At the summit, did the Prime Minister use her time to discuss pressing human rights issues? What discussions did she have, and did she raise the matter of Khashoggi’s death with Mohammed bin Salman?
Finally, will the Prime Minister share with us an update on her Government’s actions over the past two years to tackle climate change, or has she been too distracted to get on with the job of government?
The Prime Minister
The right hon. Gentleman asked me about WTO reform, so let me give him a couple of the issues I raised in relation to that—I think from conversations with others that it is recognised that it needs to be addressed. One is the dispute resolution mechanism, which everybody recognises is too slow. If people are to be able to have faith in the rules set by the WTO, there needs to be a dispute mechanism in which they can have faith as well. Another key area of concern is the very slow progress the WTO has made on the digital economy and looking at the whole area of e-commerce. Those are just two of the issues that will be referenced in relation to WTO reform.
The right hon. Gentleman talked about trade deals and said—I was listening carefully—that we would not be able to strike trade deals until after the transition or implementation period. That is not correct: during that period we will be able to negotiate, sign and ratify trade deals, which can then come into operation at the end of the implementation period.
I hope we will all welcome the growing and developing bilateral relationship between the UK and Argentina, and when I was there I was pleased to be able to welcome the extra flight that will now take place from the Falkland Islands via Cordoba to São Paulo.
The right hon. Gentleman asked whether any pressing human rights issues had been raised. I specifically referenced in my statement a human rights issue on which this Government have been leading the world: modern slavery.
The Prime Minister
It is true, through the Modern Slavery Act 2015, and I am pleased to say that the Australians are now introducing legislation that mirrors ours in relation to supply chains. I encourage other countries around the world to do the same.
Anna Soubry (Broxtowe) (Con)
What was quite striking for many people when they saw the photograph was that, apart from Christine Lagarde, the chief of the International Monetary Fund, the Prime Minister was the only woman in the photograph, given that Mrs Merkel’s plane did not quite make it. The lack of women as leaders is really striking. The Prime Minister rightly says that since we put modern slavery on the G20 agenda two years ago, part of the purpose of the G20 is to build fair economies and inclusive societies, and in doing that we must tackle injustice. What does she hope to achieve to tackle the injustice of there not being enough women involved at all levels of government in the G20, but especially at the top?
The Prime Minister
My right hon. Friend and I share the desire to encourage more women to come into politics, and not just here in the UK. We want to see more women able to take senior positions in the political world in other countries as well. We have a good overall record on women’s employment here, but there is still more for us to do to encourage women to see politics as a career that they want to come into. To do that, we need to tackle some of the problems that have arisen, such as the harassment and bullying that women politicians sometimes receive, particularly through social media. Until Chancellor Merkel arrived, I was the only female Head of Government there, and the lack of female leaders sitting around the table was raised not just by Christine Lagarde but by other leaders around the table as well.
Sir Vince Cable (Twickenham) (LD)
Will the Prime Minister undertake to build on her role as a candid friend to Prince Mohammed and the Saudi regime by making an appeal for clemency on behalf of 12 men who currently face imminent execution, after torture, for the crime of practising a different religion?
The Prime Minister
We regularly raise individual cases with the Saudi Arabian Government, and we talk about human rights issues every time I meet them, but I am sure that the Foreign Office will look at the particular case that the right hon. Gentleman has raised.
Sir Roger Gale (North Thanet) (Con)
Did my right hon. Friend gain the impression from the G20 that beyond the European Union there is a big wide world waiting and wanting to do business with the United Kingdom? Contrary to the impression given by the spokesman for the Scottish National party, the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), will it not be perfectly possible under the withdrawal agreement for us to strike and sign deals, ready for immediate implementation at the end of the transition period?
The Prime Minister
I am able to give my hon. Friend the confirmation that he seeks in relation to those issues. On his second point, it is absolutely the case that during the implementation period—the transition period—we will be able to negotiate, sign and ratify trade deals with other countries around the world. Indeed, there may be aspects of those trade deals that we will be able to bring into practice.
Rachel Reeves (Leeds West) (Lab)
As the Prime Minister knows, this year is the 10th anniversary of the Climate Change Act 2008. I welcome what she has said about providing a leadership role at the UN climate summit next year, but our own country is not on track to meet the fourth and fifth carbon budgets, so what are we going to do to provide real leadership on these issues at the G20 and to get back on track to meet those important carbon budgets?
The Prime Minister
The first thing is to lead by the example that we have set. As the hon. Lady says, the Climate Change Act came into place 10 years ago, and that was an important step that showed leadership here in the UK. We must continue to do that, but another aspect that we are also leading on is encouraging the greater development of resilience to climate change. As we look around the world, we see many people, particularly in the Pacific islands, who will be significantly affected by climate change. Helping those people and others—in the Caribbean, for example—to build their resilience is also important.
Sir Nicholas Soames (Mid Sussex) (Con)
Will my right hon. Friend elaborate on what executive actions, beyond condemnation, the G20 partners agreed in response to Russia’s blatant and wholly unacceptable piracy in the sea of Azov and the wider Black sea?
The Prime Minister
As my right hon. Friend has indicated, the G20 was clear in its condemnation of this action. There was discussion among the G20 leaders on condemnation of the action, but of course one of the G20 leaders is President Putin. That is why the question of executive action is one that I think we will be taking up in other forums. We, the UK, have been one of the leaders in pressing in the European Union for sanctions against Russia for activity in Ukraine, and we will continue to do so.
Caroline Lucas (Brighton, Pavilion) (Green)
Speaking today at the UN climate summit, Sir David Attenborough told world leaders that the collapse of our civilisations and the extinction of much of the natural world are on the horizon, which is a stark warning. I welcome the Government’s contribution to the renewable energy platform, but will the Prime Minister explain why they are refusing to engage in the important fossil fuel subsidy peer review process, which is being led by the G20, despite the UK handing out billions to dirty energy every single year?
The Prime Minister
We recognise the significance of climate change, but—the hon. Lady referenced a quote from David Attenborough—we also recognise the importance of action in other areas, such as the protection of species around the world. That is why we held a conference here in October on the international wildlife trade, which is another aspect of the future of our world. As for energy sources, we believe in having a mixed economy, but we are of course a member of the Powering Past Coal Alliance and we are encouraging others to become members.
Mr John Whittingdale (Maldon) (Con)
I thank my right hon. Friend for the Government’s support for Ukraine in the face of increased Russian aggression. Will she look at ways of stepping up pressure on Russia to release not just the 24 sailors, but the 68 other Ukrainian political prisoners held in occupied Crimea and in Russia, and to cease the blockade of Berdyansk and Mariupol in the sea of Azov?
The Prime Minister
As my right hon. Friend points out, recent events in Ukraine are not the only example of Russian aggression, and in fact they fit into a pattern of Russian behaviour. We will continue to press for appropriate action to be taken in these matters. As I said in response to a previous question, the UK has been leading in the EU in pressing for sanctions, and we will continue to do so. I look forward to discussing with EU leaders the further steps that can be taken.
Chris Bryant (Rhondda) (Lab)
Members from across the House campaigned for a Magnitsky Act to deal with human rights abusers in Russia and other countries, and we were delighted when such measures made their way into the Sanctions and Anti-Money Laundering Act 2018. However, the Foreign Office is dragging its heels and has not yet implemented any of them. Will the Prime Minister please chivvy along the Foreign Secretary to ensure that we get them in place as soon as possible? That is something we could do now.
The Prime Minister
I will of course ensure that the Foreign Office is looking at this issue. Along with the Dutch, we are encouraging others to take on the concept of a human rights-related Magnitsky Act, but until we leave the European Union there is a limit to what we can do when it comes to the individual imposition of sanctions.
Vicky Ford (Chelmsford) (Con)
I thank the Prime Minister for pointing out that an orderly exit from the EU will benefit the entire world’s economy. In the backstop, the UK will have tariff and quota-free access to the entire single market, but we will not be paying contributions to the EU budget or following EU rules on free movement. Who should be more uncomfortable about that: the UK or the EU?
The Prime Minister
It is precisely because, should that circumstance come into place, we would have access without paying and without free movement that the EU is uncomfortable about the prospect of the UK being in the backstop.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
The Prime Minister mentioned that she spoke to President Trump on the margins of the summit about trade policy. Is she aware that the summit did not look that inspirational back home? Did she have any good informal talks with European allies? Did she get any really good bonuses out of those conversations?
The Prime Minister
I had a number of discussions with European allies, but I focused my meetings at this G20 summit on those to whom I do not normally get the opportunity to speak. That was why I was pleased to have bilaterals with Prime Minister Trudeau, Prime Minister Abe, President Erdoğan, President Macri of Argentina and the President of Chile, and I have referenced the particular issues taken up with Saudi Arabia.
Stephen Crabb (Preseli Pembrokeshire) (Con)
The Prime Minister continues to show commitment to the world’s poorest nations. In her ongoing discussions with G20 allies, will she urge them to step up to the plate and ensure that next year’s replenishment round for the Global Fund to Fight AIDS, Tuberculosis and Malaria is full and effective so that the world can take another step forward in fighting these killer diseases?
The Prime Minister
I am very happy to take up the issue my right hon. Friend refers to. There was recognition of the issues around HIV and AIDS, and of course one of the days of the summit was World AIDS Day. This is one of those issues where everybody around the table recognises that there is still work for us to do.
Mary Creagh (Wakefield) (Lab)
When the Prime Minister was discussing the brave new world of post-Brexit free trade deals with world leaders, did any of them point out the supreme irony that her own Treasury forecasts show those deals can be achieved only by reducing the amount of free trade we do with our nearest market of 500 million people and by losing access to 36 other free trade deals that our membership of the European Union currently gives us?
The Prime Minister
As the hon. Lady will know, we are working on the continuity arrangements for the trade deals that currently exist between the EU and various countries around the world. It is not right to say that it is only by not having that trade relationship with the EU that we can have trade relationships around the rest of the world. There is a recognition, both in the political declaration and in the Government’s own proposals, that we can have a good trading relationship with the EU and good trading relationships, different from those that currently exist, with other countries around the world.
Dr Julian Lewis (New Forest East) (Con)
The Prime Minister’s mention of the World Trade Organisation reminds me that the Chancellor, in his Budget, wisely allocated £3 billion to £4 billion for practical preparations for exiting the EU on a WTO basis. Has each Department now received its allocated share of those funds? If not, why are they being held back?
The Prime Minister
The funds are not being held back, and Departments will receive notification of the allocation of the funds in the next few days.
Alison Thewliss (Glasgow Central) (SNP)
The Yemen data project has reported that 42 airstrikes happened over the course of 10 days, of which 62% hit civilian targets. Did the Prime Minister discuss with Crown Prince Mohammed bin Salman how the bombs she sold him will be used in the coming months?
The Prime Minister
What I discussed with the crown prince was the need to find a political solution to what is happening in the conflict in Yemen. This is very important, and talks are due to take place in Stockholm. I have encouraged all parties to take part in those talks. The way to resolve the issue in Yemen is through a long-term political solution.
Mrs Anne Main (St Albans) (Con)
The Prime Minister has twice given assurances to the House today that we can, indeed, do trade deals and that those deals can be signed and ratified, but not implemented until we have left the transition period. Can she confirm what the status of those trade deals would be should we go into the backstop period?
The Prime Minister
The backstop would require some restrictions in relation to trade deals—notably, we would be applying the common external tariffs—but there would be some freedom for us in relation to trade with other countries around the world. I am glad my hon. Friend has repeated the confirmation I have given that it would be possible during the transition period to ratify, negotiate and sign up to trade deals. Of course, it is the intention of the Government, and the clearly stated intention of the European Union, that at the end of that implementation period we will be in a position to operate those trade deals.
Mike Gapes (Ilford South) (Lab/Co-op)
The Prime Minister has referred to a pattern of Russian behaviour, and she has also condemned the Russian aggression in Ukraine. Did she also have an opportunity in her conversations with Crown Prince Mohammed bin Salman or with President Erdoğan to talk about Syria and the continuing crimes being carried out by Russia and its Iranian and Hezbollah allies there?
The Prime Minister
We regularly raise the issues around Syria with other partners in a variety of ways. We recognise the continuing problems in relation to Syria. Of course, again, a long-term solution in Syria can only come with a political solution. It is good that we have seen some limitation of the action taking place in certain parts of Syria in recent months, but obviously we have sadly also seen continuing action against people in Syria.
Maggie Throup (Erewash) (Con)
I welcome my right hon. Friend’s announcement that the Government will be taking steps to eradicate slavery in their supply chain, as that was an issue I highlighted in a private Member’s Bill a couple of years ago. Does she agree that everyone in this House should be able to be united on this issue?
The Prime Minister
It is absolutely the case that this eradication of modern slavery is an issue that everybody across the whole House should be working towards, and they should be supporting the Government’s efforts in this area. The Modern Slavery Act 2015 was an important step, but there is much more for us to do, which is why we are continuing to press forward on further action on this.
Gavin Robinson (Belfast East) (DUP)
The high five between President Putin and Crown Prince bin Salman may have seemed jovial, but the undertone of geopolitically significant relationships comes with it. Did the Prime Minister have any discussions with our NATO allies on supporting the international rules-based order, which she mentioned, not only through encouraging compliance, but perhaps through coercing it?
The Prime Minister
I certainly had a number of conversations about exactly the point of maintaining the international rules-based order. We recognise that in a number of different areas this is under significant pressure, but we have been leading in some areas to ensure that it continues, not least, of course, in the work we have done in the Organisation for the Prohibition of Chemical Weapons.
James Cleverly (Braintree) (Con)
Among the members of the G20 are some countries that were in crushing poverty only a few decades ago. Will the Prime Minister reject the calls to move away from liberal free market economics and instead promote that as an agenda, removing tariff barriers imposed by wealthy countries and using free trade to lift other poor nations and people around the world out of that poverty?
The Prime Minister
My hon. Friend is absolutely right; it is trade that develops economies, helps to lift poor countries out of their poverty and helps to provide for people in those countries. One of the points I made at the summit was that the increasing protectionism we see—the increasing pressure on the rules-based international order in relation to trade—will only hit the poorest hardest.
Emma Reynolds (Wolverhampton North East) (Lab)
The Japanese Prime Minister clearly does not want Japanese companies such as Honda and Nissan to face friction at the UK-EU border. When will our Prime Minister be clear that there is a trade-off between retaining the frictionless access to EU markets we currently enjoy but which will not be in place after the transition period in her deal and striking free trade deals with other countries around the world?
The Prime Minister
First, the hon. Lady has made an assumption about the political declaration. If she looks at it, she will see the ambition that is there on our future trading and relationships with the European Union. Yes, there is a balance for us in that relationship with the EU between an acceptance of rules and standards, and the checks that take place in relation to frictionless trade. The Government have recognised that—we did that when we published the White Paper in the summer—but that does not mean we cannot sign trade deals with the rest of the world. We will be able to sign those trade deals around the world.
Philip Davies (Shipley) (Con)
The Prime Minister referenced her deal with the EU. Before she embarked on the negotiations with the European Union, what were the top three successful negotiations she had negotiated?
The Prime Minister
I will tell my hon. Friend one of the negotiations I successfully negotiated. When I became Home Secretary, I was told that the exchange of passenger name records across the European Union would be very important in improving our security against terrorists and organised criminals. I was also told that we were the only country that wanted it and therefore it could not happen inside the European Union. What do we now see? By painstaking work, because I refused to accept that view, we have a passenger name records directive.
Rachael Maskell (York Central) (Lab/Co-op)
There is a time in politics when words are not enough; 56,000 people have been killed and 14 million are living through a humanitarian crisis in Yemen—what is the Prime Minister’s price to ensure that human rights are more important than blood money from the sale of arms?
The Prime Minister
The question of providing for those people who are suffering terribly in the Yemen today is about ensuring that there is a political solution in the Yemen. We believe that there is an opportunity for that now and that is what we have been encouraging all the parties to come together for. That is why the talks that are going to take place in Stockholm over the coming days and weeks are so important.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
While the G20 were meeting in Buenos Aires, the COP24 conference was gathering in Poland. Will my right hon. Friend reaffirm our commitment to maintaining our world-leading position on climate change resilience and our commitment to meet our obligations as agreed in Paris three years ago, no matter what the position of our closest ally, the United States, or our future relationship with the European Union?
The Prime Minister
I am happy to give our continued commitment to the obligations that we signed up to. In fact, my right hon. Friend the Secretary of State for Work and Pensions, in her previous ministerial role in energy, was a leading figure in helping to ensure that the Paris accord came together. We remain committed to it.
Tom Brake (Carshalton and Wallington) (LD)
Let me return to the Japanese Prime Minister. He asked our Prime Minister to rule out no deal. Will she?
The Prime Minister
I have negotiated a good deal for the UK with the European Union.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
I hope that during the course of the summit the Prime Minister managed to speak to the Brazilian President, Mr Temer, about his successor, Mr Bolsonaro, who takes over on the 31st of this month and whose virulent homophobic remarks during the election campaign were unacceptable and unconducive to good relations with the United Kingdom.
The Prime Minister
Of course, the incoming President who made those remarks was not there at the G20 summit; as my hon. Friend said, it was the current President, Mr Temer, who was there. We will continue to be clear with all countries around the world about the importance that we attach to equal rights and human rights.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
May I congratulate the Prime Minister on all the air miles she has clocked up recently on our behalf? I urge her Government not to forget their promises on anticorruption. The G20 declaration commits leaders to tackling
“vulnerabilities in the financial system”.
What with the National Crime Agency—which the Prime Minister had a hand in setting up, as she reminded us—estimating that hundreds of billions of pounds are currently being laundered through the UK, will she give us a date for when the commitment to consult on the creation of a criminal offence for corporations of failure to prevent money laundering will materialise, so that we can practise what we preach?
The Prime Minister
I thank the hon. Lady for her remarks. I did set up the National Crime Agency and it is doing important work in this area. The new economic crime centre has been set up, and that is an important step in dealing with these issues. We continue to look at the powers that are necessary to deal with money laundering, but we have already introduced new powers that enable us to take action against those involved in these matters.
John Howell (Henley) (Con)
I refer my right hon. Friend to what she said about renewable energy projects in sub-Saharan Africa. How will that support the 30% renewable energy target in Nigeria, a country that cannot provide electricity to half its population?
The Prime Minister
I thank my hon. Friend for pointing that out. The point of the intervention we are making and the money that we are making available is that it will help to leverage private finance. It is through Government working together with private finance that we will be able to ensure that projects can come on board in a number of countries in Africa.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
If the Prime Minister’s Brexit proposals are implemented, the trade deals that she talks about will have to concentrate primarily on services, as opposed to goods. Will she therefore make a commitment to rule out using public services as a bargaining chip?
The Prime Minister
We have always been clear in relation to public services. The economy of the United Kingdom relies significantly on services—it is one of the areas in which we are particularly leading across the world—and I expect that we will be able to ensure that the trade deals that we do around the world incorporate those aspects of services in which we are leading.
Stephen Kerr (Stirling) (Con)
If I might return to the subject of the sixth replenishment of the global fund to continue the fight against HIV/AIDS, tuberculosis and malaria, will my right hon. Friend confirm from her engagement with the US Administration that the United States, currently the biggest donor to the fund, shares her commitment?
The Prime Minister
I am very happy to say that, obviously, as my hon. Friend has said, we restated the commitment to ending HIV/AIDS, tuberculosis and malaria. The G20 is an important venue for doing that and, indeed, in one of his interventions at the summit, President Trump made reference to the need for the work that continues to be done in terms of HIV.
John Woodcock (Barrow and Furness) (Ind)
The Prime Minister understands the supreme importance of cross-border and national security. She also understands how difficult and how long a process it inevitably is to agree and ratify new treaties. Will she level with this House and the public that there is actually very little chance of being able to agree and then fully ratify a new security treaty by the end of the transition period?
The Prime Minister
I have a different opinion from the hon. Gentleman. We have a clear structure within the political declaration in relation to that. I simply say to him that the December joint report on withdrawal was 16 pages. Within less than a year, we have negotiated 585—nearly 590—pages of legal text. The political declaration is, I think, 26 pages. It is perfectly possible to negotiate on all aspects of that within the two years available.
Henry Smith (Crawley) (Con)
Next week, in Marrakesh, a UN conference on migration takes place, yet there are considerable concerns among some G20 and EU member countries—Italy for example—about its provisions. Was that discussed at the G20 summit and what is the position of Her Majesty’s Government on this?
Mr Speaker
Order. This is rather unseemly. I am bound to say that the hon. Member for Crawley (Henry Smith) was entitled to a somewhat more respectful welcome. His constituents were entitled to hear him heard with greater courtesy. Now that the Prime Minister is replying, this great hubbub of voluble and unnecessary noise should cease. Let us hear her reply.
The Prime Minister
Thank you, Mr Speaker.
My hon. Friend is absolutely right. With the launch event of the Global Compact on Migration next week, it is absolutely right that migration is being discussed in a number of forums, including, obviously, the references that we saw in the communiqué that came out of the G20 summit. That Global Compact is one way in which we can bolster international co-operation in these areas, because it does set out an approach to reduce irregular or illegal migration while improving regular and managed migration. It enables all states effectively to manage their borders. This issue is recognised across the G20 as one that needs to be addressed.
Kevin Brennan (Cardiff West) (Lab)
When the Prime Minister met the crown prince of Saudi Arabia, did she discuss with him the 11 exchanges that our American allies said that he had had with the leader of the hit squad who murdered and dismembered Mr Khashoggi at around the time of those events? If so, is she happy still to be described as she was by the leader of the Liberal Democrats as a “candid friend” of the Saudi crown prince?
The Prime Minister
The point that I made to the Saudi crown prince was very simple: everybody needs to be absolutely confident that the Saudi Arabian investigation is full, proper, credible and transparent. We are encouraging Saudi Arabia to ensure that it does that, and I also discussed the nature of the investigations with President Erdoğan.
Matt Warman (Boston and Skegness) (Con)
It is the rise of technology that will change more lives across the G20 than any other factor. Will the Prime Minister restate her commitment to increase our spending on research and development so that we in this country make the most of the opportunities?
The Prime Minister
My hon. Friend is absolutely right. We have a firm commitment as a Government to increase the percentage of GDP being spent on research and development to 2.4%—that is both public and private sector investment. This is the way that we can ensure that we are investing in the jobs of the future.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Today is International Disability Day. With more than 1 billion disabled people worldwide—and that number is set to increase—was the equality and empowerment of disabled people discussed at the G20 and, if not, will the Prime Minister commit to discussing it at a future meeting?
The Prime Minister
What was discussed was the importance of ensuring that economic development benefits all people, including those who currently feel that they are not benefiting from it and obviously including disabled people. A number of events around the margins of the G20 also addressed a number of these issues.
Chris Philp (Croydon South) (Con)
The Prime Minister mentioned in her statement the importance of securing free trade deals around the world, yet some Members of this House are proposing the so-called Norway-plus option—membership of the single market and the EU customs union, most likely with a backstop. Does she agree that that would prevent free trade deals from being done, that we would still be paying money in and that there would be unlimited free movement, and will she join me in saying that would be an extremely bad choice for our country?
The Prime Minister
I am happy to confirm what my hon. Friend has said. That option would indeed mean that we would continue to pay and would have to accept free movement; the Norway-plus model also has the issue of the customs union. We have negotiated a deal that is right for the United Kingdom.
Carol Monaghan (Glasgow North West) (SNP)
I am pleased that the Prime Minister recognises the importance of an equal playing field with respect to trade. Will this also apply to the contract for the fleet solid support ships, and can the Prime Minister assure our UK shipbuilders that foreign Government-sponsored bids will be ruled out?
The Prime Minister
The hon. Lady will be aware that we have developed a national shipbuilding strategy. This is an important step forward that will support shipbuilders around the UK.
Martin Whitfield (East Lothian) (Lab)
By 2030, each girl is guaranteed 12 years of education. Will the Prime Minister confirm the commitment from the G20—and particularly this country—to achieve this target by 2030?
The Prime Minister
We are already one of the countries that is putting significant funds from its international development funding into the whole question of girls’ education, and we will continue to do so.
Withdrawal Agreement: Legal Position
(5 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Attorney General (Mr Geoffrey Cox)
It is very good of the Prime Minister to warm up for me today.
With permission, Mr Speaker, I wish to make a statement to the House. I should make clear the context in which I consider that I am to do so today; my statement is intended to inform the debate that is shortly to commence on the motion to approve the withdrawal agreement and the political declaration on the future relationship concluded with the European Union by my right hon. Friend the Prime Minister.
It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration of the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government. Therefore, my statement today is complemented by a detailed legal commentary, provided for the purpose of the debate and published this morning, that analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them.
There is, of course, no want of other sources of helpful commentary available to the House, and in making this statement in these unusual circumstances and in answering any questions that hon. Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially, and to place such legal expertise as I have at its disposal. The historical precedents strongly support that view. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe that it can or should pass under any misapprehension whatsoever as to the legal matters on which that judgment should be based.
It is important to recall that the matters of law affecting the withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed. In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney General—certainly not this one—can instantly possess the answers to all of the pertinent questions that the skill and ingenuity of hon. Members may devise.
However, I am aware that there are certain parts of the agreement the meaning of which attracts the close and keen interest of the House, and it is to some of these that I now turn: first, the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020 unless, pursuant to article 132 of the agreement, both the UK and the EU agreed to a single extension for a fixed time of up to one or two years. By article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast or Good Friday agreement. The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom and the associated amendment to the Irish constitution to remove its previous territorial claim remain in place.
Once in force, by article 2.1 of the protocol, the parties would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes it. There is a separate but closely related duty on the parties under article 184 to negotiate expeditiously and use best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by article 1.4 of the protocol, it is expressly agreed not to be intended to establish a permanent relationship but to be temporary. That language reflects the fact that article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.
If either party did not comply with its obligations of good faith after the implementation period, it would be open to them to bring a complaint under the dispute settlement provisions set out in articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of that obligation. If the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement, which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions.
There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down. How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.
Under the protocol, the UK would form with the EU a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the EU customs code. Those rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union.
By those means, the need for any hard border would be avoided, and goods originating in Northern Ireland would be entitled to free circulation throughout the EU’s single market. In all other respects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where those were devolved. By article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor—whether situated in the Republic of Ireland or elsewhere in the single market—would not.
I turn to the role of Union law and the CJEU under the withdrawal agreement and within the dispute settlement provisions. It is important to place these provisions in the context of the objectives of the agreement, which is the orderly exit of the UK from the EU for our citizens and businesses. To that end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects, where it is necessary or desirable for legal certainty to do so.
Although we will legally leave the EU and cease to be a member state on 29 March 2019, part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming. During that implementation period, so as to give the time, predictability and continuity that is needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before.
But on the conclusion of that period, on 31 December 2020, that will come to an end. Thereafter, Union law and the Court of Justice will possess a relevance in the United Kingdom only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states and of EU citizens in the United Kingdom are created and defined by Union law. If they are to be preserved in equal measure and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of those particular groups of people must continue to be defined by reference to that law. Those rights are provided for in part 2 of the agreement.
Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the United Kingdom will look to the UK independent monitoring authority set up under article 159 and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the CJEU where the determination of such a question is necessary to resolve a dispute.
Instead, pursuant to article 158, the UK courts, for a fixed period of eight years only, may refer—I repeat, may refer—to the CJEU a question of interpretation of part 2 of the agreement in the interests of achieving consistency in the enforcement of the rights of citizens while the new system is established. After that time, our courts will, pursuant to article 4.5, continue to interpret concepts and provisions of Union law in the areas in which the agreement applies it as they always have, and to have due regard to relevant post-implementation case law where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.
Part 3 deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period, and to which Union law and the role of institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court an alleged breach of an obligation incurred prior to the end of the implementation period.
Part 5 deals with our agreed financial obligations. It provides, under article 160, for Union law and the jurisdiction of the Court to apply beyond the implementation period only for the time and purpose of closing out the UK’s financial obligations and entitlements incurred under Union law, again prior to the end of that period.
All these are inherently time-limited functions, and once they are at an end the Court will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom. A dispute between the EU and the UK about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel in which the Court has no automatic role, but if the panel needs to and a question of interpretation of Union law is relevant to the dispute, it can ask the Court to resolve that question. It is then for the panel to apply that interpretation to the facts of the dispute, and thus decide how the dispute should be resolved.
The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. The gradual loosening and removal of the legal ties that have bound us to the European Union for 45 years will take time to work out. This agreement and the European Union (Withdrawal) Act 2018, already passed by the House, allow for the necessary time and legal means for that process to unfold in a peaceful and orderly way.
I am at the disposal of the House to answer questions, in so far as I can, on these and other legal matters. I commend this statement to the House.
Nick Thomas-Symonds (Torfaen) (Lab)
I am of course grateful to the Attorney General for his statement, and for advance sight of it, but all Members who are asking questions are at a major disadvantage, because they have not read the legal advice on which the statement is based. That is totally unacceptable when aspects of the Attorney General’s advice have been selectively leaked to the press over the weekend. For example, it has been reported that in a letter to Cabinet Ministers last month, the Attorney General said, in respect of the backstop arrangement,
“The protocol would endure indefinitely”
if trade talks broke down. In his statement, the Attorney General talked about political factors that might, in his view, make the backstop temporary, but in reality, that is not the legal position. Perhaps he can confirm that the legal position is as set out in the letter—that the protocol will “endure indefinitely” if the trade talks break down.
On 13 November in this House, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer)—the shadow Brexit Secretary—and I were very clear on what was being sought: the final, full advice provided by the Attorney General to the Cabinet on any completed withdrawal agreement should be made available to all MPs in good time for the vote on the deal. Offers short of that, including of the Attorney General’s statement today and of a summary made by the Government, were rejected, and the House unanimously passed a motion to that effect. [Interruption.] “Playing games,” shouts the Chancellor. On 13 November, the Conservative party could not get one of its MPs to vote against the motion—not one.
The document that has been produced is, in the Attorney General’s own words, a legal commentary, produced with his oversight and approval. It is not the final legal advice to the Cabinet. Frankly, the explainer produced alongside the withdrawal agreement was longer and more detailed than this document. Is not the reality that the Government do not want MPs to see the full legal advice, for fear of the political consequences?
There is no point whatever in trying to hide behind the Law Officers’ convention. The ministerial code and “Erskine May” are very clear: Ministers have the discretion, under that convention, to make advice available in exceptional circumstances. What circumstances could be more exceptional than these? The economic, political and constitutional integrity of our country is at stake.
I quote paragraph 82 of the legal commentary:
“The Agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law…to withdraw from the Agreement unilaterally.”
A straight question to the Attorney General: can he direct me or the House to any other international treaty to which the UK is party that it has no unilateral right to terminate? Can he even name one?
Furthermore, articles 1.4 and 2.1 of the backstop protocol are clear that its provisions
“shall apply unless…they are superseded, in whole or in part, by a subsequent agreement.”
[Interruption.] No, the “in whole or in part” bit was not commented on in the statement, actually. Put simply, that means that parts of the backstop could become permanent, even in the event of a trade deal being agreed. I ask the Attorney General directly: what is his view on which parts of the backstop arrangement in this protocol are most likely to become permanent?
May I raise with the Attorney General the issue of the impact on the Good Friday agreement? Page 306 of the withdrawal agreement refers to the need for the protocol to be implemented so as to
“maintain the necessary conditions for continued North-South cooperation,”
including the conditions for possible new arrangements in accordance with the 1998 agreement. So can the Attorney General tell the House, in his view: first, which new arrangements he believes would be in accordance with the 1998 Good Friday agreement; and, secondly, which arrangements he believes would not be in accordance with it?
In the first instance, it will be for you, Mr Speaker, to rule on whether there has been an arguable case of contempt for what we on the Opposition Benches believe to be a failure to comply with the motion of 13 November. For the sake of our economy, our jobs and our futures, all possible information should be made available to Members of this House. The Government should do the right thing and make the full advice available. With so much at stake for all our constituents and with eight days to go before the vote on the deal, this House and this country deserve better from this Government.
The Attorney General
First, let me say that the hon. Gentleman has far better than any advice I may or may not have given to the Government: he can ask me. All he has to do is ask and he will receive, because I will give him a frank answer. [Interruption.]
Mr Speaker
Order. I know the Attorney General is very well able to—[Interruption.] Order. Members must calm themselves. I know the Attorney General is very well able to look after himself, but I simply and gently counsel Members—gently, at this stage—not to yell from a sedentary position in that way. The right hon. and learned Gentleman would not, I am sure, be accustomed to such treatment in a court. If he were subject to it, I think the judge would take a very dim view. [Interruption.] Order. He is entitled to a courteous reception. As the House knows from experience, I will want to hear everyone who wishes to question him. But in the first instance, be calm and behave.
The Attorney General
It is very rare for the Attorney General to appear to answer questions in the House on matters of law. I am doing so, so that Opposition and Government Members can have a full, frank and thorough opportunity to ask me, as the Government’s chief legal adviser and as an adviser to the House on constitutional and legal matters, what our legal position is. I assure the House that if questions are asked, I shall answer them candidly.
The hon. Gentleman told me that I had not said anything about the subsistence of the Northern Ireland protocol. Let me make no bones about the Northern Ireland protocol: it will subsist. We are indefinitely committed to it if it comes into force. There is no point in my trying or the Government trying to disguise that fact. The truth, however, is this: what is the political imperative of either entering into it or not entering into it? That is a calculated equation of risk that each Member of this House is going to have to weigh up, and do so against different alternatives.
The hon. Gentleman also mentioned that I should answer whether other treaties are permanent. Hundreds of treaties throughout the world are permanent—treaties on borders, treaties on rivers; the Vienna convention has entire sections on permanent treaties. If the hon. Gentleman wants me to enumerate some, I will write to him with them—I am afraid I do not have them to hand. There is an entire section of the Vienna convention on permanent treaties. The question whether we have a right to terminate under the convention is a matter of construction. Let me make it plain: there is no such right to terminate if the Northern Ireland protocol comes into force. The question of how likely it is to remain in force is a political judgment to be based on factors largely relating, as I have said, to in whose interests it would be to remain in it for longest. [Interruption.]
Mr Speaker
I call Mr Kenneth Clarke—[Interruption.] Order. It is rather unseemly for people to yell out, “Is that it?” The Attorney General, to be fair, has given a very full response—[Interruption.] Order. Members can make of it what they will, but in any case, everybody should cheer up now, because we are about to hear from the Father of the House.
Mr Kenneth Clarke (Rushcliffe) (Con)
Whether that will cheer people up or not, I have no idea.
First, I sincerely congratulate my right hon. and learned Friend the Attorney General on his masterly exposition of the facts and the law, which put paid to quite a lot of the paranoia and conspiracy theories that have been running around all too often in our European debate.
Secondly, does my right hon. and learned Friend accept that it was central to the Good Friday agreement—the Belfast agreement—that both sides committed themselves timelessly to an open border, and that will be all wrapped up if we ever move to the Northern Ireland protocol? It would be quite shameful if the European Union, the Republic of Ireland or the United Kingdom were given the right unilaterally to terminate that arrangement at a time of their political choosing, so this is perfectly sensible. Does he also agree that both the United Kingdom and the European Union will have reasons to hesitate before going into the protocol—they may prefer to extend the transition agreement—and that neither of the parties will have any political motive for staying indefinitely in that protocol?
In his exposition, I think my right hon. and learned Friend has done what he was trying to do: got rid of all these theories about the ECJ still being involved, as it obviously will have to be, in the rights of British citizens after we leave, and enabled the House to get back to the real political debate that we have to have in the next few days.
The Attorney General
I am most grateful to my right hon. and learned Friend for his question. The truth of the matter is that the Northern Ireland protocol would represent a solemn commitment to the people of Northern Ireland that this Government will honour and respect the Belfast agreement. I make no bones about it: I would have preferred to have seen a unilateral right of termination in the backstop. I would have preferred to have seen a clause that allowed us to exit if negotiations had broken down irretrievably, but I am prepared to lend my support to this agreement because I do not believe—[Interruption.] I am most grateful for those cheers of applause. I do not believe that we are likely to be entrapped in the backstop permanently. I can give reasons why I say that, but my right hon. and learned Friend has foreshadowed them. So I agree with him: this represents a sensible compromise. It has unattractive and unsatisfactory elements for us, but it is for the House to weigh it up against the potential alternatives and to assess whether it amounts to a calculated risk that this Government and this House should take in these circumstances, weighed up against the realities of the alternatives.
Joanna Cherry (Edinburgh South West) (SNP)
The binding motion passed by this House on 13 November ordered the production of any legal advice in full, including that provided by the Attorney General, and with a particular focus on the Northern Ireland backstop—not a commentary, but the legal advice in full. The House did not divide. The Government effectively conceded that these were exceptional circumstances and that the normal, very important convention would not apply, so that ship has sailed.
The Attorney General and I are both senior lawyers in our own jurisdictions, so I am sure that he will not want to insult my intelligence or that of the House by pretending that this Command Paper reflects in any way the nuanced advice that he will have given to the Cabinet, focused on particular questions such as those that we saw leaked over the weekend. For example, he just said that it is not his belief that we will be trapped in the backstop permanently, but this House, which has to take the final decision—not the Cabinet—is not interested in his belief; it is interested in his legal opinion. Can he confirm, as a matter of law, that there is nothing to prevent the backstop from becoming the permanent UK-EU relationship in the event that the two sides cannot agree a future economic relationship? That is a matter of law.
Will the Attorney General acknowledge something else? He is a democrat, the Government are democrats; they have gone on incessantly about the will of the people for the last two years and profess to believe in parliamentary sovereignty. We sitting in this House are the representatives of the people, and we voted to see his advice in full, not his commentary, so will he undertake to produce that advice—the sort of nuggets that were leaked over the weekend, but in full—before the rise of the House today, and before tomorrow’s debate, or is he prepared to run the risk of being found in contempt of Parliament merely to protect the Conservative and Unionist party against further internal strife?
The Attorney General
I have the greatest respect for the hon. and learned Lady. She has put her case rationally and reasonably, and I will deal with her points one by one. She asked whether there was anything to prevent the protocol from becoming permanent in the event of no agreement. As a matter of international law, no there is not—it would endure indefinitely, pending a future agreement being arranged—but that does not exhaust all the matters of law. As a matter of EU law, it would, in those circumstances, be highly vulnerable to legal challenge. It is widely accepted, including by the EU Commission and taskforce 50, that article 50 is not a sound legal foundation for permanent arrangements between states. If negotiations irretrievably broke down, the protocol would de facto become permanent and therefore seriously challengeable in the Court of Justice of the European Union for being invalid. That legal uncertainty by itself is sufficient to promote to the EU the need to do a deal with us. It would be profoundly detrimental to thousands—indeed millions—of traders throughout the single market. That is one factor that convinces me that this is a risk worth taking.
Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)
I start by welcoming without reservation my right hon. and learned Friend to his position. He knows that I have believed for many years that he should have filled this post.
I welcome my right hon. and learned Friend’s statement. Page 6 of his document refers to what is defined as “good faith”. He mentioned the International Court of Justice, so I hope he will not mind if I quote from one of its judgments referenced in footnote 8. He talked about how long the backstop should last and what defined “good faith”. The judgment states that
“the failure of the Parties to reach agreement, 16 years after the conclusion of”—
earlier negotiations—
“does not itself establish that either Party has breached its obligation to negotiate in good faith.”
As my right hon. and learned Friend knows, his right hon. Friends on the Front Bench one by one have used good faith as their defence for being locked into this problem of the backstop and as their explanation of how we will get out. As a matter of law, is good faith required for best endeavours?
The Attorney General
The duty of good faith and to use best endeavours is a legally enforceable duty. There is no doubt that it is difficult to prove—[Interruption]—as I hear from a sedentary position, but that is not to say that it has not been proven. The case reports of the International Court of Justice, as well as arbitral tribunals throughout the world, have recorded decisions where tribunals have found breaches of good faith duties. There would need to be clear and convincing evidence that the breakdown of communication was due to bad faith—I fully accept that—but if the EU refused to engage with us, strung out negotiations in a thoroughly unreasonable way or failed to observe reasonable time limits, those would be hallmarks of a possible case of breach of good faith. It is a meaningful legal obligation.
I remind the House that we are dealing here with the United Kingdom on one hand and the European Union on the other. Their reputations in international forums, and their reputations as a question of international law, are at stake. If you put your name to a solemn legal obligation to negotiate something in good faith within a certain time limit, it is a very serious obligation of which to acquit yourself: it cannot just be played fast and loose with.
Nigel Dodds (Belfast North) (DUP)
As the right hon. and learned Gentleman knows, I have the utmost and deepest respect for him in relation to his approach to these issues and the discussions that we have had, but he has said himself that the whole business is deeply unsatisfactory and unattractive, which makes me wonder why he is recommending the agreement. It seems to me that we are now reliant on our learned friends to take cases in international courts, rather than this sovereign Parliament being able to decide when we can get out of these backstop arrangements.
Can the Attorney General confirm what he said—that this is an indefinite arrangement that can be permanent in law, despite what some of his Cabinet colleagues are saying? I do not have time to go into all this, because, as other Members have said, we need to see the actual legal advice as requested by the House—that must happen—but can he also confirm that under article 15 of the Northern Ireland protocol, the Northern Ireland customs arrangements mean that Northern Ireland will form part of the EU customs territory and not the United Kingdom’s, although “a single customs territory” is established between the UK and the EU? Will he confirm that under article 4 of the protocol, there is a new right under international law—one that is not in the Belfast agreement of 1998—for the EU to oversee certain aspects of the implementation of that 1998 agreement?
I have added those detailed points, which I will follow up with the Attorney General in later discussions, but the overall context is, as he has said, a deeply unattractive, unsatisfactory agreement. Rather than recommending it, he needs to recommend that it be rejected.
The Attorney General
The right hon. Gentleman has thrown down the gauntlet in asking me to re-examine my support for the agreement. I do not mind confessing to him that I have wrestled with this question, because I am a Unionist and dislike any divergence between Northern Ireland and the rest of the United Kingdom; but I have had also to take into account first that this is an arrangement that we can avoid, and secondly that if we were in it, it would be as much an instrument of pain to the European Union as it would be to the United Kingdom.
I ask the right hon. Gentleman to think of what the European Union is now accepting. It accepts that Northern Ireland can have free circulation of its goods not only into the single market, but to Great Britain. No other single market trader will have that advantage. Hundreds of single market traders throughout the European Union are going to resent the fact that the goods of a Northern Ireland business situated one mile north of the border can flow smoothly into the single market and smoothly into Great Britain, while theirs cannot. So there are real reasons, which the right hon. Gentleman and I can discuss at greater length, why I do not believe that this will become a permanent solution.
Let us suppose, however, that those negotiations broke down or took an unreasonable length of time. All around the European Union there will be single market traders seeing the benefits that Northern Ireland can have, who will be induced by those benefits to ask, “Should we go on putting up with this uncompetitive arrangement?” And what are they likely to do? Why, they are likely to beat a path to the door of the Commission and the Court, and there to say, “Didn’t you say that article 50 is not a sound legal foundation for this arrangement?” And I tell you frankly, Mr Speaker, they are likely to win.
Sir William Cash (Stone) (Con)
On the issue of precedents, there are five—[Interruption.]
Mr Speaker
Order. I understand that the House is mildly animated, but we must hear what the Chair of the European Scrutiny Committee wants to say.
Sir William Cash
Thank you, Mr Speaker.
There are five precedents over the past 40 years of full disclosure being made of an Attorney General’s advice for compelling and exceptional reasons in the public interest. Does my right hon. and learned Friend agree that he can—as in my view he should—consent on his own independent account as Attorney General under the ministerial code to the full publication of his legal advice given that, as cited in the Queen’s bench division in July 2009, the then Attorney General’s advice on the seminal Factortame case was disclosed, which dealt with the incompatibility of the European Communities Act 1972 with an Act of Parliament, the Merchant Shipping Act 1988, which was then struck down in the courts, analogous to the legal status of the withdrawal treaty in relation to the European Union (Withdrawal) Act passed by this House in 2018, and with which that treaty is incompatible?
The Attorney General
This is not a question of the lawfulness of the Government’s action, as it was in the publication of Lord Goldsmith’s advice; this is simply a view on the legal effects of a particular agreement. There are hundreds of lawyers throughout the United Kingdom, I am delighted to say, who could offer a perfectly competent view on this agreement. I cannot see why there is anything exceptional about the current circumstances and about my advice. But let us suppose there were something exceptional about my advice; well, I am here to be asked any question that the Government have also asked, so all that right hon. and hon. Opposition Members have to do is ask and I will give them a frank answer.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
Will the right hon. and learned Gentleman acknowledge frankly to this House that publishing this paper on the legal position on the withdrawal agreement and his statement to the House today does not represent compliance with the motion of this House that was passed unanimously on 13 November, and does that not represent the following fundamental point of constitutional principle? It would be serious for any Minister to resist a motion of the House, but it is more so for it to be the Attorney General, going along with Government defiance of the House, when his very office is about our constitution—when he is the person in government whose job it is to make sure the rest of them stay within the rules. How can he do that if he himself is acquiescing in breaking them? He has in his statement rightly acknowledged that he has a duty to this House as well as to the Government and that his duties involve giving legal advice to the House. It is in our Standing Orders that he is legal adviser to the Privileges Committee. So how can we have a situation where the Attorney General allows the Government to openly defy the will of the House? The Government have a choice: they can either comply with the motion of the House or seek to change it, but they cannot remain in defiance of it. It is the Attorney General’s responsibility to tell them that; will he?
The Attorney General
I am grateful to the right hon. and learned Lady for that question. The truth is that I am caught in an acute clash of constitutional principle. A Minister is obliged to have regard to the public interest and the national interest. Let us suppose I had given any such advice that has been requested by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and let us suppose that that advice had covered all sorts of matters, including our relationships with foreign states and including arguments that might be deployed in the future—and their strengths and weaknesses—and including matters of acute importance to this country; would it be right for the Attorney General, regardless of the harm to the public interest, to divulge his opinion? I say to the right hon. and learned Lady that it would not. There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do. She knows what I mean. Therefore, I cannot take a step that I firmly and truly believe would be contrary to the public interest. I ask the House to understand that it is only that consideration that is motivating me and this Government in declining at this stage to break the convention that applies to both sides of the House when they are in government. There is nothing to see here. [Interruption.]
Mr Speaker
Order. I gently appeal to colleagues to lower the decibel level. You do not have to look into—[Interruption.] Order, Mr Russell-Moyle. You do not have to look into the crystal ball when you can read the book. The evidence is that I always call colleagues to ask questions, and the Attorney General has indicated his readiness to take those questions, as indeed he must. So you will all get a chance, but please let the answers be heard.
The Attorney General
I ask the right hon. and learned Lady to accept that I will give this House a stark, uncompromising and completely frank view on any relevant point of law. I suggest that, if I had given advice, there would be no real significance in that advice being disclosed, because this House has the opportunity to ask me directly.
Mr Dominic Grieve (Beaconsfield) (Con)
My right hon. and learned Friend is to be commended for his statement and for the document that has been produced, which I have to say from my own experience is rather fuller than any advice he might ever have been called upon to produce. First, it might be helpful to the House if he took this opportunity to confirm that there is nothing in this document that is incompatible with any advice that he gave to the Government? I would not expect him to be in a position to endorse any such document if it were at variance in that way. Secondly, turning away from that first principle to the content, might he also wish to comment on the provisions specific to Northern Ireland in paragraphs 25 to 29, which appear to show quite clearly that under the protocol it would be possible to end up with a situation in which there were in fact checks and controls on good passing between Northern Ireland and the rest of Great Britain?
The Attorney General
I am grateful to my right hon. and learned Friend. He will understand that if I were to make that express confirmation, I would by that means be disclosing what advice, if any, I had given. I hope that the House will understand—unless it is to be supposed that I would tailor my advice according to my audience, which I assure the House I would not do—that there is no matter on which hon. Members could ask me a question on which I am likely to have given a different answer to any other party who might have asked me about it in the course of these negotiations. In all candour, therefore, I can say that all the House has to do is ask.
In relation to my right hon. and learned Friend’s second question, it is true that there would be regulatory divergences—as there are within sovereign states throughout the world—between one part of the sovereign territory of the United Kingdom and another, but those divergences could be kept to a minimum. They involve, on my investigation, some 15 forms of product in respect of which checks might have to be carried out at the border. Those 15 forms of product are largely phytosanitary goods in respect of which checks are already carried out in many cases at the ports of Northern Ireland. Therefore, while that border would exist—I find that distasteful myself—the issues are nevertheless mitigable, and the question again is whether that feature should lead us to decline this deal, which I firmly believe is the best way of ensuring that we leave the European Union on 29 March. That is the solemn responsibility that this side of the House—and some on the Opposition side—believed that we had. This is the deal that will ensure that that happens in an orderly way and with legal certainty.
Hilary Benn (Leeds Central) (Lab)
I say to the right hon. and learned Gentleman that there is something to see here. If the Government can decide which votes of the House of Commons to respect and which to ignore—as you said when ruling on a point of order on 13 November, Mr Speaker, it was not the opinion of the House of Commons that it wanted the full legal advice to be released, but the will—what does democracy mean in this place?
Now, I have a question for the Attorney General on which I want his legal advice. As he will be aware, the withdrawal agreement is legally binding, but the political declaration is not. Can he draw to the House’s attention a single example in international law of when a failure to act in good faith has successfully compelled one party in a negotiation to reach an agreement as extensive as the one that the Government hope to achieve and that is set out in the political declaration covering trade in goods and services, security, foreign policy, broadcasting, data and co-operation on a wide range of matters? If there is such an example, I would very much like to hear about it.
The Attorney General
The right hon. Gentleman points out that we are in a unique situation. There has never been a case in which a country has seceded from the European Union, and there has never been a case in which 45 years of legal integration of a state the size of the United Kingdom has been untangled. That will take time, and it must be done in an orderly way. I will write to the right hon. Gentleman if there are any specific examples to assist me, but the fact of the matter is that I doubt it, which is the frank answer, because we are in this extraordinary and unique situation.
To address the first part of the right hon. Gentleman’s question, I will repeat myself: what does he expect us to do? When he was a member of the Cabinet, if he believed that to take an action would be fundamentally contrary to the public interest of this country, I suspect that he would find that a difficult situation to resolve. The House’s resolution is entitled to the greatest of respect, and the Government and I are inclined to do as much as we can and to go as far as we can, which is why I have come to the House today—it has barely happened more than a few times in the past 50 or so years—to answer the House’s questions. However, I cannot take a step that I believe in conscience would be against the public interest and potentially seriously harmful to a fundamental constitutional principle and the temporal interests of this country in the midst of a negotiation.
Dominic Raab (Esher and Walton) (Con)
I welcome the Attorney General’s transparency both in his oral statement to the House and in the Command Paper. First, will he confirm that the article 20 review mechanism necessitates that the EU agrees to the UK exiting the backstop even if the negotiations have dragged on for many years or, indeed, have broken down? Secondly, while the article 50 basis for the backstop is meant to be temporary, it might well take some 10 years for it to be struck down by the European Court of Justice. If he thinks that that is too long, will he give the House his best estimate?
The Attorney General
Article 20 permits both sides to consider, even when no final agreement has yet been reached, whether alternative arrangements might suffice to protect the stated objectives of the Northern Ireland protocol. If they do, both sides could agree to put in place those alternative arrangements before any final agreement had been reached.
It is important to remember that, when one says final agreement, it is of course possible, indeed likely, that it may be a series of agreements reached at different times. My answer to my right hon. Friend is that article 20 creates that ability, but it is not a unilateral right of termination. It does not give us a right to walk away. It creates a procedure and obliges the European Union to consider alternative arrangements that are not part of a final deal.
I think my right hon. Friend went on to ask me about article 50 and the time it might take. The period of years he mentions is probably far too long, but it is impossible to say. What one can say is that, long before any case is brought, the pressure bringing those cases to the Court would be telling upon the Governments of the member states and upon the European Union. The legal uncertainty would be intense, and it is a real factor that this House must weigh up in considering whether the protocol is something that it wishes to support.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I am trying to understand the Attorney General’s arguments in answer to earlier questions. He seems to be saying that the Northern Ireland protocol, including the close relationship with the single market and membership of the single customs territory, is such a good deal for UK businesses that EU member states would hate it and would be desperate to bring it to an end as soon as possible. Is that his view? Is that the Government’s view? If so, is he now arguing for us to stay in a single customs territory indefinitely and to keep a close relationship with the single market?
The Attorney General
What I do say is that the customs arrangement under the backstop produces the following advantages. We pay not a penny and our goods have free access, in fiscal and tariff terms, to the European Union, yet the regulatory framework that we have to observe is dealt with by way of non-regression clauses that are not enforceable either by the EU institutions or by the arbitration arrangements under the withdrawal agreement. They are policed solely by British courts and British authorities.
In those circumstances, what does it mean? It means that they have split the four freedoms. They have created a situation where we can have the regulatory flexibility that they cannot. They have granted access to the single market for no contribution, without free movement, without signing up to the common fisheries policy and without signing up to the common agricultural policy. For all those reasons, what I say to the right hon. Lady is that if it is painful to us, it will be as painful to them. Where we want to end up is an arrangement that suits us both. This suits neither.
Sir Michael Fallon (Sevenoaks) (Con)
With regard to the Northern Ireland protocol and paragraph 11 of the Attorney General’s helpful annex, will he advise us on what might constitute “a clear basis,” as he puts it, for a finding of a breach of duty of good faith?
The Attorney General
Evidence of wilful intransigence, evidence of refusal to engage, evidence of refusal to entertain alternative proposals or alternative means of achieving the outcomes that both share: that type of evidence, cumulatively, could amount to a case of bad faith, but each situation is facts-specific. It is not possible to identify beforehand, but those are the kinds of things that would be relevant.
Kate Hoey (Vauxhall) (Lab)
The Attorney General has been very honest about the downside of this backstop, and that is even without the legal advice, so we dread what we would actually see in the legal advice, if we could see it.
On Sunday, the Secretary of State for Northern Ireland told Northern Ireland’s “Inside Politics” with Mark Davenport that even if the backstop kicks in, Great Britain will stick to the same rules as Northern Ireland. Will the Attorney General have a word with her? She is going around Northern Ireland on a tour and saying some things that are actually not accurate, giving the people of Northern Ireland a very wrong impression about what this agreement means.
The Attorney General
The regulatory regime in Great Britain will be a matter entirely for the Government of the United Kingdom. It is permitted and agreed under the protocol that they can maintain their regulatory regime in the way they choose, in which case they could choose to maintain, as I have no doubt they would wish to do, regulatory parity with the position in Northern Ireland. That is all the Secretary of State is saying, and I see nothing controversial in that.
Sir Oliver Heald (North East Hertfordshire) (Con)
I commend my right hon. and learned Friend on the statement he has made. Does he agree that in international law concepts of good faith and of using one’s best endeavours are very important, because right at the heart of international law is the idea of a rules-based system that good countries aspire to? Does he agree that it is therefore important both to the UK and to the EU that they should show good faith and should use their best endeavours? Does he also agree that if they did not do so when it came to the point that has just been raised by my right hon. Friend the Member for Sevenoaks (Sir Michael Fallon) about paragraph 11 in the references to the protocol, it would be an absolute disaster for either the UK or the EU to be found not to be in good faith?
The Attorney General
I do agree with that; the duty of good faith is a very solemn, well-understood one in international law. It would be an astonishing thing if the EU were not to negotiate in good faith, particularly after the act of good faith that this country, in concluding this agreement, will have committed itself to. So this is not something that can simply be ignored, but I fully accept that it is not a unilateral right of termination and it would not be easy to establish “bad faith” against an organisation of the type of the EU. It would never happen, because I do not believe that the European Union would descend to the kind of behaviour necessary for a bad faith claim to be brought successfully.
Helen Goodman (Bishop Auckland) (Lab)
On 13 November, did the Attorney General advise the Chief Whip that Government Ministers should vote against the motion—and if not, why not?
The Attorney General
I only wish I had the influence that the hon. Lady believes I have. I did not advise the Chief Whip, and I do not suppose he would have taken the advice even if I had given it.
Dr Julian Lewis (New Forest East) (Con)
I am about to attempt to achieve the ambition of a lifetime and get a one-word answer out of a lawyer. Is it possible that the UK could find itself locked in backstop forever, against our will?
Frank Field (Birkenhead) (Ind)
Does the Attorney General agree that a motion such as the one I have tabled on the Order Paper would give this House sovereignty on when we should leave the backstop, should we enter it, and that as a country we would have a degree of certainty, which he has been able to supply today? If the Government go down in defeat next week, would he suggest that that should be top of the Prime Minister’s negotiating list with the European Union?
The Attorney General
I have enormous respect for the right hon. Gentleman and his suggestion, and I realise that other right hon. and hon. Members are considering similar things. I simply say this: what we cannot do is anything that is incompatible with our obligations under the withdrawal agreement. Any amendment to the meaningful vote that would introduce a qualification to our obligations under the agreement would be likely to be viewed by the European Union as a failure to ratify it and would justify non-ratification on its part.
The Attorney General
We will be plunged into such great chaotic disorder in the circumstances that the right hon. Gentleman suggests that I very much hope the House will think and reflect carefully before doing that.
Mr David Jones (Clwyd West) (Con)
My right hon. and learned Friend has pointed out that the best-endeavours clauses in the withdrawal agreement impose a duty on both sides to proceed with the utmost good faith in seeking to achieve an agreement at some time in the future. He has said also that these are obligations that are judiciable and enforceable. As a practical lawyer advising the House, as he has kindly offered to do, will he tell the House whether this is a matter about which the House should be relaxed? Or should we proceed at our peril?
The Attorney General
As my right hon. Friend knows, the job of any lawyer for any client is generally to assist the client to make decisions as to the balance of risk in any decision that they are about to take. There is no question but that the absence of a right of termination of the backstop presents a legal risk. The question whether it is one this House should take is a matter of political and policy judgment that each one of us must grapple with. The House has heard and, for reasons that I am not going here to expatiate upon, I have taken the view that compared with the other courses available to the House, this one is a reasonable, calculated risk to take. Other Members of this House must weigh it up, but that is my view.
Maria Eagle (Garston and Halewood) (Lab)
In response to some questions from Members of this House today, the Attorney General has asserted that in his view it would not be in the public interest to meet the terms of an effective resolution that was passed unanimously by this House. Can the Attorney General really take that view? Was it not incumbent upon him and the Government to vote against that resolution if he thought that it would be against the public interest to publish his advice, as he has asserted today?
The Attorney General
I fully understand the hon. Lady’s understandable indignation, because the truth is that we are now in a curious situation in which no vote was passed against that motion. I ask her to reflect on this: let us suppose that the Government had voted against it and lost. What position would that place us in? It would place me in exactly—[Interruption.]
Mr Speaker
Order. The hon. Member for Bishop Auckland (Helen Goodman) has already asked her question, with considerable force and alacrity. She is now not only inclined to chunter from a sedentary position but seems to be laughing and in a state of some uncontrollable mirth. I advise her to control herself.
The Attorney General
If the vote had been lost instead, precisely the same position would pertain, which is that the Attorney General and the Government would be faced with a clash of constitutional principle. Of course the Government wish to do all they can, which is why I am here today to answer as candidly and frankly as possible the questions of the House on any matter about which it wishes to ask, but if I am satisfied and convinced that any disclosure of the kind the House has asked for would be contrary to the national interest, I cannot comply with the House’s request. I urge the House to understand that I am doing everything I can, as are the Government, to fulfil the spirit of the request. No matter upon which this House inquires will be dressed up, disguised or in any way downplayed. Nothing—nothing—will be held back.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
My right hon. and learned Friend has been enormously gracious in being willing to answer any question the House may have on legal matters, and there are many questions that we all have to ask that may not be easy to put in one short question, but unfortunately he does not answer the basic point about denying a motion passed by this House. Saying that in his view it is not in the national interest is not good enough. When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority. I therefore urge my right hon. and learned Friend, in spite of his generosity in answering questions, to go back and release the advice asked for by this House.
The Attorney General
Well, of course, when a request comes from the quarter from which it has just come, I will always want to re-examine the assumptions that I have made, but I have to say to my hon. Friend that the problem here is that it cannot be right that the House, by means of such a motion, has the power, blind, to call for any matter that has been discussed in connection with the Government of this country. Where does it end? [Interruption.] Just wait a minute. I am trying to do my best. Where do the limits of this power end? Does it extend to Cabinet minutes? Does it extend to the papers of the secret intelligence service? Is the House, by means of this motion, to command any paper of any kind, central to the interests of this nation, without even being able to check that, by its release, it is causing, or might cause, severe damage to the public interest? I invite my hon. Friend to consider the implications of the absolute rule that he is talking about. It cannot be right and if one looks at previous versions—[Interruption.] If one looks at previous versions of “Erskine May”, one sees that the motion to return is confined to documents of public and official character. If there are good reasons of public policy why those papers should not be disclosed, then the House will either withdraw or rescind its motion.
In this case, I am convinced that to disclose any advice that might have been given would be fundamentally contrary to the interests of this country. [Interruption.] I say to Labour Members that there is no use baying and shouting. What I am trying to do is guard the public interest—that is all. It is time that they grew up and got real. If there were a single item that I thought might be politically embarrassing, I would have no truck with the idea that this advice or any that I might have been given should be disclosed. It is because the public interest is at stake. What part of that proposition is the Labour party incapable of understanding?
Caroline Lucas (Brighton, Pavilion) (Green)
At stake today are really serious issues and yet this House is descending into farce and into some kind of amateur dramatics. This is serious stuff—[Interruption].
Mr Speaker
Order. Mr Chalk, you are a most cerebral and ordinarily a most genial individual and you also practise—or have done—in the courts as a barrister in, I am sure, a most dignified and respectful manner. [Interruption.] Order. This is a serious point. Just as the Attorney General is entitled to be treated with respect, every Member of this House—[Interruption.] Order. It will go on for as long as it takes; I could not care less. Every Member of this House is entitled to be treated with respect in this matter and the hon. Member for Brighton, Pavilion (Caroline Lucas) will be heard. The Attorney General talked about braying and shouting—[Interruption.] Order. He was justified in complaining about being subject to braying and shouting —a point that I have already made. The same goes for Members responding to the hon. Lady. She will be heard. What part of that proposition do some people not understand?
Caroline Lucas
Thank you, Mr Speaker.
I was just saying that these proceedings are in danger of descending into farce. The Attorney General repeatedly says that he will subject himself to what he calls full, frank and thorough questioning, but he knows as well as we do that our capacity to do that questioning is seriously undermined by the fact that we do not have the full legal advice in front of us in order to interrogate it. He talks about the national interest. It is precisely because these are issues of national interest that we wish to see the full legal advice. Will he go away and look again at the principle that, in exceptional times, transparency should take precedence, and therefore produce the full legal advice for this House?
The Attorney General
In all earnestness, when I gave my statement the hon. Lady will have noticed that I said that the House must understand the process by which the Law Officers give their advice. There may be no such “full legal advice”. Law Officers are consulted ad hoc, on the hoof, in fast-developing circumstances. That is what I said at the beginning of the statement. The fact of the matter is that I am here to answer the hon. Lady’s questions. [Interruption.] Well, then I will see the hon. Lady at any time and at her convenience, when she can ask me any question.
I cannot breach the constitutional convention to a client—in this case, the Government—particularly if I believe, as I do with all candour and sincerity, that it would be contrary to the national interest in the course of a negotiation that might involve discussions about strengths, weaknesses and future strategies. [Interruption.] There was a sedentary comment from the Opposition; this is not arrogance. I wish that I could comply with the request of this House, but if I did, I sincerely believe that it would not be in all our interests. In a court, that matter can be resolved by a judge, but in the procedures of this House—it may very well be that we need to look at those procedures—there is no such arbiter. Therefore, although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.
Sir Desmond Swayne (New Forest West) (Con)
The backstop is in the agreement at the insistence of the EU, and it affords the EU a huge advantage and leverage when it comes to our determination never to be in it when we negotiate the future arrangements, does it not?
The Attorney General
The answer is no. If anything, the leverage is in the opposite direction. The French, the Belgians and the Dutch all want access to our coastal waters, but this is outside the backstop’s purview. Therefore, they will want access and we will have to negotiate. We do not have to pay a penny. It is legally uncertain. We have regulatory flexibility in Great Britain. Northern Ireland has free circulation of its goods both to GB and the European Union. My right hon. Friend knows that I support leaving the European Union. If he wants my frank view, I believe that the European Union will be very keen indeed to do a deal with us.
Mr Speaker
Order. No one enjoys the right hon. and learned Gentleman’s eloquence more than I, but let us share it with the whole House.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
The British Government insist that they have the right to take privileged legal advice that remains private between lawyer and client. I recall the Labour Government using the exact same excuse during the Iraq war. In the light of the confessed damage that any Brexit deal will cause, I beg, who is the client? Should not the Attorney General learn from the mistakes of the past, discharge his solemn and constitutional duty as a humble servant of Parliament and of the public, and publish? If not now, when?
The Attorney General
First, I point out to the hon. Lady that the advice of Lord Goldsmith was published two years after the event. What the House is now asking is that the advice, if any, given by the Attorney General be published in the middle of the negotiations, where we may still need to deploy many of the arguments connected with the withdrawal agreement in the future. Secondly, the advice of Lord Goldsmith was on a question of the lawfulness of the Government’s action. This is not a question of whether the Government acted lawfully; this is simply a question of whether the Government are acting wisely, on which Members of the House can disagree. There is a fundamental distinction between the position when the advice of Lord Goldsmith was given in 2003 and the advice today.
The advice that the Attorney General and the Law Officers give on a matter such as this could be replicated by any lawyer of reasonable competence. Why, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) could pop down to his chambers and find half a dozen lawyers capable of giving the same advice that I might have given on these points—probably better. The truth of the matter—what is so important about my advice?
The Attorney General
Well, it is very good of the House to attribute such importance to the Attorney General, but the reality is that, in terms of substantive effect, there are hundreds of lawyers who could give this opinion. [Interruption.] Let me finish.
Mr Speaker
Order. The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) should not rant from a sedentary position. She asked her question with considerable force; let us hear the response.
The Attorney General
The Attorney General has a very special role when the lawfulness of the Government’s action is at stake. There, it is true, he occupies a central role, because if he says it is not lawful, the Government cannot act contrary to his advice. But in a case such as this, the essential question before us all is a political question, not a legal one.
Dame Cheryl Gillan (Chesham and Amersham) (Con)
On whichever side of the House hon. Members sit, those of us who have been in government know that it is very important that there is safe space in which Law Officers and civil servants can give advice to Ministers. I fear that today we are trying to breach that convention, and that could be very dangerous for our system. It is extraordinary to me that people would prefer to have a piece of paper produced for them that they have clearly been told may contain information that damages the national interest, rather than have the Attorney General before us, who is giving us further and better particulars, and answering all questions in a full, frank and fair way.
Dame Cheryl Gillan
Well, Mr Speaker, I was just going to ask the Attorney General to confirm that there is nothing in the written advice that he has not covered today that, if it were revealed, would be damaging to the national interest.
The Attorney General
On all points of law about which this House has asked me, or any point arising from the withdrawal agreement, I will give the same view to any person who asks.
Mr Speaker
Order. I advise the House that 21 Back Benchers have questioned the Attorney General in 50 minutes. Believe me—I know these things, as I sit in this Chair for many hours and it is my privilege to do so—this is a much slower rate of progress than is customary. I appeal to colleagues to ask short questions and to the Attorney General, whose mellifluous tones I never tire of hearing, to be appropriately pithy in reply.
Tom Brake (Carshalton and Wallington) (LD)
Given the precedent set by Lord Goldsmith, whose legal statement was clearly spun and cherry-picked, without seeing the full legal Brexit advice, why should any MP here today believe that this statement is not similarly massaged and designed to bolster the Government’s position and deny MPs on both sides of the House full access to the legal advice that this House has demanded? I am afraid to say that the Attorney General has rather contemptuously and theatrically—as if he were performing “Rumpole of the Bailey”—dismissed us and refused to provide us with the advice.
The Attorney General
I can only tell the right hon. Gentleman that I have not massaged the advice. I have given it absolutely as I see it—absolutely starkly. I will give that same advice if anybody asks to come and see me, but I cannot breach the fundamental constitutional principle that I believe it would be contrary to the public interest to break. I can only invite the right hon. Gentleman to accept that I have given this advice as candidly as I possibly can; I cannot say any more if he does not accept that.
Mr Steve Baker (Wycombe) (Con)
An amendment was tabled to the Humble Address motion that was highly sympathetic to my right hon. and learned Friend’s position. It was not selected and not passed, but the motion, unamended, was passed. Therefore, whatever he has just argued at the Dispatch Box, the position is as my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) set out—he is under an instruction. If he wishes to change the position in the House of Commons, will he move a motion in this House to support the position that he has just set out?
The Attorney General
I will certainly give my hon. Friend’s point consideration, because that may be one way forward. At the conclusions of today’s proceedings, I shall consider what the position will be, and I shall be writing to Mr Speaker with my conclusions and proposals.
Mr George Howarth (Knowsley) (Lab)
The right hon. and learned Gentleman says that it would not be in the national interest to share his legal advice with the House. Does he not realise, though, that in just over a week’s time this House is going to have to decide what is in the national interest? How are we supposed to do that when he will not tell us what his legal advice is?
The Attorney General
With respect to the right hon. Gentleman, he has had my legal advice. What he has not had is what is in any kind of document that might have been created or my oral advice in any other circumstance, to Government Ministers or to the Cabinet—if such exists. But he has had my legal advice—
The Attorney General
Yes, the right hon. Gentleman has had my advice, and can have it at any other point on matters of law arising from the withdrawal agreement.
Victoria Prentis (Banbury) (Con)
Does the Attorney General think that it would have been possible to sign the withdrawal agreement without the inclusion of the backstop?
David Hanson (Delyn) (Lab)
I am not a lawyer, so I would welcome the Attorney General’s advice. This House passed a unanimous motion. It was not opposed by him or his Government. It is binding on this House. Could he give me some legal advice as to what my rights are now?
The Attorney General
I think the right hon. Gentleman has plenty of opportunities to consult people other than me. Ultimately, what the House will have to decide is whether an Attorney General and a Government who are seeking to protect the public interest are in contempt of its motion when they have sought to comply with the spirit of it to the maximum possible degree, and when they have put their legal adviser at the disposal of the House and instructed him to give full, frank, complete answers to any question asked on the matters of law that any legal advice would have been likely to cover.
Stephen Crabb (Preseli Pembrokeshire) (Con)
The Attorney General said that he would rather that there was a unilateral termination clause in the Northern Ireland protocol. Earlier, in the Select Committee on Exiting the European Union, Olly Robbins appeared to concede that one such clause had been drafted and had been tested with EU negotiators, but ultimately not deployed in the negotiations. Could the Attorney General confirm whether he was asked to provide legal advice on a unilateral termination clause and whether the decision not to include it in the negotiations was a political or a legal one?
The Attorney General
I cannot. I cannot, without breaching the convention, disclose whether or not I was asked to advise on any particular point. But what I can say is that the question of termination clauses was most certainly raised in the negotiations, but the European Union declined to entertain those termination clauses. It did so because the backstop is envisaged as an absolute guarantee that in all circumstances, including that of no deal, there would be no hard border at the Northern Ireland-Republic of Ireland border. Therefore, to have a termination clause would be a contradiction in terms. It would not be a guarantee if you can walk away from it. That is the decision the House must face—in the light of that, it must decide whether this is an arrangement into which it should, given the alternatives, enter.
Ian Paisley (North Antrim) (DUP)
I thank the Attorney General for his absolute candour in how he has presented this to the House this evening, but the stark reality of what he has set out, to any person living in Northern Ireland, is that as a result of Northern Ireland ending up in this backstop, which would be utterly shameful, Northern Ireland would become an annexe of the United Kingdom when it comes to trading relations during the backstop period. I quote to him from the document that he has placed in the Table Office today:
“These provisions apply to measures that affect trade between Great Britain and the EU, but not trade between Northern Ireland and the EU.”
In fact, we would have to comply with another regime. How could any Unionist sign up to that?
The Attorney General
The European Union’s original proposal, as the hon. Gentleman will know, was that Northern Ireland should reside in an entirely separate customs territory. The Government took the view that that was wholly and completely unacceptable. Why? Because there is virtually no sovereign state in the world that has separate customs and fiscal tariffs within its own sovereign territory. But there are many nations throughout the world in which different provinces and parts have regulatory divergence. The regulatory divergence in this case can be minimised to an almost, if not wholly, invisible extent. Furthermore, we do not wish, nor expect, to be in this arrangement. Under article 132 we can extend the implementation period, and if we are close to doing a deal, or even reasonably close, no doubt that is a choice that we will have to consider.
I say to hon. Members that I understand entirely their feelings of concern, even distaste, but this is a question affecting the whole United Kingdom and its interests. So vital is the fact that we should have an orderly exit from the European Union that, as people who hold the United Kingdom’s Union at their heart, I would urge them to consider supporting this agreement, for it is our means out of the European Union.
The Attorney General
It is a means out of the European Union. The limited extent to which Northern Ireland would remain relates to goods only.
The Attorney General
Agri-goods, yes—goods only. So I would urge Members to consider the interests of the United Kingdom. I fully understand the elements of this agreement that are dissatisfactory to them.
Sir Christopher Chope (Christchurch) (Con)
My right hon. and learned Friend told my right hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb) that the European Union is refusing to allow a get-out clause on the permanent backstop, but he has also told us that he does not believe that the permanent backstop is sound in European Union law. Can this matter be resolved by a reference to the European Court of Justice in the same way that the European Court of Justice gave its opinion in relation to the relevance of the Lisbon treaty requirement that the EU should sign up to the European convention on human rights? When it gave its opinion on that, it said that it did not think it was compatible with the EU treaties, despite the fact that it had been signed up to in that particular treaty. Can something similar be done in this case to remove the uncertainty?
The Attorney General
There is nothing to prevent a case from being brought to the Court of Justice of the European Union on whether any agreement that is signed by the European Union is compatible with the treaties. But I would point out that, as I said earlier, the time at which the backstop becomes legally vulnerable, or most legally vulnerable, is the time at which it becomes, de facto, not simply temporary but permanent. It is at that point that the problem may crystallise in connection with the use of article 50 to conclude this agreement. The legal uncertainty about knowing whether the backstop would survive such a challenge is one of the factors, I believe, that will impel the European Union to conclude an arrangement with us in expeditious time.
Thangam Debbonaire (Bristol West) (Lab)
It appears to me that the Attorney General is treating this House and everyone we represent with a great deal of indifference, at best, and contempt, at worst. So I have to ask him: at what point did he advise the Chief Whip that he would not comply with the terms of the Humble Address? Was it before, during or after the point at which this House expressed its will in support of that Humble Address requiring him to publish full advice?
The Attorney General
The decision as to whether a Law Officer’s advice, should any have been given, should be published is a collective decision of the Government. The Attorney General must consent, but first, it is a collective decision of the Government. I hope that that answers the question. I had no discussions with the Chief Whip on this subject. None was sought.
Vicky Ford (Chelmsford) (Con)
As someone who was born in Northern Ireland, I hold the Belfast agreement as very precious, because it safeguards my birth right to be accepted as British or Irish or both. On 13 November, I listened closely when the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) changed his interpretation of the Opposition motion no less than four times. I thank the Attorney General for making it so clear that, in his view, the backstop is not a risk. On a totally separate issue, if we were in the backstop, would we have control of our fishing waters?
The Attorney General
I am grateful to my hon. Friend for her question. May I say candidly that I did not say it was not a risk? It is a risk, but, weighed against the other risks of utter chaos, losing our departure from the European Union on 29 March or the consequences of so grave a breach of faith with the people of this country as to ignore the outcome of the referendum, I believe it is a risk that we have to take.
Secondly, my hon. Friend asked about fishing. She is right that in the backstop, there would be no access to our waters other than that to which we agreed.
Catherine West (Hornsey and Wood Green) (Lab)
The Attorney General has made many references to his passion for Unionism. What legal assessment has he made for different parts of the UK—for example, the devolved Administrations or regions of England—if the Northern Ireland protocol comes into being?
The Attorney General
The whole principle of devolution is that there will be divergences between parts of the United Kingdom that are governed by devolved Assemblies. Unfortunately, in Northern Ireland’s case, that devolved Assembly is not at present functioning. Were the institutions functioning, they may well have been given a central role in these matters, because Northern Ireland shares a land border with the European Union and therefore calls for special, specific measures rather than the same considerations that apply to other parts of the European Union.
Philip Davies (Shipley) (Con)
The Prime Minister has said on many occasions that if we were to leave without a deal, we would not pay any money over to the European Union. The Chancellor has said on many occasions that we are legally obliged to pay the money over to the European Union. Can the Attorney General tell us what we are legally obliged to pay over to the European Union to leave, and which treaties he is referring to when he gives us that advice?
The Attorney General
The position on money is this. The view of the Government, and my view, is that we would have obligations to pay a certain amount of money were we to leave the European Union without a deal. The House of Lords European Union Committee concluded that there would be no obligation under EU law. That is a stronger argument—not necessarily an incontestable one—as to our obligations under EU law, but the Committee also concluded that we might have obligations under public international law, and with that I agree. There is an argument that we would not have an obligation under public international law, but it is an argument unlikely to be accepted by any international tribunal.
My view is therefore that we would owe a presently unquantifiable sum were we to leave the European Union without a deal. It is impossible at this stage to say how much. It is true that the European Union is not a member state and is not a state, and therefore it is unable to take the case to the International Court of Justice. It might therefore be difficult to enforce the public international law obligation that existed. However, I ask the House to reflect on the fact that if this country, acknowledging that such obligations probably exist or do exist, did not pay them, it would be likely to cause the deepest resentment, just as it would to any of us who were unpaid a debt. If we leave a club, we pay the bar bill. If we do not pay the bill, we are not likely to get a lot of consideration from the other side.
Diana Johnson (Kingston upon Hull North) (Lab)
I wonder whether the Attorney General can help me. He has said that in exceptional circumstances, legal advice can be disclosed. He has also talked this afternoon about the unique and extraordinary circumstances we are in. What is the difference? Why are we not in exceptional circumstances?
The Attorney General
The Attorney General, by definition, is only called upon to advise on matters that are exceptional or in exceptional circumstances. The question here is what requires the advice of the Attorney General to be disclosed. In Lord Goldsmith’s case, the issue was whether the action of the Government was lawful. The action of the Government could not be taken if the Attorney General had not signed off on it, because it would be contrary to the ministerial code.
The circumstance here is that the House has available to it a wide range of highly competent legal advice that is just as good as mine and as those who advise me. There is nothing essential, I suggest to the House, about the advice of the Attorney General being disclosed in this case, but there is something that could lead to severe damage to the public interest. One hon. Lady on the Labour Benches said that I was being arrogant. I am not. I am trying genuinely to protect the public interest. The last thing I want to do is to be at odds with this House. I have been a Member for 13 years. I would very much like to ensure that the House is satisfied, which is why I am here today, answering these questions.
Robert Neill (Bromley and Chislehurst) (Con)
I am glad that the Attorney General draws a distinction with the Iraq case. Surely the act of withdrawal from the European Union must be lawful, because it is authorised by statute in this case. As to his advice, is not the reality that any lawyer often has to advise as to the difference between a theoretical risk and a practical risk? Do I take it that his assessment is that the likelihood of a theoretical risk being crystallised—namely, because the European Union is prepared to breach international law by breaching the best endeavours and good faith clauses, and at the same time to risk breaching its own Union law by relying on article 50 to form a permanent arrangement, for which it is not envisaged for—is not a realistic one, and therefore he advises that we accept it?
The Attorney General
I am grateful for my hon. Friend’s question. As I have said, I think that there is unquestionably a risk. There is a legal risk because there is no unilateral means out of the backstop. The question is with what degree of probability one thinks it would arise. My view is that it is not probable, but other Members will have their own views.
Several hon. Members rose—
Stephen Kinnock (Aberavon) (Lab)
The Attorney General may be familiar with the terms of the so-called Norway-plus option, in which the United Kingdom would join the European economic area via the EFTA pillar and combine that with a customs union. Can he confirm that that arrangement would supersede the backstop, and in that case, the backstop would in fact fall away? Can he also confirm that it is possible to unilaterally come out of the European economic area via article 127 of the EEA agreement, so it enables a unilateral withdrawal?
The Attorney General
If an EFTA-style arrangement —of course, a country cannot belong to EFTA if it is a member of a customs union—with a customs union were introduced, I see no reason why it would not satisfy the stated objectives of the backstop in protecting the hard border and north-south co-operation. The hon. Gentleman asked whether the arrangement is terminable. I think it is terminable on 12 months’ notice, but I may be wrong. However, a customs union would fall to be negotiated specifically with the European Union, and one would have to insist upon such a termination clause in that union. That would be a question of agreeing it with the Union.
Andrew Bridgen (North West Leicestershire) (Con)
Does the Attorney General agree with Dr Carl Baudenbacher, the recently retired president of the EFTA court, who said,
“This is not a real arbitration tribunal—behind it the ECJ decides everything. This is taken from the Ukraine agreement. It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this”?
The Attorney General
I do not accept that characterisation because, in any event, the only things that can be brought before the tribunal are systemic, operational issues to do with the management of the agreement by both sides. The Court cannot get involved, once the winding down has taken place, in the resolution of individual disputes between the citizens and businesses of this country. Members really must understand that. It will be over: the ECJ’s jurisdiction will be finished once the winding down takes place. This is an entirely different situation to resolve disputes between the state of the United Kingdom and the European Union. Where we have agreed to apply European Union law, it makes perfect sense that the EU Court should interpret it, and then it should be applied by the arbitral tribunal. I have to say to my hon. Friend that I see no real fundamental objection to it.
Ian Murray (Edinburgh South) (Lab)
There is another strong constitutional principle in this House—that if a motion is brought before the House that the Government disagree with, they use their majority to vote it down. In this case, they did not. It is not in the national interest; it is in the Government’s interest not to produce this legal advice. Will the Attorney General tell the House what legal advice he will give the Cabinet, the Government or, indeed, himself about the principle of not abiding by the will of this House?
The Attorney General
It is not such a matter. I must ask the hon. Gentleman to accept that it is not a matter of the Government’s interest. It is a matter of the public interest of this country through a fundamental convention and principle.
The Attorney General
Well, that is what I understood the hon. Gentleman to have asked. With respect, I simply cannot accept that this is being done to protect the Government. It is not; it is being done for one reason only—the public interest. The question for this House is whether the Government, who are trying to protect the public interest, or any individual member of the Government are being contemptuous of the House, when they are driven—he is driven—to this position by a firm and conscientious conviction that it is contrary to the public interest.
Mrs Anne Main (St Albans) (Con)
May I suggest that when the Attorney General argued to the right hon. Member for Belfast North (Nigel Dodds) that the differences were merely niggling and almost invisible that that is a bit like suggesting someone is a little bit pregnant? This is a sell-out in terms of the Union, and at what point is our Prime Minister’s pledge that we would not make separate arrangements for any country in the Union going to be sold out, in his argument, in the national interest?
The Attorney General
I do not agree with my hon. Friend that this is a sell-out. There is no question but that aspects of it that are both undesirable and unsatisfactory, but this backstop need not ever be triggered, and if we are in, I am confident that we can emerge out of it. It will also produce significant benefits for the people of Northern Ireland—let us not forget that—were it ever to be engaged.
Chris Williamson (Derby North) (Lab)
Many commentators and hon. Members believe that the Attorney General is in contempt of Parliament. If that is indeed the conclusion of Parliament, I understand the penalty could include expulsion from this place. Is the Attorney General prepared to be expelled for standing by his refusal to provide the details of the advice he has given, which has been voted for by this House?
The Attorney General
I hope the House will reconsider the position. I hope that it will understand that no Attorney General and no Government would wish to place themselves—and certainly not I as Attorney General—in contempt of the House. There is simply nothing of that in my desire or wish, and I would not take this position if I did not feel that that was contrary to all our interests. I stand before the House fully understanding the nature of its concern, not to say indignation; I accept that. It is a deeply unsatisfactory position for any Attorney General or Government to be in.
I am truly sorry that I am not in a position to disclose either the fact or the content of my advice. However, I am doing so not to frustrate the legitimate interests of the Members opposite or Members behind me, but rather and only because I do believe it is against the public interest at a time when we are negotiating and at a time when this involves advice to a Cabinet or might well involve advice to a Cabinet that must, for reasons of fundamental principle, be kept confidential.
Several hon. Members rose—
Mr Speaker
Order. I do wish I could encourage Members to compete on brevity with the right hon. Member for New Forest West (Sir Desmond Swayne), who is, frankly, in a league of his own and untroubled by any close rival. Let that situation change. I call Crispin Blunt.
Crispin Blunt (Reigate) (Con)
I doubt it, Mr Speaker.
The Attorney General has made it clear that the provisions about the backstop are to address having no hard border and that there would have been no agreement without these backstop provisions being in the agreement. When we are making our political judgment about the potential permanence of or the reasons behind the backstop, what credence should we give to the fact that, although WTO terms suggest there would be a hard border, there is the potential for a waiver under WTO article 9.3 and there is the potential for a national security waiver under article 21? Given that the EU and the Republic have both said they would not put up a hard border, what conclusion are we to come to about their good faith and best endeavours?
The Attorney General
My hon. Friend must understand that we cannot look at this simply as a question of the traffic of goods between the Republic and Northern Ireland. The stated objectives are to protect in all its dimensions the integration that has taken place between Northern Ireland and the Republic—in health treatment, in education, in cultural activities—and all these activities are to be protected. The Government of the United Kingdom have made a solemn and good faith pledge to the Republic of Ireland and to the European Union that they will preserve that integration in the interests of the people of Northern Ireland. What we have to do is find a way of doing so that is consistent with the interests of the Union and of the United Kingdom. The backstop is a temporary solution. We will find another, and it will not, except by the consent of the Stormont institutions, have the same problems that the backstop has.
Ian C. Lucas (Wrexham) (Lab)
What is the Attorney General’s authority for the proposition that the opinion of a single Member of Parliament, however eminent, can override a decision made by the House of Commons?
The Attorney General
I think I have made it plain that I am not seeking to suppose that I can override the decision of the House of Commons. The House has at its disposal—[Interruption.] Hear me out. The House has at its disposal the means by which to enforce its will. It can bring forward a motion of contempt, seek to have that motion passed and seek, through the Committee of Privileges or whichever way it is appropriately done, to impose a sanction. I fully accept that. I do not set myself up contrary to the House; I simply say that I cannot compromise the public interest, and if I had my personal desire—
The Attorney General
The hon. Gentleman is shaking his head. Why would he not believe me? Does he think I want to be in this position? Does he really think that if there were not some fundamental bar of principle against my disclosing anything I might have given to the Government, I would not immediately volunteer it to him and all hon. Members opposite? I am only doing it to protect us.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
I must press the Attorney General on the answer he gave to my hon. Friend the Member for Shipley (Philip Davies) on his legal advice about how much we actually do owe the European Union. How can he expect us to vote for this deal if he cannot give us his legal opinion about what we specifically still owe it? Is some of this money going on good will for the possibility, maybe, of a trade agreement?
The Attorney General
There is a formula in the agreement for the calculation of our obligations, but it depends on others’ contributions, what particular programmes there are and whether they spend particular sums of money. There is a series of variable factors, which is why we cannot give a firm, clear and precise figure. If my hon. Friend is referring to what may be due after no deal, that would depend on a series of arguments that would be untested except in a court.
Chris Bryant (Rhondda) (Lab)
Oddly, I had more sympathy for the Attorney General before today, because he has pushed the House into this situation. He knows perfectly well that the Government chose not to oppose the motion; they accepted it. It is the will of the House. He is, in effect, pushing us to say that he is in contempt of Parliament, because at some point, surely even a Government have to bow the knee to Parliament.
The Attorney General
Suppose there was advice, and suppose the advice contained—this is a hypothetical situation—[Interruption.] Well, the same principle applies. Suppose the advice contained information, facts or considerations of the most acute significance for the national interests of this country.
The Attorney General
But one might lose the vote. What then? No Minister could go ahead and harm the nation merely because of a resolution, when the House had not seen the document. In court, there is a mechanism for weighing this, but the House has not seen the document. The motion for a return was traditionally always confined to public and official documents.
The Attorney General
That is because this procedure has been reinvented recently. The truth of the matter is that the House has no power to command documents that are not public and official. That is the constitutional question that the House needs to grapple with.
Charlie Elphicke (Dover) (Ind)
May I congratulate my right hon. and learned Friend on the passion with which he has made his submissions to the House today? In the light of his advice, would it be reasonable for the House to invite the Prime Minister to go back to Brussels and ask for termination of the backstop either on a given date, or after the passage of a certain amount of time?
The Attorney General
As my hon. Friend knows, that is not a legal question. We have reached a deal. The House must make a judgment on this deal. If it had been possible to secure a unilateral right of termination, it would have been secured. It was not secured because the European Union asked for an absolute guarantee at the Northern Irish border, but has said that it is temporary; that is written into the agreement. It may well be that the word “temporary” is not enforceable, in the sense that this will subsist even in the event of negotiations breaking down, but that is a clear indication that the backstop cannot subsist forever; and, in my view, as a matter of European Union law, it cannot.
Kevin Brennan (Cardiff West) (Lab)
This was not just any motion; as the right hon. and learned Gentleman says, it was a motion for a return to release papers under parliamentary privilege. There are two reasons why he is wrong: first, he says of his advice, “There’s nothing to see here,” yet he is trying to argue that by releasing it, he would somehow breach considerations of national and public interest. Secondly, under the ministerial code, he can voluntarily release advice in exceptional circumstances without breaching any considerations of national interests, or any of his deeply held principles. Why does he not follow that logic and do the right thing?
The Attorney General
The existence of very rare examples of the Attorney General’s advice being disclosed does not mean that the power ought to be exercised in this case. In the Goldsmith case, it was disclosed two years after the event. We are in the middle of a negotiation.
The Attorney General
No, we have not. The future declaration is to be negotiated, and many of the same arguments will apply.
Mrs Kemi Badenoch (Saffron Walden) (Con)
Further to the comments of the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) regarding the customs union, will my right hon. and learned Friend confirm that the future declaration guarantees that the UK will have an independent trade policy, and consequently that our future relationship will not be in the customs union?
The Attorney General
I am most grateful to my hon. Friend for that, because it is an important consideration. There are two things of real significance—certainly of real prominence—in the political declaration. First, the European Union has accepted that the final arrangement will involve an independent trade policy. One cannot have an independent trade policy and belong to a conventional customs union. Secondly, there will not be free movement; one cannot belong to the single market without subscribing to the four freedoms, so those set the outer boundaries of any deal that will be done.
Geraint Davies (Swansea West) (Lab/Co-op)
The European Union (Withdrawal) Bill empowers the Prime Minister to submit an application under article 50 based on an advisory referendum. If that referendum is found to be illegal, and based on lying and cheating, surely it follows that the advice from that referendum is flawed and that the Prime Minister should withdraw that application. The same would go for a general election result; such findings would require another election.
The Attorney General
I hope I heard the hon. Gentleman’s question correctly. I hope he will forgive me—I could not quite hear; other voices were speaking. If the question was on the nature of the referendum result and the suggestion that it was procured by some sort of fraud, I do not agree with that. In any event, a case on that is pending in court, so it would be wrong of me to make any substantial further comment on it, but the policy of the Government is that the referendum result must be honoured, and that is what will happen.
Chris Philp (Croydon South) (Con)
The terms of our EU membership say that we have the right to leave unilaterally under article 50. We also have the right to leave the unrelated European convention on human rights. What explanation and assurance can the Attorney General give the House as to why, under the proposed arrangements, we do not have those two rights?
The Attorney General
As I have explained, a unilateral right of termination would be inconsistent with a backstop, which is a guarantee that in circumstances where there is not a deal, or during the negotiations for a deal, there will be no hard border, and there will be protection of north-south co-operation. That backstop has to exist, or there will be no deal. As to the ECHR, that is already protected by the Belfast agreement; it is embedded in that agreement, and would have to be preserved for that reason.
Martin Whitfield (East Lothian) (Lab)
In paragraph 42 of the right hon. and learned Gentleman’s notes, he confirms that
“During any extended implementation period…the UK would not be part of the Common Agricultural Policy”.
This will, of course, have an effect on Scotland. Can he confirm what legal advice was given with regard to the devolved Government coming out of the common agricultural policy in an extended implementation period?
The Attorney General
The CAP is dealt with by the Department for the Environment, Food and Rural Affairs, and I have no doubt that Government lawyers will have given it advice. I am afraid that I am not in a position to assist the hon. Gentleman with any specific advice on that question at the moment, but I am happy to write to him about it.
Richard Drax (South Dorset) (Con)
We have heard of the will of the House tonight; what about the will of the people? They voted to leave the EU in its entirety, not to be half in, half out. I thank my right hon. and learned Friend for his legal advice today, but it is full of ambiguity, as I fear the political interpretation could be in future. This will not breed confidence in our nation.
Mr Speaker
I invite the Attorney General to insert the question mark that I think the hon. Member for South Dorset (Richard Drax) might have intended.
The Attorney General
I was puzzled as to what I was to answer. I disagree with my hon. Friend. We will leave legally on 29 March. To get back, we would have to apply for accession under article 49. We will be in a fundamentally different position on 30 March, if we can get there—and we have to get there, because that will honour the verdict given by the British people on 23 June 2016. The best way of ensuring that we do that, whatever the unsatisfactory elements that I accept are involved in this deal, is to take the key to the door of the cell, and get out on 29 March. This deal is the best means of doing that.
Jim Shannon (Strangford) (DUP)
In the Attorney General’s somewhat bombastic responses to hon. Gentlemen and hon. Ladies, he has not addressed the issue to which my right hon. Friend the Member for Belfast North (Nigel Dodds) referred: the backstop down the Irish sea. Will he outline the legal implications of Northern Ireland entering into a customs union with no voice or vote for an indefinite period of time, which to all intents and purposes would create a united Ireland without the mechanism of a border poll, a vote called for within the Belfast agreement?
The Attorney General
The hon. Member puts his finger on something that I do regard as being one of the undesirable features of the backstop, which is that there will be rules passed relating to goods. The trade in goods is a narrow field of human and public life, but rules will be passed and the people of Northern Ireland will not have the right of representation in their passage. That is why I think it is essential it should be temporary, why we must strive to make it so, why the extension of the implementation period is a real option in those circumstances, and why I believe, for the reasons I have already given, we can avoid it or avoid it being of any great length.
Robert Halfon (Harlow) (Con)
Will my right hon. and learned Friend publish not the whole legal advice, but the legal advice on why we have to give £39 billion to the European Union? He mentioned that there could possibly be an extension to the transition period. Will he set out our legal financial obligations if we do extend the transition period?
The Attorney General
There would be financial obligations for extending the implementation of the transition period. They would have to be negotiated at the time. The Joint Committee would consult on them and it would reflect a reasonable proportion or contribution for the period for which we were signing up. In relation to any advice connected with the £39 billion, again my right hon. Friend will understand that I am not at liberty to disclose advice the Government may have received on that matter. I can say that there has been very widespread commentary and discussion on it. I commend to him, for example, the House of Lords European Union Committee.
Alex Norris (Nottingham North) (Lab/Co-op)
In attempting to prop up this failing deal, the Prime Minister has reached out to those of us on the Opposition Benches and asked for our support. Does the Attorney General not think that it is a bit rich to ask for our support, given that we will not even be given the courtesy of compliance with the will of this House?
The Attorney General
I have said why. I truly wish that I were not in this position and the Government were not in this position. [Interruption.] I do believe it. I do not know what the hon. Member for Cardiff North (Anna McMorrin) is saying. If I did not believe it, I would not be here now saying what I am saying. It is contrary to the public interest; I would be damaging the public interest if I took this decision. I am here to answer the questions of Opposition and Government Members as frankly and candidly as I can. Nothing that I advise today will be different from any other advice that I may or may not have given.
Maggie Throup (Erewash) (Con)
Can my right hon. and learned Friend reassure me, as someone without any legal background at all, that I have interpreted the lawyer-client relationship correctly: that it allows for the lawyer to provide impartial and proper legal advice unencumbered by political consideration? Does this convention hold true in relation to the issue we are talking about today?
The Attorney General
Yes. My hon. Friend is absolutely right. No lawyer would be worth his salt or any use to his client if he allowed his personal or political views to affect his judgment on matters of law.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
The Attorney General has been vehement in his assertion that the release of this information would be detrimental to the public interest. Is it therefore not a matter of regret to him that his Government have not had the basic virtue of consistency in their approach to the Humble Address? Now that contempt proceedings have been initiated by submitting a letter against the Government, what is his legal advice to the Government going to be?
The Attorney General
I am afraid I cannot disclose the latter without committing the very sin that I am trying to prevent. Does the hon. Gentleman ask me whether I regret that? Let me be frank: yes, I do. We should have opposed the motion—of course we should have. We should have voted against it. All I can say is that if we had lost on a contested vote, we would be in exactly the same position as we are now in.
Alex Chalk (Cheltenham) (Con)
If we found ourselves in the backstop, we might seek to argue that the European Union had not acted in good faith and had not used best endeavours. Who would appoint the body that would adjudicate on that dispute, and how could we be satisfied that we were going to get a fair hearing?
The Attorney General
The governance provisions, set out between articles 167 and 181, provide for 25 independent arbitrators, who are not members of any member state of the European Union or belong to the United Kingdom, to be appointed by both sides as a panel from which an arbitral tribunal can be selected. Ten are to be proposed by the United Kingdom and 10 by the European Union. Five chairmen are then to be proposed by each. If the parties are unable to agree, when a tribunal is formed two are appointed by the UK and two are appointed by the EU. Those four then choose the chairman. If they are unable to decide on a chairman, the permanent court of arbitration will appoint by lot.
Sandy Martin (Ipswich) (Lab)
Can the Attorney General tell the House whether he conveyed to the Government Chief Whip, directly or indirectly, his determination not to comply with the Humble Address before the decision was taken not to vote on it?
The Attorney General
I had no discussions with the Chief Whip about the decision to vote or not to vote on this matter. I hope that answers the hon. Gentleman’s question. [Interruption.] Forgive me, Mr Speaker. If I have omitted part of the question, I wonder if the hon. Member could put it again.
Mr Speaker
Order. The Attorney General is perfectly at liberty to answer as he thinks fit. He looks quizzically. I say this only by way of interpretation: I think the hon. Gentleman asked whether the right hon. and learned Gentleman had conveyed his views about this matter, directly or indirectly, before the vote on the motion about which we have been speaking this evening. He indicated that he had not spoken or conveyed his views directly. I think the quizzical attitude related to whether there was any indirect communication.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
My current understanding is that if there is no deal, we will leave with no backstop on 29 March. If the EU and the Republic of Ireland have been content effectively to have a “leave without backstop with two years’ notice period” situation until now, what does the Attorney General think has changed that makes it unacceptable to them now? What does he consider their motivation for that to be? As an aside, can the Attorney General confirm that in extremis the Vienna convention can be used to allow treaties to be broken?
The Attorney General
The purpose of the backstop is to give the people of Northern Ireland and the Republic the confidence of knowing that there will not be any retreat from the current integration that has taken place between them over the past 20 years. That is a solemn commitment that is in the interests of Northern Ireland, as well as the Republic of Ireland. The question is how to achieve it. In the interim before another solution is found, which I firmly believe we shall find, this is the solution that would pertain were we ever to have to use it. As to the Vienna convention, there is no provision in the Vienna convention that allows us to terminate a treaty that has no termination clause and that is plainly intended to subsist until another event takes place.
Jim McMahon (Oldham West and Royton) (Lab/Co-op)
I hoped today that we would have clarity of thought and calmness of expression, so that we would be all informed on the matter on which we are due to vote next week. I can say that we have not had that. We have had bluster; we have had posturing; and we have had a very clear contradiction. On the one hand we are told that there is nothing to see here, but on the other hand we are told that it would be against the public interest to release information. My question is this: if the House does not have confidence in the Attorney General to deliver the advice in the way that we think is needed, is there any route in the constitution, via the Leader of the House or elsewhere, for us to get alternative, independent legal advice straight to Parliament?
The Attorney General
I am very sorry the hon. Member feels that. If I have expressed myself intemperately it is simply because of the questions that I have been asked. I am trying to convey, obviously unsuccessfully, the fact that I am here to justify or to seek to defend this position only because I believe in the public interest. That is the reason why I am saying what I am saying. On all points of law on which I have been asked, I have given my best judgment, my fullest judgment and my starkest judgment about what the situation truly is—as I would give to anybody, including the Government. I assure him that that is the case. That is the complete and full truth. I have given, absolutely candidly, the legal views that I hold on this matter.
Robert Courts (Witney) (Con)
I am very grateful for the Attorney General’s indication that article 50 does not provide a legal basis in Union law for permanent future arrangements. Will he give his view on the concern that it might none the less be a basis for arrangements that prove to be indefinite?
The Attorney General
No, I do not believe that that is the case. Once it became de facto the subsisting and permanent arrangement, in that there was no prospect of agreement because negotiations had broken down, it would be severely vulnerable to challenge, because it is widely understood that article 50 cannot be a proper basis for any sort of permanent or enduring arrangement. The fact of the matter is that it would be extremely vulnerable to legal challenge.
Points of Order
(5 years, 4 months ago)
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Nick Thomas-Symonds (Torfaen) (Lab)
On a point of order, Mr Speaker. I seek your guidance regarding how the House should proceed in pursuing the publication of the advice provided by the Attorney General to the Cabinet. It is clear to Opposition Members, and we believe to the overwhelming majority of the House, that the document provided does not constitute the final and full advice provided by the Attorney General to the Cabinet. More importantly, this does not comply with the motion of the House that you have ruled to be effective. Indeed, I suggest that in the course of his statement, the Attorney General has been quite open about the fact that he is not complying with the motion based on his belief that it is not in the national interest to do so.
My right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the shadow Brexit Secretary, along with the Scottish National party’s foreign affairs and Europe spokesperson, the Liberal Democrat spokesperson on Brexit, the Deputy Leader of the Democratic Unionist party, the Plaid Cymru spokesperson on Brexit and the leader of the Green party in Parliament, have this afternoon written to you asking whether you would consider giving this House, at the earliest opportunity, the chance to debate and resolve whether this is a matter of contempt. It is clear to me that the Government have taken an unprecedented decision not to comply with the unanimous and binding decision of this House. Instead, they seem to be playing for time, hoping that contempt proceedings take longer than the timetable for the meaningful vote. But we as a House cannot allow that to happen. I therefore ask you to set out how we should proceed to resolve this vital matter.
Mr Speaker
I am grateful to the hon. Gentleman for his point of order and for his characteristic courtesy in giving me advance notice of his intention to raise it—[Interruption.] I shall ignore the sedentary chuntering, which is undertaken for no obvious benefit or purpose. I have only just seen the letter to which the hon. Gentleman refers. I shall give it immediate attention when I leave the Chair. Having sat through these exchanges, I intend to come to a rapid decision, which I will convey to the House before it rises tonight, or, if that proves impossible, at the earliest opportunity tomorrow. I hope that that is helpful to colleagues.
The Attorney General (Mr Geoffrey Cox)
On a point of order, Mr Speaker. As I indicated during the course of the debate, I had concluded, and I think mentioned, that I will be writing to you this evening, setting out the Government’s proposals in connection with this matter. I wonder if I could invite you to consider that letter, as I am sure you will, in due course this evening.
Mr Speaker
Well, I await—[Interruption.] Order. I note what the Attorney General has said, and, of course, I shall be interested to see any letter that he chooses to send to me. It is important that this matter is dealt with in a timely fashion. That is a highly relevant consideration for me to take into account, but I have heard, with respect, what the right hon. and learned Gentleman has said, and I wait to see what emerges.
Robert Neill (Bromley and Chislehurst) (Con)
On a point of order, Mr Speaker. The letter that the hon. Member for Torfaen (Nick Thomas-Symonds) referred to touches upon a most grave matter in any view to all Members of the House. Is it either in order or courteous that the text of that letter should have been released to a journalist who has then put it up on Twitter? I know that that was because of the journalist, but was it in order for hon. Members or those acting on their behalf to release it before you were apparently aware of it or had had the chance to consider it and rule on it?
Mr Speaker
It is always best if letters sent to me are received and seen by me before they are seen by others, but I will address the substantive responsibility that is invested in me—that is frankly a different and on the whole rather more important matter, but I always treat the hon. Gentleman and all Members with courtesy. I note what he said and I issued my response in the first sentence of my reply to him.
Mrs Anne Main (St Albans) (Con)
On a point of order, Mr Speaker. As usual, you have called every Member of the House who wished to ask a question, but the convention of the House is that we have no rebuttal or right to come back on any questions asked. Given that the Attorney General said that he was happily going to answer any questions, as someone with no legal background I feel that I have had to play guess the question of what we may need to know that we have not been able to ask. Would it be in order for the House to table a series of questions to be answered—anything that they would have liked to put to the Attorney General, but did not get the opportunity to ask—and for those to be answered as quickly as possible to give us more information than we could glean today?
Mr Speaker
Let me say in all courtesy that I am not sure, given the pressure of time, of the practicality of the arrangement that the hon. Lady is advocating. For the avoidance of doubt, however, let me say to her that I have no reason to doubt either her legitimately insatiable appetite for interrogation—a very proper appetite in a committed parliamentarian, which she is—or indeed, that of the Attorney General to respond to questions. Therefore, in an ideal world, I would be quite open to the idea that there could be further questioning. As the House will know, I am an unusual fellow—I enjoy few things more than listening to my colleagues asking questions and Ministers answering them, which is probably quite useful really, given that that is what the Speaker of the House is expected to do. However, we have come up against the matter of practicality, and although the hon. Lady may now have her head filled with questions that she wishes she had asked, but has not done so, we have to progress and expedite matters. I hope that she will feel pleased that she has at least asked a question, and she can make her own assessment as to the quality of the answer. If, separately, she wishes to beetle up to her right hon. and learned Friend the Attorney General, I feel sure that she will be greeted with the courtesy that he invariably displays.
Jim McMahon (Oldham West and Royton) (Lab/Co-op)
On a point of order, Mr Speaker. We have all had sight of the copy of the letter that has been sent cross-party to you. In the light of the letter that is due to follow from the Attorney General to you, will we also have a copy of that?
Mr Speaker
The Attorney General is nodding his assent to that proposition. Just to be clear, the hon. Gentleman is asking whether he can have sight of the Attorney General’s letter, and I think that the Attorney General is signalling that the answer to that is yes.
Chris Bryant (Rhondda) (Lab)
On a point of order, Mr Speaker. This is a completely different issue.
Chris Bryant
Because you are a cerebral fellow, Mr Speaker, you will know that on 30 October, I asked the Foreign Secretary why the Magnitsky provisions of the Sanctions and Anti-Money Laundering Act 2018 had not yet been implemented. He said in the Chamber that it was because we were members of the European Union and we cannot implement sanctions of our own until we have left. He repeated this the next day in the Foreign Affairs Committee, but a week later, the permanent under-secretary at the Foreign Office said, “No, it’s nothing to do with that—it’s because we do not have any time to draft the statutory instruments.” The Prime Minister today returned to the original advice that was provided by the Foreign Secretary. The legal advice that has been provided to the Committee by the Clerks of the House was that actually there is no reason why we cannot introduce our own sanctions, because we did so back in 2011. I just wonder where I could get definitive legal advice from and whether you think, considering that the Foreign Secretary said on 30 October that he would write to me, that sufficient time has passed for me to have had a reply.
Mr Speaker
First, I recall the hon. Gentleman’s inquiry. I would not have been able to pinpoint the date—I advise those attending to our proceedings outwith the Chamber—as I do not have that level of anorakish recall of his parliamentary contributions, but I do recall the fact of the question being put. It made an impression on me, as does so much of what he says. Secondly, as a matter of principle, the Foreign Secretary ought by now to have replied to a request of that date—if it was of that date—from the hon. Gentleman. Thirdly, as a matter of practicality, I say that it is somewhat unwise for a Minister—in this case, apparently, the Foreign Secretary, an extremely experienced and dextrous, as well as courteous, parliamentarian—not to have replied to the hon. Gentleman by now, for failure to provide one was bound to invite excoriation. The Foreign Secretary will now be on the receiving end of that as soon as he learns of the hon. Gentleman’s point of order. I hope that on all three counts I have brought some happiness into his life.
Mr Speaker
I will come to the Front-Bench spokesperson first, but we must try to bring matters to a close shortly.
Barry Gardiner
On a point of order, Mr Speaker. I would like to raise a point of order regarding a response I received from the Minister for Energy and Clean Growth at the last Business, Energy and Industrial Strategy oral questions. I asked the Minister why a roundtable with all the key fracking companies that she held on 21 May had not been declared on the transparency register. In response, she claimed that her officials did not disclose the meeting of 21 May because
“the ministerial code does not require Ministers to disclose meetings that they drop in on, as opposed to host in their office”—[Official Report, 20 November 2018; Vol. 649, c. 715.]
I have searched the ministerial code and can find no reference to a difference in disclosure requirements such as the Minister suggests.
It would also appear that the Minister’s involvement in the meeting may not have been as casual as she suggested. During a Westminster Hall Debate on 10 July 2018, the Minister in fact claimed:
“I did hold a very effective shale industry roundtable”—[Official Report, 10 July 2018; Vol. 644, c. 284WH.]
A freedom of information request querying the nature of that roundtable received a letter in response where the Department stated that this was indeed
“the Shale Roundtable that the Minister of State hosted on 21st May 2018”.
By the Department’s own admission, this was a meeting the Minister had hosted, rather than dropped in on. The agenda of the meeting was also released under the FOI request. It reveals the extent to which the Minister was present. The roundtable began at 1 pm and finished at 2.35 pm, lasting 95 minutes, and the Minister was present for at least 70 minutes. I contend that this would not, in any reasonable opinion, constitute dropping in on a meeting. I seek your advice, Mr Speaker. Has any request come from the Minister seeking an opportunity to come before the House to correct the record?
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. The short answer is that, as far as I am aware, no request has been made by the Minister concerned or any other Minister to make a statement of correction or other statement on this matter. If a Minister believes that he or she has erred, it is not just open to that Minister to correct the record, it is incumbent upon him or her to do so. I have received no such indication. The hon. Gentleman is a versatile and experienced parliamentarian and can pursue this matter further, if he so wishes, in a variety of ways, whether in correspondence or through questions, but not further tonight by this mechanism.
Helen Goodman
Further to the point of order from my hon. Friend the Member for Rhondda (Chris Bryant), Mr Speaker. I today received a letter from a Foreign Office Minister saying that the statutory instrument will shortly be before the House. I am sure, if my hon. Friend so wishes, he could be on the Committee when we examine the instrument. We would all benefit from his wisdom on this matter.
Mr Speaker
That is extremely interesting information, and I am very grateful to the hon. Lady. I feel sure that she feels that she has done the House a signal service.
Mr Speaker
Oh, very well, but it must be very brief. I feel that the hon. Gentleman will tax the patience of the House.
Chris Bryant
Further to that point of order, Mr Speaker. If what my hon. Friend says is true, the Prime Minister this afternoon inadvertently misled the House and must have an opportunity to apologise and correct the record.
Mr Speaker
If anybody has inadvertently misled the House, that person must correct the record, but I hope the hon. Gentleman will accept that I do not think it incumbent on me now to act as arbiter of whether it happened. The issue has been given a full airing. Both hon. Members are very experienced, are not backward in coming forward and can pursue this matter either through the use of the Order Paper or by other means in the days ahead. I do not in any sense seek to deny them the opportunity to do so.
If there are no further points of order, if the appetite has at last been satisfied—it is very important that Members have the opportunity to express themselves—we can now proceed. The Minister looks very relieved about that.
Crime (Overseas Production Orders) Bill [Lords]
Monday 3rd December 2018
(5 years, 4 months ago)
Commons ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 View all Crime (Overseas Production Orders) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 134(a) Amendment for Third Reading (PDF) - (15 Nov 2018)
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That the Bill be now read a Second time.
As a simple soldier, it is nice to follow a debate full of so many learned colleagues. I have sat in wonder at the lawyers and their questioning over the last two and half hours. It was incredibly generous of the Attorney General to give so much of his time and to answer so many of my colleagues’ questions. I fear that we cannot normally afford lawyers for that long, but I hope the House managed to get to the bottom of it all.
This year, Dr Matthew Falder was sentenced to 25 years in prison. His charges included 137 offences of encouraging child sexual abuse, blackmail, forced labour and possession of indecent images. He tricked his vulnerable victims into sending him images of themselves naked or partially clothed and then blackmailed them into sending increasingly sickening images. He traded these abuse pictures on “hurtcore” forums, whose users revel in controlling and inflicting pain on victims. These hurtcore sites—hidden dark web forums—are dedicated to the discussion, and the sharing of images and videos, of rape, murder, sadism, torture, paedophilia, blackmail, humiliation and degradation. Long delays in getting vital evidence to our law enforcement agencies help people such as Dr Matthew Falder to continue abusing vulnerable children. It is our duty to protect victims from people such as him as quickly as possible.
The Bill is a straightforward piece of legislation designed to remove the bureaucratic barriers we currently face in investigating and prosecuting serious criminals when evidence is held by companies based outside the UK. The Bill provides a new route to allow law enforcement agencies and prosecuting authorities quick and efficient access to electronic data held by overseas communication providers. As I am sure hon. Members are aware, communication service providers are increasingly based outside the UK, and although we can currently access data held or controlled by these providers using mutual legal assistance channels, these processes are often long and bureaucratic, delaying serious criminals being brought to justice. In some cases, that even leads to investigations being abandoned.
Under MLA, there are several obstacles to overcome before law enforcement agencies can obtain data for use in an investigation. The requests must go through both countries’ executing authorities and both countries’ central authorities before getting to the relevant CSP. It can take anything from six months to two years to receive what could be vital evidence, meaning that the prosecution of criminals such as child sexual abusers can be severely delayed, in which time they can continue abusing. Indeed, less than 1% of child sexual abuse content stored online is hosted on UK platforms, meaning that 99% is hosted on platforms owned by companies overseas. The Bill will ensure that law enforcement officers and prosecutors can more effectively investigate and prosecute these horrific offences, so that children in all our constituencies can be kept safe.
Officials in the Home Office have been working closely with operational partners to understand the scale of the problem. Child exploitation and abuse is a very real, very serious and growing epidemic. The National Crime Agency received more than 80,000 individual referrals of horrific online content from the tech industry in 2017, a 700% increase since 2012. In 2014, the NCA made more than 1,600 referrals to UK police forces following tech companies highlighting horrific online content. After just three years, in 2017, the figure rose to nearly 10,000. The agency estimates that in the UK a minimum of 66,0000 to 80,000 individuals present some kind of threat to children. In one operation, it worked with overseas partners to take down a site that contained more than 100,000 videos of child sexual abuse material that had been downloaded more than 1 million times.
All the case studies that I have been given make chilling reading. There are examples of people abusing children online—people whom our agencies struggle to identify and prosecute because of the delays in accessing the data that they need. It is our duty to do something about it and to protect those who are vulnerable online. Of course, online crime goes beyond child sexual abuse. Electronic messages in the form of texts or emails can incriminate arms dealers, drug traffickers, people traffickers and those involved in other types of serious crime, including terrorism. We must ensure that our laws reflect the modern, technological world in which we live.
The overseas production order process offers a much simpler and quicker alternative to MLA for obtaining certain types of electronic data. An overseas production order could be served directly on the relevant overseas CSP rather than via that country’s courts and central authority, which means that our law enforcement agencies and prosecutors will be able to gain access to the data that they need in a matter of days or weeks rather than months or years. The orders will operate in a similar way to domestic production orders. To that end, the Bill was designed to reflect existing domestic legislation as far as possible. Of course, the necessary stringent safeguards will exist to govern access to the data. That includes a requirement that UK courts must be satisfied that the data is of substantial value to the investigation or proceedings, and that there is a public interest in its being produced before an order can be granted.
For the power to make an overseas production order to be available, a relevant international agreement needs to be in place. We envisage that the first agreement will be with the United States, given that a large majority of CSPs are based in North America. Parliament will have an opportunity to scrutinise each international agreement properly and thoroughly before it is ratified in the usual way.
Members of the other place have already expressed their broad support for the Bill, but a non-Government amendment was made to clause 1(6), on international agreements. As it stands, the subsection is technically deficient, because it refers to data that the UK provides “under this Act”. The Bill is only about the UK’s outgoing requests for data from overseas providers, so the UK would not be providing data under it. Because that subsection would not achieve what the Government understand to be the Opposition’s intended effect, “this Act” will need to be amended to “the agreement.” I have listened carefully to the arguments advanced by Members of the Lords, and I look forward to working with Members of this House to address their concerns.
Members may accept that bureaucracy is sometimes a necessary evil, but when electronic data could be obtained in a much quicker way and further criminal activities could be prevented, it needs to be reduced. The overseas production order process, together with the international agreements that will underpin it, will remove the unnecessary bureaucratic delay that currently exists in accessing the same electronic data through MLA.
Delay extends the investigation when someone has molested children. Delay leads to continued offending, and those children continue to be abused. Delay leads to serious criminals absconding before they can be brought to justice. Delay could even lead to our law enforcement agencies and prosecutors issuing fewer MLA requests to seek evidential data as they lose faith in the system, and thereby failing to pursue these vile criminals. We do not want to end up in that position: such delay is unacceptable. That illustrates why the Bill is so important, and the heavy price that we continue to pay every day without it.
Mr Jim Cunningham (Coventry South) (Lab)
Other countries are guilty of delays—indeed, long delays.
Mr Wallace
Under the current system, we present an MLA to a country’s central Government authority, which will take it to that country’s courts. Once it is out of our hands, the pace will be that of the country concerned. Its courts will recognise the order and enforce it against the CSPs overseas, which are predominantly in the United States—for instance, Facebook and Google—and will then bring it back to us. That whole process involves many bureaucratic delays. For instance, there is the time that it takes for the case to go to the central authority and then to the courts, and the time that it takes for the volume of the orders to be decided, and sometimes challenged, in the courts. We are simply seeking to introduce a system whereby our police go to a court in the United Kingdom, the court makes the order, and the international treaties allow our orders to be recognised by overseas CSPs.
Mr Cunningham
May I pursue the point a little further? Can the Minister give us a rough idea of the timescale, and what the delays actually cost?
Mr Wallace
As I have said, some of them have gone on for years. Some cases are still sitting in courts overseas. It is predominantly a matter of months and years at present, and we want to reduce that to days and weeks. Every day on which we cannot access content in this area—and let us remember that it is the court, not me, that must be satisfied that a request from the police is valid—is a day on which, in many cases, the offenders are still offending. That is why we think the Bill is so important. It reflects the changes in how offending is happening, and the fact that it is now happening online. For many months, Members on both sides of the House have asked what more the Government can do about not only online radicalisation but online offending. This is a concrete step to ensure that we can do more to counter it.
The MLA process will continue to exist. It remains critical to other types of evidence that are not within the scope of the Bill and to any electronic evidence that may not be provided for by the relevant international agreement. However, one of the biggest pitfalls of the current system is the long wait to secure electronic data that, by its nature, can be shared very quickly. The Bill provides the solution in the form of an additional, streamlined alternative: the overseas production order.
I do not doubt that Members will support the crucial purpose of the Bill, which is to provide a significantly faster mechanism for obtaining vital electronic data that is held by overseas providers in order to prosecute the most serious offenders and to safeguard vulnerable people in our society from further unnecessary harm. I commend it to the House.
Nick Thomas-Symonds (Torfaen) (Lab)
The Minister began by saying that he was grateful for the contribution of lawyers during the previous two and a half hours. Alas, I have not had a chance to leave yet, but hopefully that contribution will continue.
Nick Thomas-Symonds
I doubt that even I could match the rates of the Attorney General.
As the Minister has explained, the purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as a court could if the information were located or controlled in the United Kingdom. That will be done via the overseas production order for which clause 1 provides. An order can be operative only if the UK signs a treaty enabling it to be exercised. UK law enforcement authorities will be able to apply for an order that requires the production of electronic evidence for the purpose of investigating or prosecuting crimes such as terrorism offences. At present, if UK law enforcement requires electronic data from another country, it must go via a mutual legal assistance treaty, but that process can be slow to complete.
I very much appreciate and accept that electronic information is crucially important for the investigation and prosecution of criminal offences, and indeed is gaining in importance. The Minister set out the case of Dr Matthew Falder and some of the horrific child sex abuse images found on various websites, and it is clear that having a smooth, fast, efficient process to obtain this information is important, which is why the Opposition support the aim of this Bill; we do need a faster system.
I should also point out that I recognise the particular importance of the United States, first because this is the country where so much of the data is held and so many communication services providers—CSPs—are based, and, secondly, because the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015.
The Minister knows that the Opposition are always happy to work with him in trying to reach consensus on matters, but there are aspects of this Bill about which I and my colleagues in the other place have concerns. First, I say to the Minister that we will be looking in Committee to pursue issues such as bulk data, confidential personal records and non-disclosure requirements.
There are also two other specific points of controversy that I will draw to the Minister’s attention now. The first of them relates to assurances on the use of the death penalty in cases where this country hands over data. The Bill is reciprocal, which allows countries with which a treaty is negotiated to seek a court order for electronic data stored in the UK to be transferred to another country. The current treaty is being negotiated with the US, and US law enforcement could apply via its courts for electronic data in the UK to be used as evidence in a particular case. There are currently 30 states in America that retain the death penalty.
I appreciate the Minister’s efforts to make this a more transparent process than has previously been the case, when Home Secretaries could, in private, make decisions in individual cases that are capital cases about handing over information. My right hon. Friend the shadow Home Secretary asked an urgent question on one issue in this House in July, which was due to a leaked letter from the Home Secretary to the then US Attorney General, Jeff Sessions. In the letter, the Home Secretary stated:
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”
The Minister responding to my right hon. Friend stated at the Dispatch Box:
“I can reassure the House that our long-standing position on the use of the death penalty has not changed.”—[Official Report, House of Lords, 24 July 2018; Vol. 792, c. 1612.]
While I accept that the Government cannot control whether another Government provide assurances that are asked for, they can control, where assurances are not forthcoming, whether information will be handed over, and that includes information which could lead to evidence being gathered for use in a court, as well as evidence itself.
My noble Labour colleagues in the other place tabled a strong amendment in this regard which passed by 208 votes to 185 and was added to the Bill. The effect of it is to prevent such handing over of information unless there are assurances that the death penalty will not be imposed. This is important for those of us on these Benches who oppose the death penalty in all its forms and are passionate about human rights here and around the world. Furthermore, while we are, quite rightly, focused on the United States for the reasons I have set out, this Bill could be used, alongside a treaty, as the basis for reciprocal information exchange with other countries around the world where the rule of law is not respected by the regimes in power there, making the need for safeguards in this Bill even more pressing.
Secondly, there is a concern regarding the protection of journalists’ confidential information.
Sir Edward Davey (Kingston and Surbiton) (LD)
I agree very much with what the hon. Gentleman has said on the death penalty reassurance point. He will note that the Minister said in his speech that the amendment was somehow defective. Does he agree that if that is so the Minister needs to make his case in detail and put forward another amendment so he can ensure that these death penalty assurances can be given?
Nick Thomas-Symonds
The right hon. Gentleman puts his finger on a crucial point. The amendment passed the other place with a comfortable majority, and if it is to be argued that there is, perhaps, a technicality that renders it defective, the Minister must identify it in Committee so the House can on Report at least take a firm view on it.
On the protection of journalists’ confidential information, while the Government have argued that provisions in the Bill match those of the Police and Criminal Evidence Act 1984, there are specific instances where it does not quite match PACE, and I will give a few examples, which no doubt can be explored in Committee.
Under PACE, notice is required in all applications for journalistic material, and there are two types: confidential or “excluded material” and non-confidential or “special procedure material”. However, under clause 12(1) of the Bill, provision is made to notify organisations only when the material is confidential journalistic material:
“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”
An application for non-confidential material—for example, where a journalist made a documentary and had some notes—often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally. The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.
Conditions must be met for the court to grant a production order for special procedure material under PACE, including the following: there are reasonable grounds for believing the material is likely to be of substantial value to the investigation; disclosure is in the public interest; and there are reasonable grounds for believing that the material is likely to be relevant evidence. While clause 4(5) and (6) include both public interest and “substantial value” tests, they do not include a “relevant evidence” test. That is again a matter we will look to pursue in Committee.
Adopting a threshold of what data is “relevant” to an investigation is both necessary and proportionate; as well as helping to enable clarity and consistency in cases, it is in line with human rights principles. Judges considering these applications will be familiar with the application of these recognised legal standards, and it would be a simple and sensible safeguard to bring these provisions in line with those under PACE.
Under PACE, tests are only limited to “investigations”, while the Bill is worded in such a way that the tests could be applied to include investigations and proceedings. It is not clear why this should be required right up to trial.
There is a further concern with regard to protection for “excluded material”, or journalistic material that is held subject to a duty of confidence. Under PACE, “excluded material” has a different set of conditions that need to be met. Why should that be different in this Bill?
Journalists play a fundamental role in holding those in power to account, and we must ensure that this legislation does not in any way suppress investigative journalism or the exposure of public interest matters. Thus while the Opposition do not oppose the Bill’s purpose and welcome measures for the speedy exchange of electronic data, we will be looking to put safeguards into the Bill on handing over information, to protect the clear will of the other place with regard to the death penalty assurances and to protect the long-cherished principle of confidentiality of journalists’ sources.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The way in which we communicate with one another has changed dramatically as a result of the digital age. The rapid growth of social media platforms has led to a sea change in how information is shared, conveyed and consumed. Indeed, the use of these platforms is ubiquitous in this House, and not a day goes by without Members’ WhatsApp messages being conveniently “leaked”. However, the convenience, accessibility and anonymity of these platforms has not been lost on those with more nefarious intentions, from terrorist groups looking to spread their hateful propaganda to child abuse rings sharing horrific images, and they are enthusiastically embracing this technology. As those who intend to cause harm change their methods of communication, so must our laws change to counteract that. The Bill will help us to keep pace with the increasing use of global electronic communications by criminals.
The current regime of mutual legal assistance is too slow and bureaucratic to make an effective contribution to an investigation. An MLA request to the United States can typically take nine months to produce what is being sought. This results in delayed or abandoned investigations and can delay people from being eliminated from criminal investigations. It is clear that when dealing with fast-moving dynamic criminal threats, this system is not fit for purpose. A nine-month wait for crucial information can be nine months too long. Overseas production orders, as provided by the Bill, will make the process far faster and more reliable, as they will get the information directly from companies. Rather than waiting for another country to consider whether it can comply with a request, then issue a court order or warrant and serve it, a judge in the UK will be able to go straight to a foreign company and get the information required in days, rather than months.
The new system that the Bill provides for will help us to tackle one of the most heinous crimes: child abuse. As the Minister outlined, there has been an exponential increase in the reports of child sexual abuse. As a paediatric consultant, I have treated far too many children who have fallen victim to this crime, sometimes with horrific physical injuries resulting from the abuse and with the mental health consequences that can occur at the time and later. The National Crime Agency estimates that a minimum of 66,000 to 80,000 individuals in the UK present some kind of threat to children. Each child is an individual, and each family can be badly affected. Any measure that helps to prevent one more child from suffering this fate deserves our full support. The Bill will ensure that child sexual abusers will see swift justice for their actions, and I welcome it.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The Scottish National party welcomes the aims of the Bill, with some caveats, and the Scottish Government believe that investigations and proceedings relating to serious offences in Scotland could benefit from the use of overseas production orders as a quicker and more streamlined process for obtaining electronic data. Notwithstanding the Minister’s point, which I am sure we will discuss further in Committee, we also welcome their lordships’ amendment that provides safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.
However, we are concerned about the lack of proper safeguards for journalistic material, and I hope that we will be able to strengthen the measures in that important area in Committee. Although I welcome the fact that an order must be for specific, targeted information, the fact that it will in all likelihood be able to access bulk datasets to retrieve that information is disappointing and goes against the strong points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) during the passage of the Investigatory Powers Act 2016. I shall return to those issues a little later.
The ability to apply for an overseas production order through the domestic courts will make the process for gaining cross-border access to electronic data faster and more reliable than the current processes, which rely on mutual legal assistance treaties. MLAs have been criticised for being too bureaucratic and time-consuming. The UK’s deputy national security adviser on intelligence, security and resilience to 2018, Paddy McGuinness—not the one we are all familiar with—explained in an interview how the current process causes difficulties for UK investigators and prosecutors. He stated:
“It does not make sense that criminals plotting a major drug deal, a murder, a kidnap, trafficking people or sexually abusing a child in the UK can have their communications intercepted if they communicate via text message, but if they use a US company’s services their data should be out of reach of UK law enforcement.”
Those of us who sat through the Committee stage of the Investigatory Powers Bill will never forget the fact that electronic information is becoming increasingly important to the investigation and prosecution of criminal offences, including terrorism. The companies that provide services that generate or store this data, such as Facebook, Twitter and Google, are often located outside our jurisdiction. This puts the data beyond the reach of existing domestic court orders, which either cannot be made when the data is not in or accessible from the UK, or cannot be served extra-territorially. According to Access Now, a digital rights campaign group, there has recently been a “huge growth” in MLA requests to access online records such as subscriber details, email content, metadata and social media from companies such as Google, Facebook, Yahoo and Twitter, which treat the vast majority of their data as being located in California and therefore subject to Californian jurisdiction.
According to the Home Office’s own figures, as of 2016—the figures are now out of date—the UK was party to 40 bilateral MLA agreements. As we have heard, the MLA process can be slow, requiring significant Government-to-Government liaison. This can cause lengthy delays, which can cause problems for investigations and prosecutions. Lord David Anderson, the then independent reviewer of terrorism legislation, has spoken of the severe delays in the process and recommended that the Government should seek to address deficiencies in access to material from overseas service providers and
“take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”
Detectives investigating serious offences, including murder, have commented that it is taking an “inordinate amount of time” to access evidence from Facebook. Cressida Dick has said that UK police forces have faced a “very protracted procedure” in cases where they have had to access information from organisations such as Facebook. Just recently, she stated:
“I absolutely think that in certain instances...law enforcement in the UK ought to have vital evidence which might bring someone to justice.”
The delays that detectives currently face are unacceptable and it is clear that the system needs to be improved. Lord Anderson spoke in his summing up about the international frameworks, and I would like the Minister to explain further why, Brexit aside, he was not interested in participating in the European protection order.
I move on to the amendment made in the Lords to clause 1, with which we wholeheartedly agree. It provides that in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied. Article 2 of the European convention on human rights—together with protocol 139, to which the UK is a signatory—provides for the total abolition of the death penalty. It is therefore regrettable that the Government tried to resist this amendment in the other place. We—and, I am sure, Labour Members—will resist any Government attempt to draw back from this position in Committee.
While we broadly welcome the Bill, we are concerned about lack of safeguards for journalistic material. We believe that the provisions in the Bill are inadequate in protecting confidential journalistic material. This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press. We are not alone in this, as the BBC has also raised concerns.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less sensitive journalistic material, which is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work. Where on-notice applications are permitted in cases of confidential journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately. Additionally, it is unclear whether any advice or support would be provided to a journalist in those circumstances. Under clause 13, a journalist cannot inform anyone of the application or its contents, and no provision is made for this information to be disclosed to a legal adviser or representative.
The BBC has some further asks. It wants the Bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material; to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases; to ensure that confidential journalistic material is protected, as under the current law for domestic applications; and to ensure that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection. I suspect that we will be looking at this further in Committee.
The other area that we will be seeking clarity on during the Bill’s later stages is the potential use of bulk datasets. As I have said, the SNP has argued strongly against the retention of bulk data sets, the vast majority of which are harvested from mainly innocent citizens. We argued that it is incumbent on the Government to prove that there is an operational case and that the powers are necessary and to ensure that the safeguards are rigorous. It would therefore be rather remiss of us to allow legislation to pass without the requisite safeguards around the accessing of such data.
To conclude, the MLA treaty system is not working in the modern age. Vast amounts of electronic data goes through Facebook, Twitter and other organisations, and a quicker and more streamlined process for obtaining data is required to investigate serious offences efficiently in the modern world. The ability to apply for an overseas production order through the domestic courts would make the process for getting cross-border access to electronic data faster and more reliable than currently. The Minister was uncharacteristically generous—I mean the Government, not him personally—in working with the Opposition when the Counter-Terrorism and Border Security Bill was in Committee, and I hope that will be repeated with this Bill so that we can move on together.
Vicky Ford (Chelmsford) (Con)
For nearly a decade, I have been a champion of a charity called the Internet Watch Foundation. It is not a paid role, but it gives me huge pride. The IWF was set up by the previous Conservative Prime Minister, and it identifies online images of child exploitation and then removes them from the internet. Last year, the IWF took down or acted on 132,000 reports of child sexual exploitation, 55% of which involved children who appeared to be under the age of 10 and one third of which involved rape or sexual torture. Child sexual exploitation is hideous, and when the images can be taken down, sources can be traced and lives can be saved. I am proud that less than 1% of such images are now stored in the UK thanks to the work of the IWF.
However, speed is vital when tracking images and getting hold of them means that our law enforcement authorities can then build cases and hold these evil people to account. This Bill will allow our law enforcement agencies to apply via the UK courts for a court order in other countries to get access to that data, and it will be crucial in countries such as the US, where we are already negotiating such an agreement. I am concerned that the Labour party’s amendments will create extra delays in the process when children’s lives are at risk. We should be working as hard and as fast as possible to get rid of this global crime. Britain needs to stand up and take the lead and save our children from exploitation on the internet. I am proud to support the Bill tonight.
Sir Edward Davey (Kingston and Surbiton) (LD)
I pay tribute to the hon. Member for Chelmsford (Vicky Ford). I think the Internet Watch Foundation does a fantastic job, and it is already saving lives, so everyone involved in the organisation deserves our thanks and gratitude. It is in that spirit that I rise to support this Bill and to say that the Minister was absolutely right to make his argument in the way that he did. The legislation goes beyond defeating the people involved in child sexual exploitation, and others committing horrendous nasty, violent crimes will also be caught by these important measures. Beyond that, the Bill will act against terrorism and so on, so the Government are absolutely right to pursue it.
All that is part of the way that we in this House need to support international co-operation against crime. Although this Bill will help to speed up the work that needs to be done via the courts to enable the investigatory bodies to get these criminals and hopefully stop such activities, I gently point out that the European Union already has many successful tools and instruments, and it is a shame that it looks like we are reducing our ability to use them.
However, in totally supporting the thrust of the Bill, I associate the Liberal Democrats with the gentle criticisms of the Labour and SNP Front-Bench spokesmen, who made important points about death penalty assurances and journalistic freedom that must be considered and put right in Committee and on Report. On the death penalty assurances, joint efforts between Labour and Liberal Democrat Lords secured that amendment, and it will take some proof to convince us that it is defective. Indeed, the Liberal Democrats would like to go further. Although the amendment was welcome, the fact that it relates to section 52 of the Investigatory Powers Act 2016 means that there may well be other treaties involving the sharing of collected electronic data to which it may not apply. Given the significance of that, it is important that we go as far as we possibly can. The UK must oppose the death penalty in all circumstances, and we need an assurance from the Government that the law is extremely tight.
Mr Wallace
Will the right hon. Gentleman therefore clarify his party’s position if we were in a negotiation with another country and the other country said, “Look, we cannot give you the death penalty assurances.”? Some 99.9% of the data requests under this Bill will be concerned with crimes of paedophilia or the other crimes that I described earlier. Should the death penalty become a bar, is the right hon. Gentleman saying that the UK should not enter into an agreement because of the rare occasions on which an offence may involve the death penalty? Would he sacrifice the 99.9% for that?
Sir Edward Davey
The Minister is being slightly sneaky. It is quite possible to take the two issues separately and deal with them separately. It is quite easy to see how one would ensure that the welcome measures in this Bill apply to the cases to which we all want them to apply while ensuring that the death penalty assurance, which ought to unite the House, is also dealt with properly.
I am sure that the Minister understands that Opposition Members in the other place and in this place are using this point to try to ensure that the Government move on this point. He will be aware of the cases of Alexanda Kotey and El Shafee Elsheikh from earlier this year, in which the Home Secretary—I acknowledge that this was revealed in a leaked letter—assisted the US to prosecute them without seeking death penalty assurances. That shocked people on both sides of this House, and the Minister is absolutely aware of that concern, so it is incumbent on those on the Treasury Bench to explain to and reassure this House that that cannot reoccur and that we will find ways through such issues.
Mr Wallace
I fully understand the right hon. Gentleman’s point. He talks about “our wish”, but he cannot speak for the other country that may be involved in forming an international agreement. They may say, “That’s fine. We know what you want, but we are not prepared to do that.” In that case, the decision becomes whether we want to use this legislation for the urgent and speedy data requests that happen 99.9% of the time for offences that are egregious and horrible but do not warrant the death penalty. He cannot speak for another country, so would he sacrifice the whole Bill?
Sir Edward Davey
I am afraid that the Minister is still trying to split hairs. I am sure that no one in this House wants to get in the way of measures that will ensure that we can work with other countries to tackle criminals. Equally, however, it is incumbent on the Government to find a way to ensure that what we heard from the Home Secretary earlier this year does not happen again. The Minister is in the Government and has the officials to come forward with proposals to be able to manage both those issues.
It does not seem beyond the wit of man and the clever officials in the Home Office to produce such proposals. If he is saying that the amendment made in the other House is defective because it has the problem he is raising with me, let Home Office Ministers come to the House in Committee or on Report to show that and to produce an alternative that deals with the matter, about which I am sure he shares my concern.
Mr Wallace
My point is that the moment for the House to look at that is not when considering this Bill but when whatever treaty or international arrangement we make with whatever country we need to make it with comes before the House for scrutiny. Then we can have a debate about whether the international treaty we have sought to give effect to this order is right for the balance of risk, but the generic primary legislation that allows an order to be made is not the right vehicle.
Sir Edward Davey
What the Opposition parties are saying very clearly to the Minister is that he has to make that case in Committee, just as the hon. Member for Torfaen (Nick Thomas-Symonds), the Labour party’s Front-Bench spokesman, made clear when I intervened on this very point. The Minister should make the case, but he should also explain how the Government will deal with the problem, which has arisen because of the actions of the Home Secretary not because of the actions of the Opposition.
We are concerned about the potential for this Bill to undermine protections for the freedom of the press. To be generous to the Government, what I think has happened is that, in pursuing a laudable aim that we all support, they went to the statute book and said, “Which statutes can we copy and paste to enable us to meet our objectives?” Rather than looking carefully at how, in domestic law, the Police and Criminal Evidence Act 1984 has carefully nuanced the use of the Terrorism Act 2000, Home Office officials, possibly because of the culture in the Home Office, just cut and pasted mainly from the Terrorism Act. That may have been a mistake, and there may have been no deliberate intention for it to have the consequences that now appear before us, so I gently say that I hope the Minister will go away and think about this. I invite him to meet right hon. and hon. Opposition Members, as well as representatives of the media to hear in detail the genuine concerns not just of BBC lawyers but of lawyers representing other media organisations.
We have heard from other Members about the relevant evidence test, which is in our domestic law and has been carefully developed over a period of years, but that test will not be applied to protect journalists with respect to material that comes from their investigations abroad. That is quite worrying if one looks at the practical examples. Take the case of Mark Duggan, for example. He was shot by the police in Tottenham in 2011, and the BBC obtained mobile phone footage of the aftermath from a witness. The BBC was ordered to turn over the footage and, because it was relevant evidence, the footage was handed over. Then an application was made for information that would reveal the identity of the source of that footage. The person who had shot the footage was understandably concerned for their safety, and the BBC successfully opposed the application by pointing to the relevant evidence test in the Police and Criminal Evidence Act. That test is not in the Bill, so there is a clear example that, by not being as subtle in this legislation as we are in our domestic legislation, there is a danger that journalistic freedom, as exercised abroad, will be curtailed.
The point about the notices is relevant, and it should worry the Minister because the way that notices work under domestic legislation is very helpful not just to journalists but to the police. Sometimes when the police put a notice to a journalistic organisation, that organisation will go back to the police and say, “You are asking for a huge amount, and we don’t really think it is necessary for your investigation. Let us enter a dialogue with you to narrow down your search so you can get information that will really help you, and therefore you will not have to waste so much time.” The notice actually turns out to be helpful in speeding up investigations. Given that that is the whole purpose of this Bill, the Minister should go away and look at that.
Moreover, it is not just about thinking of the police’s point of view in speeding things up; it is also about making sure the police know whether the evidence exists. The way some notices work at the moment is that the police go on a fishing trip. There is the example from Durham police, they applied to the BBC without notice. Durham police were eventually told that they could not do that and that, if they had submitted a notice, they would have learned that the material no longer existed. Again, the BBC was trying to save police time.
Some of the carefully constructed domestic law needs to be put into this internationally applying legislation in order to help the police and security services, not just journalists. I am sure this is just an unintended consequence, and I am sure there is no malice, so I hope this is the sort of issue that can be settled by a few meetings and a few amendments that garner support from both sides of the House. That is how scrutiny should operate in this Parliament, and I hope the Minister, with his usual generosity, will be open-minded to that approach.
Nick Thomas-Symonds
With the leave of the House, I will briefly respond to the debate. The hon. Member for Sleaford and North Hykeham (Dr Johnson) put her finger on it when she said that any measure that prevents one more child from suffering must be a laudable one, and she is absolutely right. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I often find ourselves working together on such Bills, and I look forward to working with him once again in Committee. He is right to raise the issue of journalists who have material that is sensitive but not necessarily confidential, which is clearly an issue to consider in Committee.
I commend the hon. Member for Chelmsford (Vicky Ford) for the work she has done in taking down horrific images from the internet through her work with the Internet Watch Foundation. I say to the right hon. Member for Kingston and Surbiton (Sir Edward Davey) that there is no difference of principle in opposition to the death penalty. I appreciate that there is an argument about other treaties, but there will also be an argument about what is within the scope of the Bill. We should do our best, on a joint basis, to protect the gain that has been made in the Lords, and I look forward to working with his party on that at later stages.
All I say to the Minister is that I hope we can proceed by working together, as we have on previous Bills. As the Bill goes into Committee, we will now be looking carefully at the issue of data access being proportionate and necessary, the issue of confidentiality and journalists’ sources and the vital issue of death penalty assurances.
Mr Wallace
With the leave of the House, I will close the debate on Second Reading. I thank hon. Members for engaging with the Bill, for their support of what it will achieve and for their considered comments.
Overseas production orders will be vital in ensuring that criminals do not remain at large for longer than is necessary due to delays in accessing electronic content data held overseas. Overseas production orders also reflect the technological developments of recent years. The use of modern electronic communication technologies by serious criminals to perpetrate their crimes and to seek to evade justice is increasing exponentially. This means that the evidence needed to convict such criminals is increasingly in the form of emails, Facebook messages, images stored with providers like Dropbox or elsewhere in the cloud, and similar electronic content data. UK law enforcement agencies and prosecutors now need a faster, 21st-century process for obtaining such evidence, not least to protect victims of child sexual abuse living in our communities and in our constituencies.
The length of time it currently takes to obtain electronic evidence leaves child victims to be abused while our dedicated law enforcement agencies and prosecutors navigate unnecessary bureaucracy. Bureaucracy prevents us from getting to the heart of an investigation sooner and puts more children at risk. The longer it takes, the longer these vile criminals are free to carry on offending. We must prioritise the safeguarding of the most vulnerable people in our society as far as possible.
I will now briefly address the comments of hon. Members. The hon. Members for Torfaen (Nick Thomas-Symonds) and for Paisley and Renfrewshire North (Gavin Newlands) and the right hon. Member for Kingston and Surbiton (Sir Edward Davey) all spoke about journalistic data. I absolutely hear what they say, and will give substantial consideration to their ideas and suggestions. I can perhaps provide some clarity on this. I do not think that, as the right hon. Member for Kingston and Surbiton suggested, officials picked this off the top of their heads; it was in not only the Terrorism Act 2000, but the Proceeds of Crime Act 2002. As with a lot of different case law, there have been different developments on the definitions of “data” and “confidential data” as it relates to journalistic material. Of course, the substantial value and public interest test is already in place to ensure that data relevant to a particular investigation or proceedings can be the subject of an access production order, but I am happy to discuss this further in Committee.
The hon. Member for Paisley and Renfrewshire North talked about a number of things. First, he asked why we had not opted into the European protection order scheme, by which I assume he means the Europe e-evidence proposals. The Government chose not to opt into the e-evidence regulation as it is not clear that the new EU legislation will be a practical and effective way to address the global issue of providing lawful access to data held anywhere in the world. Clearly, however, I agree with the principles, which is why we are introducing this Bill.
The hon. Gentleman also raised the issue of bulk data. An application for an overseas production order must specify what data is being sought. The judge approving the order must be satisfied that the data requested is of substantial value to the proceedings or investigations and that it is in the public interest for the data to be obtained. I know the hon. Gentleman may not be satisfied by that, but the hon. and learned Member for Edinburgh South West (Joanna Cherry), being a barrister, will no doubt be absolutely supportive of judicial discretion. Interestingly, people in this House often hold strong views on this—I am a great believer in judicial discretion—yet when we ask them to make that decision about public interest or certain tests, the same people sometimes seek to restrict that judicial discretion. I trust our judiciary and believe that in this environment of a bulk data request and so on, if this is laid by our law enforcement agencies before the court, the judge can use his or her discretion to make that decision, if it is in the public interest, and the police and law enforcement satisfy the requests made.
My hon. Friends the Members for Chelmsford (Vicky Ford) and for Sleaford and North Hykeham (Dr Johnson) were absolutely right about the potential damage that the online environment is doing to our young people and the tools that the internet gives some persistent offenders to exploit and abuse people, both adults and children. I mentioned Dr Matthew Falder at the opening of this debate. To see that case in detail is disturbing, and it will stay with me for most of my life. We know that he affected people’s lives, not just at home in the UK, but across the world, including by encouraging people to commit suicide and so on. He set up chatrooms where the qualification for entry was for people to bring their own abuse images into the chatroom—people were tasked with abusing children and bringing those images in. These are the people this Bill is targeted at, and every day we cannot deal with them is a day they continue to abuse.
The right hon. Member for Kingston and Surbiton, and the hon. Members for Torfaen and for Paisley and Renfrewshire North asked about the issue of the death penalty. I understand the importance of it and the key principle that people hold on it. The right hon. Gentleman was a member of the first Government who published the overseas security and justice assistance guidance—OSJAG. This is human rights guidance on requests for evidence and it contains all the guidance for law enforcement and government on the extent to which we seek and uphold our principle on the death penalty. I am happy to debate this in Committee. It does, however, reflect the issues and challenges we face as to balancing our security with our belief on human rights. This affects any Government, including the last Labour Government, who did not have OSJAG but still believed there were exceptional circumstances when assurances need not be sought. That is why I will welcome the discussion in Committee, but I make the point to Members that this Bill is an enabling Bill. It is, in effect, a plug for international agreement that we will then go and negotiate around the world, depending on where risk comes from and need. Both Houses will get a further chance to scrutinise those individual agreements and we can then ascertain whether they uphold our principles. I look forward to debating with interested Members in Committee, and I commend this Bill on Second Reading.
Question put and agreed to.
Bill accordingly read a Second time.
CRIME (OVERSEAS PRODUCTION ORDERS) BILL [LORDS] (PROGRAMME)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Crime (Overseas Production Orders) Bill [Lords]:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 18 December 2018.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Amanda Milling.)
Question agreed to.
Business without Debate
Mr Deputy Speaker (Sir Lindsay Hoyle)
With the leave of the House, I wish to put motions 3 to 6 together.
Ordered,
That the Measure passed by the General Synod of the Church of England, entitled Ecumenical Relations Measure (HC 1687), be referred to a Delegated Legislation Committee.
That the Measure passed by the General Synod of the Church of England, entitled Church of England (Miscellaneous Provisions) Measure (HC 1688), be referred to a Delegated Legislation Committee.
That the Measure passed by the General Synod of the Church of England, entitled Church Property Measure (HC 1689), be referred to a Delegated Legislation Committee.
That the Measure passed by the General Synod of the Church of England, entitled Church of England Pensions Measure (HC 1690), be referred to a Delegated Legislation Committee.—(Amanda Milling.)
Mr Deputy Speaker
With the leave of the House, we will take motions 7 and 8 together.
Ordered,
Public Accounts
That Gillian Keegan be discharged from the Committee of Public Accounts and Anne-Marie Trevelyan be added.
Treasury
That Stephen Hammond be discharged from the Treasury Committee and Mr Steve Baker be added.—(Bill Wiggin, on behalf of the Committee of Selection).
Draft European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018
(5 years, 4 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Energy and Clean Growth (Claire Perry)
I beg to move,
That the Committee has considered the draft European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018.
It is a pleasure to serve under your chairmanship, Mr Sharma. We are discussing what I will refer to as ERICs, as opposed to Ernies. European research infrastructure consortia are bodies set up to support major international science and research collaboration within the European Union, and they provide a legal structure enabling countries and organisations to work together to tackle international research challenges. They are primarily funded through ERIC member contributions, not the EU budget, and they are expected to last for many years, often having lifetimes of decades. Crucially, any country can be a member of an ERIC, and as the consortia are not funded through an EU budget, there is no requirement to contribute to an EU budget to receive funding into an ERIC structure.
The UK is a long-standing member of the ERIC structure. We host two ERICs—the European social survey based at City, University of London, and Instruct, an ERIC looking at integrated structural biology based at the University of Oxford—and we are a member of 12 consortia. By the end of last year we had contributed roughly £64 million to the structure. Our total annual contribution is approximately £1.6 million a year, which does not include our financial contributions to the European spallation source ERIC, a large consortium to which we have contributed £165 million so far.
The projects are extremely important. They feed into research communities right across the UK, including in marine sciences, astrophysics, human health, welfare and societal changes, and they provide world-class collaboration for our world-leading scientists. For example, the integrated structural biology ERIC gives the UK scientists working within the scheme access to a flagship nanotechnology facility in Belgium—technology that we do not have access to domestically.
The draft regulations make technical and drafting amendments designed to facilitate our ongoing participation in ERICs, regardless of the outcome of our negotiations with the EU. Participation in an ERIC is open to any country; as such, there is no legal reason why the UK could not continue to participate in the projects. However, we would need to satisfy the requirement for third-country membership, and the instrument before us addresses deficiencies in the retained EU ERIC regulation—the legal framework for the creation and operation of the consortia—that will arise as a result of the United Kingdom’s exit from the EU.
The instrument does not implement new policy; it enables us to participate, should we wish to, in the future. For example, the instrument removes provisions that are for the European Commission to enforce, such as when an ERIC changes its statutes. Additionally, provisions that relate to Commission activities, such as the production of annual activity reports by ERICs, are also removed. The amended regulations will ensure that ERICs continue to have the same attributes, such as legal personality, as they have under the ERIC regulation as it applies on exit day.
The European Statutory Instruments Committee considered the regulations, reporting on 5 September. It noted the role of the European Court of Justice in ERICs, and I want briefly to explain why the SI makes no amendment to that role post-exit. Membership of any ERIC requires recognition that the European Court of Justice has a limited role. Just as if we had a trade deal with a third-party country, there would be conversations and an appeal route to a third-party adjudicator. Specifically, should a dispute arise between ERIC members, or between the ERIC and a member, the Court could be asked to form an opinion on whether an ERIC member is fulfilling its obligations under ERIC statutes.
That is completely different from the role of the Court of Justice of the EU in ruling on compliance by EU member states in the treaty on European union and the treaty on the functioning of the European Union, which refers to the broad acquis of law underpinning those treaties. This provision refers specifically to the obligations under the ERIC statutes, which is not an area where penalties could be imposed for non-compliance. Any remedy would be applied by the individual ERIC in line with its own rules, which the members of the consortium agree to sign up to when they join. Should we choose to remain as a member of existing ERICs or to enter additional ERICs and pick up the benefits that our world-class scientists would like to achieve, the influence of the ECJ in adjudicating on the statutes of the ERIC would have no influence on UK sovereignty. We remain free to leave ERICs at any time of our choosing, although there are rules about when we can leave, which would be entirely consistent with those multimillion-pound research projects.
The UK’s leadership in science and innovation is supported and strengthened by international collaboration, and projects such as ERIC facilitate such collaboration. In turn, that helps further to consolidate our world-leading reputation for science, research and innovation. Should we decide to retain membership of existing ERICs post-exit or to join new ones, we would need to comply with those bodies’ membership rules, which is the purpose of the statutory instrument.
I hope that we confine remarks in Committee to specific technical points on ERICs, rather than have a broader conversation about European science and innovation, which I am not going to answer today. I hope that we can reach agreement, because those bodies remain an important part of our international scientific collaboration. I commend these regulations to the Cttee.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
It is a real pleasure to serve under your chairpersonship on such an important subject, Mr Sharma. With the article 50 deadline so close and the Government in such disarray—as demonstrated by the recent resignation of the former Science Minister, the hon. Member for East Surrey (Mr Gyimah)—we need more than ever the process of scrutiny that statutory instrument Committees allow.
Science is a great British success story, supporting jobs and growth across the country. From Newton to Hawking, and from Lovelace to Franklin, British scientific giants have bestrode the world. It is a global success story: in science and innovation, we are the partner of choice of our European neighbours and countries across the world. British science has benefited from what the director of the Campaign for Science and Engineering, Dr Sarah Main, describes as:
“A web of collaborations, shared facilities and cross-border research programmes…which has led to a rich flow of ideas, people and research funds into the UK.”
According to the Government’s 2013 report, the increasing internationalisation of UK science, powered in part by European collaboration, has allowed us to surpass the United States in science productivity.
As the Minister has explained, ERICs are one of the legal forms that underpin this collaboration, and they are crucial to the success of British science. We take a leading role in many pan-European organisations, with facilities often located in our country. Instruct-ERIC, for example, was set up to support structural biology research infrastructure, and has six centres in the UK. ECCSEL ERIC, which provides laboratory infrastructure for important research in carbon capture and storage, has a near surface gas monitoring facility and six carbon dioxide capturing facilities in the UK.
Even when such facilities are not located in the UK, participation in ERICs gives our researchers access to facilities, data, knowledge and contracts that would otherwise be inaccessible. That is beneficial not just for public research organisations but for the private sector, both through the tendering of construction opportunities to private businesses and through the use of ERICs to disburse funding for research projects, to which private organisations may be contributing. ERICs are therefore an important interface between research funding at the state and pan-European levels and the research endeavours of public and private institutions. Strengthening that interface will be crucial if we are to achieve the ambition shared on both sides of the House of meeting—and on the Opposition side, surpassing—the OECD average of 2.4% of gross domestic product invested in research and development.
The draft regulations are an attempt to pave the way for the continuation of current laws governing the establishment of ERICs when we leave the European Union. I will not go into the details that the Minister set out, but the Opposition are satisfied that the SI does not represent a policy change. The Government’s impact assessment says that the SI will not have a direct impact on business and research organisations, and that is true in the strictest sense. The SI does not change the process for joining an ERIC, or the rules under which they are governed. Crucially, as the Minister set out, countries do not need to be members of the European Union or its framework programmes to be a member of an ERIC, so we will continue to participate in ERICs even if we are not able to join Horizon Europe as an associate member.
However, I emphasise that it would be naive to assume, as the Minister seems to be doing, that the level of our participation in European framework programmes will have no impact on whether the UK continues to join new and existing ERICs. Science funding and investment have already been severely knocked by the chilling impact of not knowing what our relationship with Horizon will be after Brexit. Funding for UK science from Horizon 2020 was down by a fifth last year, while more and more universities tell me that Brexit chaos is freezing them out of funding opportunities. It is vital that we secure associated status with Horizon Europe, as CaSE and the Royal Society have called for and as Labour has pledged. I am glad that the Government are committed to seeking associated status, but am concerned by the lack of any apparent contingency plan if negotiations fail to secure that status.
That uncertainty is compounded by confusion at domestic level. Despite their lofty rhetoric on science spending, the Government have not produced a long-term funding plan. Disbursement through the challenge fund is uneven and unpredictable, while measures to support innovation through the tax code are continually being introduced and then axed. Finally, with the Government’s long-anticipated White Paper on migration supposedly around the corner, British science needs clarity on how and to what extent it will be able to access European talent after breakfast—Brexit. [Hon. Members: “Ah!”] Perhaps we will just have breakfast instead.
In conclusion, the Opposition will approve the SI, as we believe it is necessary for the continuing functioning of our science sector post-Brexit. However, the Government would do well to consider what else they need to do to ensure that we continue to be the scientific partner of choice for the world.
Ms Angela Eagle (Wallasey) (Lab)
It is a pleasure to have you in the Chair for this Committee, Mr Sharma.
I am a member of the House of Commons European Statutory Instruments Committee, which decided to refer this SI back to the Government and ask them to have an affirmative debate on it—perhaps that is why I am here. We did not do that because we wanted to cause trouble; rather, we felt that the structure the SI amends is so important to the UK that we needed some explanation on the record from the Minister for Energy and Clean Growth, which would say a little bit about future policy. She has begun to do that, but I wanted to ask her a few questions about how she and her Department see our ongoing approach to ERICs evolving over time.
The Minister rightly says that two ERICs are hosted in this country. What effect, if any, will our leaving the European Union have on the size and workload of the ERICs that are hosted here? Might there be moves to take them somewhere else as a result of our move from EU member status to non-EU member status? Will she comment publicly on whether our move from EU member status to third-country status will have any implications for how the ERIC process works, especially with respect to the setting up of new ERICs? Do she and her Department have in mind policy changes, administrative changes or changes of approach, rather than a technical amendment, which is important but not the whole story, to ensure that, in the move from EU member status to third-country status in the ERIC structure, we shore up our involvement?
Does the Minister feel that, as a third country, there is any possibility that we will host a new ERIC? Given that we do not have any idea of what our immigration policy will look like, as the White Paper on that has been delayed until after the meaningful vote in a couple of weeks’ time, as my hon. Friend the Member for Newcastle upon Tyne Central said, will the Minister indicate her Department’s approach to immigration policy? When I was campaigning for this country to remain in the EU, I went round a lot of universities and one of the main things I was told was that it would be catastrophic for research and being leaders in the field to have a narrow approach to immigration. In particular, there must be collaboration across borders. Those of us who have been involved in science policy know that having cross-border co-operation without barriers is key to keeping this country at the forefront of future policy, as knowledge becomes more and more specialised.
Will the Minister give us a few indications of her Department’s thoughts on these important issues, so we can set a policy context for the draft regulations? The issue is not that the regulations are not technical—they are—but that the context in which ERICs have operated in the past will now change. Will the Minister tell us a bit more about her thought process and her Department’s approach to how we deal with trying to ensure that our commitment to ERICs and our capacity to be involved and to have a leading role in new ERICs is projected effectively in the future in the new context?
Claire Perry
I thank hon. Members for that series of interesting and helpful questions, which I will try to answer.
There was a series of questions about our post-Brexit position on ERICs and the scientific leadership that we wish to exert. It is absolutely right that we continue to discuss this. I should have declared an interest, Mr Sharma: I am married to a world-leading scientist—Professor O’Neill of Cambridge University—who has participated not in ERICs, but in a number of Europe-wide research projects. I know very clearly what the risks and benefits are of continuing or not continuing international collaboration.
The point about the talent pool is significant, because of course scientists are not fungible. Part of the reason why we have been able to attract so much investment, both domestically from private sector sources and from overseas, including Horizon—as of 28 September, we were second only to Germany in the funding commitments we have received—is that we have an astonishingly strong science and innovation research base. Arguably, we need to focus on scale-up to get from research to commercialisation, but that has nothing to do with our position in the European Union; it is to do with our will to harness industrial investment after early stage research and development.
I and the Department remain very positive about the outlook for the UK’s role in participating in world-leading science and innovation. We have taken a couple of domestic measures, including providing an additional £7 billion to the public funding of R&D from 2017 to 2020, which I understand to be the biggest increase that has ever been made. We are also working through sector deals to try to align the principles of the industrial strategy with the very practical steps that different sectors are taking forward, including on R&D-specific projects, places and individuals funded through those sector deals. It feels to me entirely fundamental to the UK’s progress—I believe that this should have happened regardless of our decision on Brexit—to harness that world-leading science and innovation base in a way that delivers more of an alignment with the industrial strategy.
Chi Onwurah
I thank the Minister for the tone of her response, but I take issue with her proposition that the ability of UK companies to scale up is not related to whether we are part of the European Union. Funding is one thing, but access to talent and potential markets for scale-ups are obviously related to whether we have access to one of the world’s biggest trading blocs.
Claire Perry
The hon. Lady is right. It is why the proposed framework is to have as close as possible alignment on goods. I know she speaks to many universities and researchers, so she will know that we have an endemic problem with scale-up. What tends to happen is that the intellectual property is sold overseas before the commercialisation stage, and often the full commercialisation of projects and services is done by overseas companies, rather than the IP being held back in the UK—but I am digressing slightly. Forgive me, Mr Sharma.
I am going to address the migration points. I thank the hon. Member for Wallasey for her contributions to the European Statutory Instruments Committee. I know she has a lot of stuff going on with that, and these are important questions. Third countries cannot host ERICs, so there is a question about hosting versus participation. We host two ERICs and we are members of 12. This relates to our future negotiations, which are spelled out in the political declaration, but we have expressed a desire to continue to host. We hope that our special status as one of the world leaders—I cannot remember the patent numbers, but I believe we are up there with economies very much larger than ours—will allow us some special status for ERICs hosting. I believe that is part of the future negotiations.
Ms Eagle
Clearly it is worrying that third countries cannot host ERICs given that we are about to become a third country. Will the right hon. Lady indicate the sort of timescale and approach or process that will be in place for trying to negotiate ERIC 2 or whatever we want to call it?
Claire Perry
I will clarify my remarks to the hon. Lady in writing, but I believe that forms part of the negotiation we are having around Horizon 2020 and the entire science and innovation piece. It is part of the ongoing negotiations before we have a legal political declaration, if that makes sense, on a future framework, but I will clarify that in writing to her.
The hon. Lady asked me a very important point about migration. She is absolutely right. We have benefited enormously from the incredible talent of those who come to study in the UK and who often choose to remain and work here, and that absolutely must continue. She also asked me to say a little bit about policy. I do not want to pre-empt my right hon. Friend the Home Secretary, but essentially the policy position we have taken on migration is one that is entirely consistent with wanting to remain a world leader in science and innovation, and that has been stated in every public declaration. It has also been reiterated in every conversation we have.
Since January 2018, we have made a series of changes to the immigration rules to support that objective. For example, we have doubled the number of exceptional talent tier 1 visas for those qualifying in science, engineering, the humanities, medicine and so on. We have expanded the number of institutions that can sponsor international researchers, making it easier for research councils to bring in researchers for two years under a temporary work route. We have waived the resident labour market tests for supernumerary international researchers and members of sponsored research teams, and we have enabled faster switching between students visas, which are tier 4, and highly skilled tier 2 visas.
Ms Eagle
Obviously, any expansion and increased flexibility in that area will be very important to maintaining the UK’s leading place as a centre of scientific and research excellence. The Minister will probably be more familiar with this than I am, given her announcement regarding her personal arrangements, but when I went around the country meeting university researchers, what I heard about that concerned me more than anything else was the bureaucracy involved in granting visas. It takes much longer to get researchers from non-EU countries, as well as to get UK researchers into third countries. There is a bureaucracy issue, a timing issue and uncertainty about whether visas will be granted, which makes it much easier to organise research where there is free movement. That is the key issue that will bind us in the future if we do not get it right.
Claire Perry
As always, the hon, Lady makes an important point. She is right to distinguish between EU and global talent pools. Of course we want to attract the best and the brightest, wherever they come from, to work in the research and innovation sector, to be part of the industrial strategy, and to benefit the wider-UK economy.
Something that is not in my briefing notes but which the hon. Lady might find interesting is that one of the challenges, I am told, is that not enough home-grown students, particularly women, are emerging from our education system to be grown into those research and innovation positions. One might hope that, in time, we will see more acceleration of women and others through our education system, until we reach the point where we can fill more of those important research positions with UK talent. Regardless, we will still be open to the best and the brightest supporting our world-leading research and innovation base, and as we have been absolutely clear, both in public and in conversations across Government, we want to make sure that we work closely with the research sector to ensure that our visa arrangements are closely aligned to the sector’s needs. She makes an important point: it is not just the availability of research, but the ease of access. If we are bidding in a global talent pool, we must make sure that we have streamlined activities.
Toby Perkins (Chesterfield) (Lab)
I understand what the Minister said a moment ago about not wanting to pre-empt the Home Secretary. Many of us wish that he had in fact pre-empted her and had his White Paper out in time for the meaningful vote. I note that many of the statements in part two were made by the person described as the Minister of State for Universities, Science, Research and Innovation, the hon. Member for East Surrey, who resigned from the Government a few days ago. Can the Minister tell us whether he would have been in this Committee today had he not resigned from his post, and what we should read into the fact that he has made a number of statements telling us that we should not be worried, but now has so little confidence in the Government’s approach that he no longer wants to be a part of it?
The Chair
Order. Please keep to the regulations we have in front of us. The hon. Gentleman did not, and the Minister need not reply to his intervention.
Chi Onwurah
In the context of ERICs, I feel that it is important to emphasise that we all wish for more women not just to come forward, but to be encouraged to be part of science. Speaking as an engineer myself, I know the virtue of collaboration is that different people from different disciplines and different backgrounds come together to create innovation. That is not an issue with regard to whether or not home-grown women are accessing the skills pool.
Claire Perry
The hon. Lady is absolutely right. I think she rather supports the point that I made earlier, which is that scientists are not fungible. That is why I believe that we should maintain very strong confidence in the UK’s incredible reputation in science and innovation. We have world-leading science bases and research, and that is entirely strengthened by collaboration, as she said. Projects such as ERIC will help to facilitate such collaboration. I would be grateful to the Committee for allowing the regulations to proceed, because they are simply a technical clearing out of some rules that will no longer apply, and they will enable us to maintain our membership of ERICs post-exit, or to join new projects. I therefore commend the regulations to the Committee.
Question put and agreed to.
Ministerial Corrections
(5 years, 4 months ago)
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Treasury
(5 years, 4 months ago)
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Mel Stride
The hon. Lady makes an entirely reasonable request for that information. As I indicated, I am happy to provide it to her. In fact, divine inspiration has just arrived—I have an answer; I knew it was lost somewhere in my mind. There have, in fact, been 12 opinions, all of which have been supportive of HMRC. If she would care for any further information, I am happy to provide it outside the Committee.
[Official Report, Finance (No. 3) Public Bill Committee, 27 November 2018, c. 28.]
Mel Stride
If it is in order, Ms Dorries, I will give the hon. Member for Oxford East an additional piece of information on the issue of referrals to the panel. There were nine cases rather than 12; there were 12 opinions on those nine cases, all of which supported HMRC. That might explain how I had a figure of nine while the hon. Lady was focused on 12.
[Official Report, Finance (No. 3) Public Bill Committee, 27 November 2018, c. 29.]
Letter of correction from the Financial Secretary to the Treasury:
Errors have been identified in my responses to questions raised during the debate on clause 2, Corporation tax charge for financial year 2020.
The correct responses should have been:
Mel Stride
The hon. Lady makes an entirely reasonable request for that information. As I indicated, I am happy to provide it to her. In fact, divine inspiration has just arrived—I have an answer; I knew it was lost somewhere in my mind. There have, in fact, been 16 opinions, all of which have been supportive of HMRC. If she would care for any further information, I am happy to provide it outside the Committee.
Mel Stride
If it is in order, Ms Dorries, I will give the hon. Member for Oxford East an additional piece of information on the issue of referrals to the panel. There were nine cases rather than 12; there were 16 opinions on those nine cases, all of which supported HMRC. That might explain how I had a figure of nine while the hon. Lady was focused on 12.
Justice
(5 years, 4 months ago)
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Rory Stewart
I want to emphasise that the phrase “minor injuries” is derived from Judicial College guidelines, not from the Government or any political party. It is simply a long-standing convention to refer to injuries of under two years’ duration as minor injuries, and that relates to Sentencing Council guidelines for injuries of under two years’ duration.
[Official Report, 23 October 2018, Vol. 648, c. 216.]
Letter of correction from the Minister of State, Ministry of Justice, (Rory Stewart).
An error has been identified in a response I gave during the debate on the Report stage of the Civil Liability Bill [Lords].
The correct response should have been:
Rory Stewart
I want to emphasise that the phrase “minor injuries” is derived from Judicial College guidelines, not from the Government or any political party. It is simply a long-standing convention to refer to injuries of under two years’ duration as minor injuries, and that relates to Judicial College guidelines for injuries of under two years’ duration.
On the arguments of the hon. Member for Hammersmith about the levels of the tariffs, we have attempted to achieve a reduction in the tariff at the lower end. For example, an individual who suffers an injury of under three months’ duration could receive damages considerably less than those in the current guidelines, but I hope that the hon. Gentleman accepts that, as we approach a duration of two years, the compensation offered begins to merge much more closely with the existing guidelines at a level of £3,600.
[Official Report, 23 October 2018, Vol. 648, c. 216.]
Letter of correction from the Minister of State, Ministry of Justice, (Rory Stewart).
An error has been identified in a response I gave during the debate on the Report stage of the Civil Liability Bill [Lords].
The correct response should have been:
Rory Stewart
On the arguments of the hon. Member for Hammersmith about the levels of the tariffs, we have attempted to achieve a reduction in the tariff at the lower end. For example, an individual who suffers an injury of under three months’ duration could receive damages considerably less than those in the current guidelines, but I hope that the hon. Gentleman accepts that, as we approach a duration of two years, the compensation offered begins to merge much more closely with the existing guidelines at a level of £3,910.
Justice
(5 years, 4 months ago)
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John Howell
Earlier this afternoon, the Minister will have heard my hon. Friend the Member for Croydon South (Chris Philp) give an example of how he was approached—hassled, in fact—by a claims management company. I, too, have been in that situation for a fictitious accident and I still get calls about that. Is dealing with this not one of the real ways that we will be able to prevent our being the whiplash capital?
Rory Stewart
My hon. Friend makes a very good point, which has been made by the shadow Front-Bench team and others: dealing with claims management companies is going to be a central part of this. Consultation has taken place on this, and measures have been taken against claims management companies. A significant issue remains, which we are consulting on and trying to resolve—to be honest with the House, it is the fact that many of these calls come from foreign jurisdictions, so the challenge is trying to work out the best way to deal with that.
[Official Report, 23 October 2018, Vol. 648, c. 228.]
Letter of correction from the Minister of State, Ministry of Justice, (Rory Stewart).
An error has been identified in a response I gave during the Third Reading debate on the Civil Liability Bill [Lords].
The correct response should have been:
John Howell
Earlier this afternoon, the Minister will have heard my hon. Friend the Member for Croydon South (Chris Philp) give an example of how he was approached—hassled, in fact—by a claims management company. I, too, have been in that situation for a fictitious accident and I still get calls about that. Is dealing with this not one of the real ways that we will be able to prevent our being the whiplash capital?
Rory Stewart
My hon. Friend makes a very good point, which has been made by the shadow Front-Bench team and others: dealing with claims management companies is going to be a central part of this. Consultation has taken place on this, and measures have been taken against claims management companies. A significant issue remains, which we are trying to resolve—to be honest with the House, it is the fact that many of these calls come from foreign jurisdictions, so the challenge is trying to work out the best way to deal with that.
Rory Stewart
I have the following on a formal piece of paper here, so that I can make my Pepper v. Hart statement to make sure that this is clear for the judiciary. In subsection (3), therefore, we have excluded those soft tissue injuries in the neck, back or shoulder which are part of or connected to another injury, so long as the other injury is not covered by subsection (2). The effect of subsection (3) would be to exclude, for example, damage to soft tissue which results only from the fracture of an adjoining bone or the tearing of muscles arising from a penetrating injury, which would otherwise fall within subsection (2). It has been suggested that the words “connected to another injury” in subsection (3)(a) could mean an injury resulting from the same accident. There is therefore a concern that a number of soft tissue injuries that would otherwise fall under the definition of whiplash injury will be excluded, and so not subject to the tariff of damages, simply by reason of being suffered on the same occasion as a whiplash injury.
[Official Report, 23 October 2018, Vol. 648, c. 229.]
Letter of correction from the Minister of State, Ministry of Justice, (Rory Stewart).
An error has been identified in a response I gave during the Third Reading debate on the Civil Liability Bill [Lords].
The correct response should have been:
Rory Stewart
I have the following on a formal piece of paper here, so that I can make my Pepper v. Hart statement to make sure that this is clear for the judiciary. In subsection (3), therefore, we have excluded those soft tissue injuries in the neck, back or shoulder which are part of or connected to another injury, so long as the other injury is not covered by subsection (2). The effect of subsection (3) would be to exclude, for example, damage to soft tissue which results only from the fracture of an adjoining bone or the tearing of muscles arising from a penetrating injury, which would otherwise fall within subsection (2). It has been suggested that the words “connected to another injury” in subsection (3)(a) could mean an injury resulting from the same accident. There is therefore a concern that a number of soft tissue injuries that would otherwise fall under the definition of whiplash injury will be excluded, and so not subject to the tariff of damages, simply by reason of being suffered on the same occasion as a non-whiplash injury.
Leader of the House
(5 years, 4 months ago)
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Thangam Debbonaire (Bristol West) (Lab)
On 9 May, 12 July and 6 September, I asked the Leader of the House about the whereabouts of the immigration Bill. I think that there is still no answer, but let me give her a break and ask her about a different Bill. Would not 25 November, International Day for the Elimination of Violence Against Women, be a terribly good day on which to lay the domestic abuse Bill before Parliament?
Andrea Leadsom
The hon. Lady will know that the Government have published a draft Domestic Violence and Abuse Bill. It is intended to be groundbreaking, and will be extremely comprehensive. We want to be sure before we introduce it that we have taken into account all considerations in our efforts to put an end to the appalling problem of domestic violence once and for all.
[Official Report, 22 November 2018, Vol. 649, c. 1035.]
Letter of correction from the Leader of the House:
An error has been identified in my response to the hon. Member for Bristol West (Thangam Debbonaire) during Business questions on 22 November 2018.
The correct response should have been:
Andrea Leadsom
The hon. Lady will know that the Government will publish the draft Domestic Violence and Abuse Bill later this Session. It is intended to be groundbreaking, and will be extremely comprehensive. We want to be sure before we introduce it that we have taken into account all considerations in our efforts to put an end to the appalling problem of domestic violence once and for all.
Petition
Home Education: draft guidance and the consultation
Westminster Hall
(5 years, 4 months ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
EU Membership: Second Referendum
(5 years, 4 months ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Paul Scully (Sutton and Cheam) (Con)
I beg to move,
That this House has considered e-petition 226071 relating to not holding a second referendum on EU membership.
It is a pleasure to serve under your chairmanship, Mr Hollobone. As of about an hour ago, the petition had 122,320 signatures. It follows a number of petitions that we have considered on Brexit over the last couple of years. Recently, we debated having a second referendum—I cannot remember how many signatures that got. For the purpose of Hansard, I will read the full wording of the petition:
“Stop possible second referendum on E.U. membership. There is a growing band of people that want to reverse the result of the democratic vote of this country to leave the European Union and are calling for a second referendum. This is mainly by the people that lost the vote two years ago and cannot accept the democratic vote of the majority decision. Although not legally binding the referendum on whether we stay or leave the EU carried out on the 23rd June 2016 was the clearest indication of the will of the electorate. At that time our Prime Minister David Cameron assured us that the result of the referendum would be carried out. We must ensure the democracy rules”.
I could sit down, having said that I agree with every word and that that is the Government’s policy, but you will rely on me, as a Member of Parliament, to expand a little, Mr Hollobone. In the Petitions Committee we bring petitions to debate to allow people to have their voice, and the debate is part of the campaign—it is not the end result. Having this debate will not end the debate about Brexit, not least given that we are about to embark on a large exercise in the main Chamber as of tomorrow.
I appreciate that there is strong feeling on either side. Some people are passionate about pretending that the referendum never happened—they wish that they could wake up with Brexit having gone away. Other people just want to leave tomorrow, perhaps because they are ambitious for this country and want to look for global trade; there could be any number of reasons why they wanted to leave. But there is a great chunk of people in this country who are sitting in the middle.
I had a moment of clarity this time last week while I was chatting to a couple of friends. One said, “Can we please just get Brexit done? I’m so bored with it!” The other chap looked up from his phone and said, “Would you like to see a video of my dog singing with a tennis ball in its mouth?” Brexit sits firmly behind the love of his dog, the trivial stuff on the internet, “I’m a Celebrity…Get Me Out of Here” and “The X Factor” final. All those things divert people’s attention away from the wall-to-wall noise about Brexit.
Next week, we will take one of the most important decisions—if not the most important decision—in this place. Over the next few months we will steer this country out of the European Union in an orderly way, to ensure we have a bright future and our best years over the next 40 or 50 years. That is why that decision was taken. The choice was clear. It was an unambiguous vote: do we want to stay part of the European Union, or do we want to leave the European Union?
I remember leading a petition debate when the Government spent £9.4 million on a leaflet that said that they would adhere to the result of the vote. The leaflet laid out clearly the Government’s position on Brexit, and 17.4 million people voted to leave. After that, 499 Members of Parliament voted in favour of invoking article 50, and 122 voted against. A clear majority legitimised that referendum. People say the referendum was advisory, but we took the decision in this place to abide by the result and to invoke article 50.
Mike Hill (Hartlepool) (Lab)
I have been lobbied by many constituents who are in favour of a people’s vote or second referendum. However, the number of people who want out remains high. Does the hon. Gentleman agree that the will of the people in high leave areas such as Hartlepool has changed, but not enough to support the call for a second referendum?
Paul Scully
The hon. Gentleman makes an interesting point. People speculate either way about polls they have read. There are studies dressed up as polls about what would happen now if there was a second referendum, predominantly because a lot of money is funding the campaign for the so-called people’s vote and that money has to be justified somehow. The hon. Gentleman is absolutely right that people had their voice heard and want us to get on with the job they tasked us to do—they gave us that mandate. That is really important.
I campaigned to leave and voted to leave, and I take my responsibility seriously to ensure that we get out in the best way possible and in as orderly a way as possible. I understand that 48% of people did not want to go and that we want to be able to trade with European Union partners beyond Brexit. That is why we need the whole gamut, rather than me sitting in my corner saying, “Yay, I won—fantastic! I’m off now.” That is not realistic. Inevitably, there will be complexities and compromises. We have to factor all that in, but that is what we are put in this place to do. It will test the mettle of many of us over the next week and a half, as we wrestle with some very complicated and important decisions that will have an impact on this nation for many years to come.
On the mandate, both the main parties pledged in their 2017 election manifestos to respect the result of the referendum. Eighty per cent. of the electorate voted for one of those two parties. That shows that the two parties have taken people with us as best we can, and that people want us to get on with the job—they have tasked us with the responsibility.
The draft withdrawal agreement and the political declaration will allow us to respect the referendum result and get out of the EU in an orderly manner. The choppy times we have had over the last couple of years and that undoubtedly are coming up are not due to a lack of mandate. Largely it is remainers who are trying to wish away the result. After the referendum, many people said, “Crikey, the debate was poor quality and really divisive.” Now they are saying, “I’ll tell you what—let’s just do it again.” That makes no sense. We have a responsibility. Many of us may have gone to a family gathering and seen a new baby or young child, played with it and got it excited, and then handed it back crying to its angry parents. I will not hand back this Brexit baby to its parents, because we have a responsibility.
Even if we choose a second referendum, we have run out of time to have one. Trying to get the legislation through would be an absolute nightmare. We would have to do it within a month or six weeks, but with Christmas coming up that would take us well into the new year. Can we even imagine what the referendum question would be? People would say that remain should not even be an option on the ballot paper because we have had that discussion and leave won. They might say, “Why don’t we choose whether to have the deal as proposed, or no deal and leave on World Trade Organisation terms?” Other people would say, “Let’s have a three-way choice of the deal on the table, no deal or remain.” That would be so complex.
Let us say that the remain option got 40% of the vote, the Government deal got 30% and the leave with no deal option got 30%. Clearly, remain would win and we would stay in the EU—if that was even possible—but 60% of people would have voted for one of the leave options. That would cause a huge democratic deficit: a constitutional crisis. That is why the question itself would be a problem if we went down that road. Who is to say that the debate would be of any better quality? Frankly, I suspect we would have one group shouting, “Vassal state!” and another shouting, “Cliff edge!” back. There would be a lot of heat, but I do not think much light would be shed on the issue. Clearly, we need to move on and bring ourselves together. Let us not ask again, but understand why people voted the way they voted in the first place.
Graham Stringer (Blackley and Broughton) (Lab)
The hon. Gentleman is making a significant point. The question in the 2016 referendum was very simple—“Do you want to be in the EU or out of the EU?” The deal, which is 575 pages and an addendum—I tried to read it, without success—is a much more complex item to put to the electorate. Given that remainers say voters did not understand the original proposition, does he agree that the argument that the question in a second referendum would be simple and the electorate would understand it is ridiculous?
Paul Scully
The hon. Gentleman makes some very important points. There are complexities that we need to debate in this place. I suspect that boiling 575 pages down to a relatively simple question on a ballot paper would be difficult. We need to understand and put across to people what the withdrawal agreement actually does.
There are many reasons why people voted to leave, but they relate predominantly to sovereignty, immigration, and trade and future prosperity. Clearly, lots of people do not think the withdrawal agreement is perfect. I certainly do not, but I can deal with it, because it means that we will leave the EU’s political institutions, which is fundamental to our leaving the EU, and we will stop paying huge membership fees. That is all in there. It will be up to us, as a sovereign state, to opt back into things and accept joint sovereignty.
Anyone who was driven to vote to leave by immigration will see that ending free movement of people is in the agreement, and those who were motivated by our future prosperity will see that it means we will be able to start negotiating our own trade deals. That is a work in progress—the second bit of the negotiation will determine when we can crack on and implement those trade deals, but we will be able to start negotiating them right from the off. I have to say to the friend I referred to who is bored of Brexit that we are only halfway through the process, so he has another couple of years to go while we agree our future relationship.
Let us not be distracted by a people’s vote—a second referendum. Let us concentrate on what is in front of us: on getting the best deal possible in an incredibly complex set of negotiations, which have to satisfy different people. There is no perfect Brexit, so we need to chart our way carefully through choppy waters, take our responsibilities seriously, get rid of the egos and the ideological positions, and work out what is best for the country. Let us not be distracted by a second referendum.
Graham Stringer (Blackley and Broughton) (Lab)
I am disappointed by the number of people who have turned up to the debate. I came to listen to it because I spoke in the debate on the counter-proposition—that there should be a second referendum—two weeks ago. This is one of the most important constitutional issues of our time, so I expected more right hon. and hon. Members to be present. However, I am grateful for the opportunity briefly to contribute. I will not repeat the arguments of the previous debate but, I hope, make one or two new points.
I am sure you remember, Mr Hollobone, as a learned person, that in 1953, after the uprising in East Berlin, Bertolt Brecht said ironically that the regime should dismiss the people and appoint a new one. It seems to me that those people who now argue for a second referendum are saying that in 2016 the electorate got it wrong. They make a number of supporting statements, such as, “The electorate didn’t understand.” I think the electorate did understand what was a very simple proposition. Worse than that to my mind is the statement that the electorate were motivated by anger, disillusionment and alienation because they live in poorer regions of the country. That all boils down to the same point: that people in Hartlepool, Wales, the north of England, the south-west of England, the midlands—all the areas that voted to leave—dealt not with the question before them but with their own internal situation.
My experience was quite the reverse. I talked to people while I was out and about on the day of the referendum, and they had a very simple and direct definition of democracy and sovereignty. A couple of them said something like, “We should make our own laws, shouldn’t we?” That is a pretty simple question and a pretty fundamental way of defining democracy and sovereignty, which are at the core of this issue. I therefore dismiss that suggestion by people who argue for a second referendum.
The establishment took one in the guts on this. They did not expect to lose the referendum, so they denigrated people who voted to leave as a way of not dealing with the fundamental arguments. Those arguments were about democracy and sovereignty—the right of an electorate to dismiss the people who raise taxes and make laws. The EU, since its inception, has been a challenge to that process.
I do not really want to repeat the arguments that have been made, but some are worth addressing in detail. There are practical problems. If there were agreement in both Houses that there should be a second referendum—I do not think there is—how long would it take to pass the necessary law? It is not obvious what the question, or questions, would be. Would it be about the 575-page document we have been presented with, which I suspect even lawyers would find difficult to decipher? Would we have another in/out vote? Or would we vote on all three things? I have heard hon. Friends argue on television and radio that there should be a three-point question. They never seem to have the answer to the question posed by the hon. Member for Sutton and Cheam (Paul Scully): what happens if the electorate vote a third, a third and a third, or if there are other contradictions in the result?
It seems to me that because of those complicated issues, the timetable for getting a second referendum through both Houses would be long. It is not obvious what the decision would be, and interpreting it would be difficult. I am sure the Scottish National party spokesperson, the hon. Member for Edinburgh East (Tommy Sheppard), will correct me if I am wrong, but the debate on the Scottish referendum took more than two years. He will not have been happy with the result, but a thoroughgoing debate was had in Scotland on its future.
We had just over a year to debate the 2016 referendum, which came after the 2015 general election when a significant majority of people voted to have a referendum, and still people claimed that there was not sufficient time to hold a referendum. There would be the time taken on the complicated issues of what questions the referendum would ask and what it would be about, and then there would be the time to have a thorough debate. If one of the problems with the first referendum was that the debate was not thorough and detailed enough, one would want at least as long to debate a more complicated question.
Those are practical problems, but there is a deep problem of principle with the belief—this applies to Plaid Cymru, the SNP and others—that referendums are the solution to a problem. If this referendum result is not honoured, what will happen with the honouring of any future referendum results? It calls into question whether Parliament means it when it says, “This is for the people to decide, even by a majority of one.” I can give quotes from Labour, Conservative and Lib Dem spokespeople who said that. That was the decision of the House of Commons and it was passed by a large majority.
Jon Cruddas (Dagenham and Rainham) (Lab)
I want to go back to what my hon. Friend talked about earlier, given the points he is making now. He said that the initial vote was not driven by anger or alienation. Will he comment on the consequences of shoehorning in a second referendum? Would it not incite greater anger and alienation of the kind that we did not necessarily see in the first referendum?
Graham Stringer
There has been an outpouring of anger by the establishment—those whom we on the left used to call the ruling class—who suddenly found that they were not ruling anymore. They have gone from being completely nonplussed and surprised to being angry. The electorate were told that they had a decision to make, but they are now being told, “We didn’t like the decision you made; think again and do as you’re told this time.” I realise that that is what the EU has done on a number of occasions. The EU has ignored referendums in Greece and France, and it has made the Irish vote on two occasions on different treaties. That fits in with the EU, but I think people in this country would be angry if that happened.
Opinion polls are all over the place; until there is a campaign on whatever the question is, nobody knows what decision will be made. I think the people of the United Kingdom in total are a rather cussed lot and would not like to be told that they have got it wrong and to do it again. Their initial response would be anger and it would not resolve anything. Fundamentally, those people who say that holding a second referendum is a solution are wrong. It would not solve bitterness and it would not necessarily solve the constitutional problems faced by the Government. It really would not solve anything.
Importantly, we should not follow Brecht’s ironic suggestion, which I mentioned at the beginning of my speech, to change the electorate or tell them to do it again. This is the responsibility of Government. The Government said that they would implement the result. They have come back with a deal, about which there are different views. I find the backstop, which I believe our civil service would like us to be locked into forever because it effectively locks us into the customs union, is anathema. It means that we cannot do our own trade deals. Nobody can tell me what we would be getting for £39 billion. I know what the Minister’s position has been over the years, but it is not clear that the £39 billion is anything but a blackmail payment to the EU. It is about the same amount as we would have paid had we had a seat around the table and had we still been a member of the EU. I have been told by Ministers on a number of occasions that there is no legal basis and it is not an obligation to pay that money. There are some smaller obligations. Not only is there a backstop and a lack of trade deals, but we will also be paying a fortune.
I was a member of the board of Vote Leave and one of the biggest criticisms of the leave campaign was that the amount on the side of the bus was exaggerated and was a distortion, because it used the gross payment to the EU and not the net. The figure that the Government are suggesting that we pay for nothing, which will not go into children’s services, social services, protection of the elderly or the NHS, is £60 million per constituency. For what? £60 million per constituency is £1,100 per individual member of the electorate in this country.
I am grateful for the opportunity to talk on this matter again. I do not believe that a second referendum would resolve anything. It is impractical, it is not principled, and I do not think it should be given the time of day to be debated. It should be thrown out.
John Grogan (Keighley) (Lab)
It is a great pleasure to follow my hon. Friend the Member for Blackley and Broughton (Graham Stringer). Like him, I came here expecting to listen and learn, rather than contribute. I am a Bradford City supporter—they are in the second division at the moment. It feels like a night when we are playing at home and Manchester United are also playing at home in the premier league, not too far away. To continue the football analogy, sometimes the chance arises to come off the bench when all the stars are elsewhere. I feel that it is right that a slightly different view be given during this debate.
I want to say why the Labour party is right not to rule out a second referendum; I hope we will go further than that in coming days. I hope our leader will come back energised from Mexico, where he has been at the very important inauguration of the new President over the weekend, and that he will then join our deputy leader and our shadow Chancellor in beginning to talk up the prospects of a second referendum.
I am not one of those who has ever said that people did not understand what they were voting for. I was a remainer, but it is ridiculous to say that people did not understand what they voted for in the referendum. Generally, they thought long and hard about it. Rather unfashionably, I also think that in 40 or 50 years’ time we may look back at this time in British history—in a short period, we have had two referendums, on Scotland and the European Union, that challenged the whole nature of the British state—and find that, although families and communities were riven, it all showed the strength of British democracy. There was high turnout in both referendums and they have energised a whole new generation into politics.
Obviously, the story is not yet finished and we all have a responsibility over the coming months to make sure that the outcome is good for our nation. I do not believe that our greatness depends on whether we are in or out of the European Union; I believe that we are a great country in any regard and a strong enough democracy. Should this House decide to go down the lines of a second referendum, I do not think there would be riots in the street—we would take it in our stride in a phlegmatic, British way, and there would be strong debates.
I was at the Unison political conference in the great county of Yorkshire on Saturday, and a couple of delegates were pointing out that it is quite common in trade union practice to decide on a course of action, go and negotiate with the employer and then come back to the membership and ask whether they support the precise deal that has been agreed or not. I think that is the stage we are at now.
I want briefly to say why I cannot support the deal that is before Parliament. It creates too much uncertainty for businesses and unions on jobs, and so on, and it kicks into the long grass all the difficult problems about the precise nature of our relationship to the customs union and single market. I hope we would be close to both those institutions, but the issue is left in doubt, and uncertain, which means the nation will have a weak negotiating hand. Once we are out, any trade agreement that we reach with the European nations depends on unanimity, whereas at the moment that is not the case. Once we are out, anything we agree depends on every nation agreeing the precise details. We would be far better off coming to agreement before we are out on important issues such as the single market and the customs union. Uncertainty on the economy and a weak negotiating hand in the future are the reasons why I shall vote against the deal.
If the deal goes down—and it looks very much as if it will—someone will have to do something. There will be a plan B. I suspect that the shadow Minister will know what is going on in the Government—
The Parliamentary Under-Secretary of State for Exiting the European Union (Kwasi Kwarteng)
I am not the shadow Minister.
John Grogan
I am sorry. I meant the Minister—I was looking at him. The shadow Minister, my hon. Friend the Member for Sheffield Central (Paul Blomfield), probably does not know precisely what is going on in the Government, but I am sure the Minister, to whom I apologise, will be in the know; the shadow Minister is nodding his head.
I have great respect for the Minister. He will be one of the few people who know exactly what plan B is—among a number of possible ones. I understand that the Trade Bill is coming back the day after the meaningful vote and some people say the Government will adopt the Labour party policy of pretty well staying in the customs union, and possibly a close relationship with the single market. If not, a referendum is one of the only options open to Her Majesty’s Government. There are practical difficulties, of course, but if there was a request to the European Union from Her Majesty’s Ministers to hold a further referendum and remain was to be one of the options, I think we would undoubtedly get the time necessary.
Incidentally, unlike some, I think that if there was a second referendum there would have to be three main options. One would have to be no deal. My constituency was split, as many were—about 53% to come out and roughly 47% to stay in; the different wards ranged from 63% to 32% for those who wanted to stay in, so it is a split constituency. People should be able to say, “No deal”. It would be a disaster for our nation and economy, but it should be one option. How do we do it? We ask two questions.
There is a precedent in Scotland. I understand that the Scottish referendum had two questions—whether people wanted devolution, and about whether they wanted the Parliament to have tax-raising powers. The second Brexit referendum would obviously be a two-question referendum—possibly, “Do you want to stay in or come out?” and, if people wanted to come out, “Is it the deal negotiated by the Prime Minister or not?”—the deal or no deal, in effect. It could be done and would be a way to bring things to a conclusion if there were a complete impasse in Parliament.
We have asked the people once. If Parliament cannot come to a clear conclusion, the second referendum must be something we consider. Mr Speaker will, I think, ensure that there is a vote on it, if the deal goes down. The crucial vote will not be on the amendments to the meaningful vote, but afterwards. If Her Majesty’s Government do not agree that that is their plan B, they will quickly have to come back with proposals on the customs union and single market, to try to get on side a broad range of people in this Parliament who would favour a close relationship with both those institutions.
The one thing that could persuade me to vote for the deal is the situation in Ireland. I shall not vote for the deal next Tuesday, but the one thing I am torn about is the fact that many people—other than the Democratic Unionist party—are writing to me. The Labour party’s sister party, the Social Democratic and Labour party, and business and trade unions in Northern Ireland, say that they want to support the deal because of the consequences in Ireland.
I disagree with my hon. Friend the Member for Blackley and Broughton on the issue. The Prime Minister is to be commended on the backstop arrangements. Ironically, they would put Northern Ireland in the best position economically of any part of the United Kingdom, because it would be linked to the single markets of the United Kingdom and of the European Union.
Whatever decision we take, we must be cognisant of the fact that possibly the greatest political achievement of my lifetime, which I have observed and in which I was a bit-part player, is peace in Ireland. Whatever the House does in the coming weeks, it must not by any decision jeopardise that.
Jon Cruddas (Dagenham and Rainham) (Lab)
I, too, was just going to come and listen to the debate this afternoon, but I find I have the opportunity to speak for two and a half hours. I have a couple of points to make, given that some I would have made have already been covered.
As to what my hon. Friend the Member for Keighley (John Grogan) said about favouring a second referendum including no Brexit, I cast my mind back to a conversation I had with a leading member of my party over lunch last week. I asked him how a second referendum would work, and he said it would be pretty simple. We would have the deal and the case for staying in—the default prior to the last referendum. I simply said, “Okay, I can see where you are coming from. What would be the consequences in terms of the levels of social disquiet and anger that would develop?”
It seems to me that anyone who argues for a second referendum on the basis of the deal versus staying in has a responsibility to provide a risk assessment of the consequences of that argument—because there would be many in communities such as mine. People would feel they had, in a sense, been humiliated, if their contribution in an earlier referendum, and the passion and energy released in that process, could be parked. I fear how that would play out, and how it would affect the texture of the country.
I will lay my cards on the table. My constituency voted 70:30 to leave, although it is quite complicated to ascertain the precise figures, as we straddle two different authorities. I voted remain, so my powers of persuasion were very effective in that debate. What has worried me throughout is the fact that the conversation so far has been dominated by technical issues about our departure—the 530-page document, and so on—at the expense of the sentiments, concerns and views of the people, often quite viscerally presented in the course of the referendum. They seem to have been marginal in the conversation since then. To date, the righteous anger has appeared to be primarily on the hard Brexit side of the debate, but a bit more righteous anger now seems to be developing on the hard-line remainer side—those who simply want to rewind the result.
I am a passionate remainer, not least because of the Irish issue that my hon. Friend the Member for Keighley mentioned. I think that partly relates to our historic origins. However, the situation means we can play fast and loose with some big issues and, arguably, the great hallmarks and legacies of the previous Labour Administration. We should be careful what we wish for.
My point is simple. I can see how things could move quickly in the next few weeks. As someone said in the papers, we could move through the gears pretty quickly, and we have to game out what the consequences will be, after next Tuesday. One of those, which is appearing front and centre now, is the question of the second referendum. I simply say that anyone who is going to be vociferous in an argument for a second referendum must be clear about what they view as the consequences of that.
It seems to me that the key task of the political class should be national reconciliation in the months and years ahead. There is a danger that we could build and cement a canyon down the centre of the country. With that notion of caution, I simply say that I worry about the speed at which this second referendum is moving front and centre in the debate. I fear we could trip into positions that we should be wary of, unless we have done the preparatory work of fully understanding the consequences of them, which could shape the country for years ahead.
Tommy Sheppard (Edinburgh East) (SNP)
Like other hon. Members, I am a little surprised at the level of attendance at this afternoon’s debate. I can never tell with these things whether it is a lack of empathy across the House for the sentiments behind the petition or whether it is just that the Attorney General is bigger box office than this discussion, but we are where we are.
The way I see it is this: I do not think that in a free, open and democratic society we can say that people do not have the right to change their minds. Of course they do. A group of people voting in a referendum one day in history cannot forever bind people for the future. Any of us would be on very thin ice if we were to get into a situation of saying, “You can never have a second referendum on this question.” On the other hand, we have to accept that with big questions of governance and constitutional politics, we cannot go changing our mind every day, or every month, or even every year.
Therefore, we have to ask ourselves in what circumstances it is legitimate to consider a second referendum, a so-called people’s vote. There are three tests that need to be applied before the legitimacy test is passed. First, it must be demonstrated that the information on which people made their original decision is in some way compromised, either because it was wrong or because it is now obsolete and has been superseded by further developments. With regard to the Brexit referendum, I do not think anyone can argue other than that the information on which people based their decision was fatally flawed.
In response to the statement by the hon. Member for Blackley and Broughton (Graham Stringer), I am not one of those who blame the electorate; I do not say that people were stupid or did not understand the question. I say they that were deliberately misled by people. I say that they were given information that was false, and deliberately so. In many ways the mendacity in that campaign was on an industrial scale. That is why people were conned in many ways into making the decision they did in June 2016.
Now we have an awful lot more information about what is at stake and what the consequences are, so we move on to the second test: have a significant number of people changed their minds on the question? By “significant”, I mean enough to produce a different result, were the question put again. Again, that test is met. It is consistently clear from opinion polls over three or four months—the latest one only today—that a large number of people have changed their mind on the question, sufficient to produce a different result were the question put again. The Prime Minister and the Government are fond of saying that 17.4 million people voted to leave the EU, the biggest number in our history that have ever voted for anything. That is true, but here is the inconvenient truth: at least 2 million of them have now changed their minds. I think it is disrespectful to those people not at least to consider whether the circumstances are such that they should be consulted again.
The third test is that the Parliament or legislature charged with discharging the mandate from the referendum is either unwilling to do so, or incapable of doing so. We are not at that point yet, but I am fairly certain, and I have no reason to change my view from the speeches so far today, that next Tuesday evening Parliament will reject the withdrawal agreement that has been put before it by the Government. In those circumstances, we will be entering a period of unknown chaos, where the Parliament may well be incapable of making any decision. That political gridlock or stasis can perhaps only be resolved by putting the question back to the people who started the process in the first place—all the citizens of the country. I say therefore that a people’s vote should not be regarded as an alternative way of agreeing the withdrawal deal. It is going to happen, if it does, as a consequence of the failure of the Parliament and the Government to prepare a withdrawal deal.
I speak for the Scottish National party, the third party in the United Kingdom Parliament, so it would be remiss of me not to try to give some sort of perspective from north of the border. Scotland, as colleagues know, took a different view from the rest of Britain.
Graham Stringer
I am following but do not agree with many of the points that the hon. Gentleman is making. On his final point, that there is a failure of Parliament, is it not primarily a failure of the Government? If the Government fail, should not the Government go back to the electorate?
Tommy Sheppard
The hon. Gentleman predicts my next point, but let me first say something about the situation in Scotland, where 62% of the people voted to remain in the European Union. By all polling evidence, if that question were asked again it would be more like 68% to 70%, so the opinion is quite different in Scotland from in England and Wales.
The attitude of the minority SNP Government in Scotland, when faced with a question of what to do with this result, where Scotland had voted one way and the rest of the United Kingdom had voted another way, is interesting. We had tried, as colleagues will remember, in the debate on the European Union Referendum Act 2015 to get some provisions in the Act itself that would recognise the different nations within the United Kingdom, but we failed in that endeavour.
The Scottish Government did not say, “Oh well, we don’t recognise the result in the UK because we are against Brexit and this is the Scottish position.” Quite the contrary: a Government that believed in and aspired to an independent Scotland and membership of the European Union produced a detailed document that advocated neither of those things. “Scotland’s Place in Europe”, published in December 2016, was a detailed and comprehensive policy analysis of how Brexit could take place in a way that would not have such effects on the Scottish economy and would better respect public opinion in Scotland. We were basically arguing, as we still argue to this day, for a compromise on what has become known as a Norway-plus position, where we aim to stay in the single market and the customs union. We have not yet been successful in that endeavour, but it is interesting that for 24 months the Scottish Government have been trying to offer this compromise and to get a discussion going about it, and for 24 months they have effectively been ignored.
That brings me to the point about how the Government have managed this process. Here we are, 30 months after the original referendum result, a result that was, by any observation, a narrow and divided one, with the country clearly split. A better Government would have taken that result and tried to steer a course that respected the majority of public opinion to leave the European Union and no longer formally be a member of it, but also recognised that almost half the country valued their European citizenship and tried to find some compromise that would allow Brexit to take place in a way that minimised the depression of their European identity.
The Government did not do that—not at all. The Government took an absolute position and said, “This is clearcut, it is black and white; the 52% won and we are now no longer going to talk about the 48%.” They were written out of history as if their opinions did not matter. That is one of the things that has caused so much resentment and anger and is now fuelling the demand for a people’s vote. In fact, it is even worse than that, because the 52% were disrespected as well; we had every right-wing cause in the country trying to tack its ideas on to the 52% as if that was a mandate for what they wanted. Many people in the 52% were misrepresented as well.
If we had had a Government that could have been more inclusive in their approach and had a dialogue with people, with Opposition parties, with local government and with the national Governments in the devolved legislatures, we might be in a slightly better position. We might have had more of a consensual approach that could possibly command support on the Floor of the House next Tuesday. But we are where we are; we do not have that, and we have a Prime Minister who, Canute-like, seems to be just ignoring wave after wave of concern and opposition that is expressed.
Over the next five days we will spend a lot of time talking about the detail of the 585-page withdrawal agreement and the 24-page framework document, so I will not go into that here. However, the Government getting themselves into this position is calamitous. It did not need to happen. Even at this eleventh hour they could pull back. They need to understand that, by setting their impossible red lines in the first place, they put themselves on a course to deliver a product that was never going to command the support of the House and, worse, does not really seem to satisfy anyone in the country, never mind the 52% who voted to leave in June 2016.
In many ways, the Government have to think again. It seems to me that, once we get past next Tuesday, giving people the opportunity to vote again on this question may provide the Government with a lifeline to try to get out of the mess they have created for themselves. If they do not do that, I certainly agree that the time has come for this Government to get out of the road and be replaced by a Government that will do a better job.
Paul Blomfield (Sheffield Central) (Lab)
As ever, it is a pleasure to speak for the Opposition under your chairmanship, Mr Hollobone. I take this opportunity to welcome the Minister, the hon. Member for Spelthorne (Kwasi Kwarteng), to his place in the Department for Exiting the European Union team. Taking up the point made by my hon. Friend the Member for Keighley (John Grogan), I shall be impressed if the Minister knows the Government’s plan B; he will be the first Minister to have achieved that objective if he does. I look forward to hearing from him later.
I thank the hon. Member for Sutton and Cheam (Paul Scully) for opening the debate. He made an important point on public polling reflecting his friend’s opinion that everybody is fed up with hearing about Brexit. There is almost a momentum behind the current process of people looking forward to 29 March, because then it will all be over. However, as he rightly pointed out, it will not be. We are certainly not nearing the end, and we are not really nearing the end of the beginning. The biggest discussion is yet to be had, because the declaration on our future relationship is so lacking in detail. He also made the important point that this is a critical moment in our history. The decisions that we take over the next few days will shape our country for generations. The situation could not be more serious.
The Labour party campaigned in the referendum to remain, because we believed that it was right, economically and politically, for our country and for the continent that we share, but we accepted that we lost, which is why we voted to trigger article 50, to begin the negotiations to leave. However, the last two years have been largely squandered, with negotiations within the Conservative party taking precedence over the negotiations that needed to take place with the EU27. I understand the predicament of the Government and the warring factions within the Conservative party, but it has left us in a difficult position, and the country is paying the price.
It did not have to be like this, as the hon. Member for Edinburgh East (Tommy Sheppard) indicated. The Opposition urged the Prime Minister to reach out two years ago to the majority in Parliament in favour of a sensible Brexit and, in the spirit of my hon. Friend the Member for Dagenham and Rainham (Jon Cruddas), to look towards national reconciliation by saying that, yes, people voted to leave the European Union, but by the closest of margins. The referendum gave a mandate that we should no longer be members of the EU, but not that we should rupture that relationship, which was built over 45 years.
If the Prime Minister had said then that she would seek a deal that was right for the people of this country and their livelihoods, she could have begun to pull together the 48% and the 52%. If she had said that that would have involved a customs union, a close relationship with the single market and continued participation in the agencies and partnerships we built together with the EU, I think she could have achieved that. She would have had a clear majority in Parliament and united the country, and the Northern Ireland border, as raised by my hon. Friend the Member for Keighley, would certainly not have been an issue.
However, the Prime Minister instead let the Brexit extremists within the European Research Group shape the agenda. She set her red lines and boxed herself in, and the result is this doomed deal that satisfies nobody. We face a vote next Tuesday in which the Government are likely to be defeated, and we will then move into uncertain territory. It appears that a clear majority in Parliament will reject the deal and, while there is also certainly a majority in Parliament that will ensure that we do not leave without a deal, it is not clear whether there is a majority for any other outcome. Parliament, like the people we represent, is conflicted.
When the deal is voted down, we will need maximum flexibility. The Opposition will demand a general election, as we have made clear. I hope that, despite their experience in the general election last year, Conservative Members may yet come to recognise that an election to break this deadlock would be in the interests of the country. If they do not, other options must be kept open, including a public vote.
I understand the concerns of the petitioners who made the case against a public vote, which have been reflected by hon. Members, including my hon. Friend the Member for Blackley and Broughton (Graham Stringer). However, it is interesting that, as we move towards the Brexit endgame, the debate is changing fundamentally. Some honesty is finally beginning to break out. Those who spent the last two years endlessly repeating the mantra that no deal is better than a bad deal have been hitting the TV studios over the last couple of weeks to urge MPs to back the Prime Minister’s deal because, they argue, the alternative is no deal, which they rightly say would be a catastrophe.
Even more significantly, claims that the country will be more prosperous have been abandoned, including by the Prime Minister and the Chancellor. Instead they argue for the Prime Minister’s deal on the basis that failing to deliver on the 2016 referendum would have serious social and political consequences. That serious point has been made in the debate and it should not be lightly dismissed. However, we should also recognise that there will potentially be even more serious social and political consequences if Parliament votes for a damaging Brexit on a false prospectus.
The Government have confirmed that we will be economically worse off, to varying degrees, under every Brexit option. Instead they say that the Prime Minister’s deal deserves support because it delivers on other pledges, with a particular focus on taking back control of our borders. On the Government’s website, “40 reasons to back the Brexit deal”, the top reason is on migration, with a promise that free movement will come to an end once and for all.
However, the expectations unleashed by the rhetoric of taking back control are a long way from the reality. The Government have had complete control of non-EU migration for the last eight years. In every one of those years, net migration from outside the EU was higher than from within it, and it has stayed at a steady level. As last week’s figures from the Office for National Statistics show, the recent decline we have seen in EU migration has simply been replaced by rising numbers from beyond the EU, with non-EU migration hitting a 14-year high. But on that central issue, the Home Secretary has said this morning that we are unlikely to see the Government’s plans before next Tuesday’s vote; the much-promised White Paper on immigration has apparently been delayed again—and beyond next Tuesday.
We potentially face a future that is poorer, with less money for public services, and with migration numbers changing little. That is a long way short of the wild promises made during the Brexit campaign, and potentially the social and political consequences of people being in that position five years down the road are very serious.
Therefore, when the Prime Minister’s deal is inevitably voted down, all options have to remain open. As I said, that includes a further public vote. That is not something on which there are divisions between Opposition and Government Members. The hon. Member for East Surrey (Mr Gyimah) made the case for a public vote when he resigned as Minister for Universities, Science, Research and Innovation on Friday. His predecessor as Universities Minister, the hon. Member for Orpington (Joseph Johnson), has also made the case, as have former Conservative Cabinet members and the current Secretary of State for Work and Pensions, saying that a public vote may be the only way out of the predicament in which we find ourselves.
A public vote would not be without difficulties, and nobody could predict the outcome. However, the public do have information that was not available two years ago. They can see now, in contrast with then, what Brexit looks like, so there is a case for giving them a chance to reject Brexit or give informed consent to the Prime Minister’s deal. We will explore all the options available, but we believe that we should not rule out the chance to give the people the final say.
The Parliamentary Under-Secretary of State for Exiting the European Union (Kwasi Kwarteng)
I am delighted to stand here, on my first outing as a Minister to represent the Government and make the Government’s case, under your chairmanship, Mr Hollobone; I am very pleased about that. This has been a very interesting debate. As has been observed, more right hon. and hon. Members could have participated, but I think that quality is better than quantity. That has always been a principle of mine, and I was delighted to hear as many speeches as I did.
I thank my hon. Friend the Member for Sutton and Cheam (Paul Scully) for opening the debate on behalf of the Petitions Committee. I also thank all those who participated in the debate. The petition brings up a very important question—the idea that we should have a second referendum. I want to make it as categorically clear as possible that this Government will respect the result of the referendum and we will not—I repeat, we will not—hold a second referendum. Let me go into some of the reasons why we do not want to do that.
The hon. Member for Blackley and Broughton (Graham Stringer) made a very good point when he referred to the levels of condescension and the idea that people were too stupid to understand what membership of the EU meant and what leaving it would mean. It is ridiculous to assume or to think that people in this country, who have been debating this issue for 45 years—it has been an issue ever since we joined the EU—were too stupid to understand the question on the ballot paper. It is also offensive—it is ridiculous and offensive.
Then we heard the other idea. The hon. Member for Edinburgh East (Tommy Sheppard) said, “Well, people weren’t stupid, but they were conned.” That is like me saying to a friend, “When you lost your money, you weren’t stupid, but you were conned.” Essentially, it is saying that, for whatever reason, people were misled; they were gulled into making a choice, which they actually knew perfectly well about. They simply did not want, as an electorate, to stay in the EU, and it is the job of the Government, as it always has been, to deliver on the vote.
Let me give my personal point of view. I was in the Vote Leave campaign. I represent a constituency that voted 60% to leave the EU. My sense, as a constituency MP talking to people, is this. A large number of remainers are very quiet. They voted remain for all sorts of reasons. Perhaps some of them believed that the fear and uncertainty were too great. But now that the electorate as a whole have embarked on this course, many of those remainers want to see it through.
The hon. Member for Edinburgh East suggested, “Oh, the polls have changed wildly.” They have not. If we look at the polls a week before the campaign started in 2016, we see that they were exactly where they are now. Remain, as I recall, had a 10-point lead and, in the course of the campaign, its lead was reversed.
Tommy Sheppard
I take the Minister’s point, but does he not accept that there is a considerable difference between the result in June 2016 of 52:48 and the average of polls now, which is 55:45 against?
Kwasi Kwarteng
My very point was that the hon. Gentleman should not place too much credence in the polls. If the polls had been right, this would never have happened. If the polls four months before the actual result had been right, remain would have won by a huge margin. I question the notion that because the polls are essentially saying exactly the same thing as they did four months before the last referendum, that means that the public have changed their mind; I dispute that. The hon. Gentleman was absolutely right to suggest that we cannot simply relitigate this issue year after year. The previous Prime Minister, David Cameron, made it very clear that the result would be respected. It was a close result, but a clear and authoritative one.
I was musing on this question during the hon. Gentleman’s speech. If, by some misfortune, the Scottish National party had got its wish and won the independence referendum in 2014, how enthusiastic would it be about another referendum on that question? It would simply have shut down the issue.
Tommy Sheppard
That is a good debating point, but let us be clear: the 2014 Scottish referendum was conducted, as has been said, on the basis of a campaign and discussion that lasted more than two years, a vast debate and a 670-page White Paper that spelled out exactly what the proposition was. Surely the Minister is not drawing a comparison between that and something that was based on a slogan on the side of a bus?
Kwasi Kwarteng
I will absolutely make the comparison and I suggest to the hon. Gentleman that the United Kingdom’s membership of the European Economic Community and now the EU had been a top-line issue for 45 years. If it had not been, why was there a referendum in 1975, the year I was born? This issue has gone on for two generations, so I suggest respectfully to the hon. Gentleman that the electorate did have a sense of what they wanted.
We cannot go down the route of simply relitigating referendums when we do not like the result, because that essentially is what this boils down to. That is essentially what is driving the call for a second vote—the so-called people’s vote. Former Prime Minister Mr Blair has said as much. He makes no bones about the fact that he thinks that Brexit is a disaster and the way to reverse Brexit is by means of a second referendum. It is an instrument by which one can reject the will of the people as expressed in June 2016. Let us not be fastidious or naive about this. The people who generally are driving for a people’s vote and a second referendum want to reverse the result. They think—mistakenly, in my view—that the way to reverse the result is to get a second referendum, which will confirm or reconfirm our membership of the EU. I think they are wrong and, as I have said, the Government have made a clear undertaking that we will not have a second referendum.
The question on 23 June 2016 was clear; it was absolutely unequivocal. The question was simply:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
Many of us in the Chamber took part in the referendum campaign—some with Vote Leave and some with the Stronger In or remain campaign. It was a very hard-fought and widely trailed discussion. Some people have said that the quality of the debate was not good enough or that some pieces of information were withheld, but generally it was an extraordinary exercise in democracy. As has been said many times, it was the single biggest vote that this country had ever seen in a general election or any other kind of election. And as we all know, 17.4 million votes were cast to leave the EU. That was the highest number of votes cast for anything in UK electoral history.
What those calling for a second vote—the so-called people’s vote—are saying is that the people should think again. Essentially, they are saying, metaphorically, to the electorate, “Your homework was not good enough. Please do it again.” As the hon. Member for Blackley and Broughton suggested, the electorate—certainly in my constituency—are quite a cussed lot. I do not see the floods of support for remain described by others. I strongly suspect—this is my personal view—that a second referendum would not deliver a different result.
That is irrelevant, however, because the Government are tasked to enact the will of the majority of the people, as expressed in the 2016 referendum. All major political parties were committed to respect the outcome. We fought a general election on the basis that we would leave the EU. As has been said, 499 Members of this House voted to invoke article 50, which we all knew would involve a two-year process, at the end of which we would leave the EU. All of that is in the public record and everyone understood the consequences of it. Furthermore, the Labour party committed in its 2017 manifesto to leave the EU and the customs union. More than 80% of the British people voted either Conservative or Labour in the general election. They voted for parties that were absolutely committed to respect the 2016 referendum result. That is exactly what the British people expect us to do.
I fully understand the emotional impetus behind the call for a second referendum, but I think it is a ruse by which people seek to stay in the EU. We are pledged to leave the EU. The full democratic process of the referendum delivered a clear directive, which this Government hope to deliver. The call for a second referendum opens up a huge question about the levels of trust in our Government and our democracy. We have to respect the will of the people. To do otherwise and say, “We will have a second referendum and try to reverse the result of the first referendum, because you got the wrong answer first time,” is not only an abnegation of democracy, but profoundly disrespectful of the electorate. As a Minister, I would not want to see that.
We have to look at the nature of the referendum itself. It was a long, four-month campaign, but we cannot just think of the referendum as those four months in 2016, because this debate had been going on for decades, not only in my party but in the Labour party. I am old enough—just—to remember the 1983 general election, in which the Labour party was pledged to leave the EEC. That created great divisions and caused great debate within the Labour party. My own party has been a scene of great discussion and lively debate on this issue. It is not right to say that those four months of the referendum campaign in 2016 encapsulated the whole debate, because it has been ongoing for 45 years and more.
I sense that I am in a room of clairvoyants, because everyone has told me that the Government will lose the vote on Tuesday. I have been in the House long enough—let us see what happens. People have asked, “What about plan B?” If I knew plan B, I would not divulge it in this Chamber—I assure hon. Members of that—so the question is redundant. I remind hon. Members that the choice is between a deal and no deal, because, as others have suggested, the hourglass is running quickly. We are running out of time. Article 50 was invoked on 29 March 2017. It does not take a mathematician to work out that 29 March 2019 will be the end of our formal membership of the EU. Nor does one have to be mathematically gifted to work out that there are fewer than four months between today and exit day. In that timeframe, the notion that the Government will throw off their policy of the last two and half years and then bring in some parliamentary device for a second referendum to take place before the exit day is, frankly, ridiculous. We do not have the time to do it and people would feel that it would be extremely irresponsible to do so.
I could spend the next hour and three quarters trying to convince hon. Members of the merits of the deal. I do not want to do that, because they probably want to do other things. However, I will say that the deal does precisely what the electorate voted for. On immigration, we have heard about restrictions to freedom of movement.
Paul Blomfield
Given that the Minister has raised the question of immigration, does he agree that it is incumbent on the Government to do as they previously promised and publish the immigration White Paper before we vote on the deal?
Kwasi Kwarteng
The shadow Minister is trying to tempt me down paths I do not want to go down. We will have a plan. At the moment, the Government are focused on winning the vote on Tuesday and getting on with Brexit, as so many of our constituents want them to do. My hon. Friend the Member for Sutton and Cheam said that someone was bored of Brexit. I have used that phrase myself—not of me: I love Brexit and am fascinated by it, but a lot of my constituents want to get the ball rolling. They want to get on with wider political debate and to get on with their lives. They see that the deal is a way of getting to the finishing post of 29 March. Anything we do to jeopardise that would not only frustrate Brexit, but be a great abnegation of democracy.
The debate about our relationship with Europe will not end with our formal exit from the EU. There will be all sorts of ongoing discussions and debates about bits of the EU that we might want to pay into and others that we might not. That is the nature of democracy: we can debate it. It will not be set in stone, but we will have an evolving and, I hope, co-operative and fruitful relationship with the EU. However, we seek to close the question of membership of the EU and we will formally end it on 29 March.
People have talked about the money—the £39 billion. The figure of £35 billion to £39 billion has been quoted as a divorce payment. That is actually a small fraction of the £100 billion that we saw in the newspapers and the other huge amounts that were trailed across the media. Looking at our 46-year commitment to the EU, we see that £39 billion works out as four years of net payments to the EU—what I call the annual subscription.
The annual subscription in the 2014 to 2020 budget period was about £10 billion a year net, depending on how it is calculated. After the payment and the implementation period, we will not have to pay a penny piece. The golf club subscription, as one of my constituents once referred to it, will be over. We will not be paying into the common kitty to the tune of £10 billion a year. We will secure—we hope and confidently expect—a free trade deal. We will be able to co-operate with the EU, but our formal membership and the annual tribute or payment that we used to make will be over.
My last point is about sovereignty, which was raised by the hon. Member for Blackley and Broughton. People wanted to have a sense that they were electing to this Parliament Members who would exercise the sovereign will of the British people and make our own laws. That is a fundamental point that cannot be captured in trade deals, money or economics; it is about fundamental independence and sovereignty. That was a big driver of the vote and this deal delivers it. I am pleased to speak on behalf of the Government in this debate. I congratulate my hon. Friend the Member for Sutton and Cheam on introducing it and I look forward to his concluding remarks.
Paul Scully
I thank the Minister for his reassuring remarks. It was remiss of me not to have welcomed him to his place for his first Westminster Hall debate. He gave a good amount of reassurance that we will not get distracted from our important task by the so-called people’s vote. We need to concentrate on making sure that we deliver for the people of this country.
In the last couple of years, the Government and the Prime Minister have had the incredibly difficult job of squaring seemingly impossible circles. It is impossible to find a solution to the Labour party’s six tests when the last one says that leaving must deliver the exact same benefits as membership. Clearly, at the golf club that the Minister referred to, pay-as-you-play is not the same as membership.
Paul Blomfield
Does the hon. Gentleman acknowledge that the Prime Minister said that she was determined to meet the six tests set by the Labour party?
Paul Scully
The Prime Minister will go as close as she can, but that last one is clearly impossible. She is working to satisfy as many people as she can in incredibly difficult times.
We then have the Liberal Democrats, who want to have their Bobby Ewing moment and pretend this all away, frankly. Those are the dynamics that we have been working on.
We are now at the dénouement—the end of the first part of the process. Let us try to get through this week and a half, get the vote next Tuesday, and move on to the exciting, optimistic global Britain thing that we can do—trade with the rest of the world and with our European partners. I look forward to the fact that our 40 or 50-year decision will allow us to make sure that our best days are still ahead of us.
Question put and agreed to.
Resolved,
That this House has considered e-petition 226071 relating to not holding a second referendum on EU membership.
Written Statements
(5 years, 4 months ago)
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Exiting the European Union: Publications
(5 years, 4 months ago)
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The Attorney General (Mr Geoffrey Cox)
Today I am laying before Parliament the following document:
“EU Exit: Legal position on the Withdrawal Agreement”.
This document sets out the Government’s legal position on the proposed withdrawal agreement and provides a legal commentary, covering each part of the withdrawal agreement and the three protocols.
I will make an oral statement to the House later today.
[HCWS1131]
Prime Minister's Trade Envoy to Argentina
(5 years, 4 months ago)
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The Secretary of State for International Trade and President of the Board of Trade (Dr Liam Fox)
The Prime Minister has appointed the hon. Member for Fylde (Mark Menzies) as the Prime Minister’s Trade Envoy to Argentina. This extends Mark’s current portfolio as Trade Envoy to Chile, Colombia and Peru. This appointment increases the number of markets covered by the programme to 64, as we look to deepen our relationships across the globe. The Prime Minister’s Trade Envoy programme is an unpaid and voluntary cross-party network of people, who support the UK’s ambitious trade and investment agenda in global markets.
[HCWS1127]
UK WTO Membership
(5 years, 4 months ago)
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The Secretary of State for International Trade and President of the Board of Trade (Dr Liam Fox)
I have previously informed the House that in order to fulfil our obligations at the World Trade Organisation (WTO) as we leave the European Union we will prepare UK-specific schedules of concessions and commitments. On 19 July I informed the House of the start of the process for certification of the UK schedule for goods. I have today sent to the secretariat of the WTO the UK schedule for services and I will place a copy in the Library of the House.
This schedule replicates, as far as possible, our current obligations at the WTO. We see this as a technical exercise for which the WTO’s procedures for rectifications or improvements to schedules provide the appropriate legal mechanism. These procedures include a period for WTO members to raise objections to the proposed schedule, and it is usual for some of them to do so. If objections are raised, we will continue to work with WTO members to resolve any concerns and see the objections withdrawn. The UK can continue to trade on current terms on an uncertified schedule, with no impact on trade flows, as is the case for other countries trading on uncertified schedules.
Presenting our own UK schedules at the WTO is a necessary part of our leaving the EU. It does not in any way prejudge the outcome of the eventual UK-EU trading arrangements.
[HCWS1128]
EU Transport Council
(5 years, 4 months ago)
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The Secretary of State for Transport (Chris Grayling)
I will attend the last Transport Council under the Austrian presidency (the presidency) taking place in Brussels on Monday 3 December.
The Council will consider proposals from the first tranche of the ‘Mobility Package’. Under the ‘social pillar’ of the package the presidency will seek a general approach on proposals to establish a specific regulatory regime for the posting of workers in the road transport sector; to introduce new regulatory provisions in relation to ensuring that drivers have the option regularly to return home; and to enable drivers to take their regular weekly rest in their vehicles provided that certain welfare-related conditions are met. Under the ‘market pillar’ of the package the presidency will seek a general approach on proposals to introduce new regulatory requirements for the operation of light commercial vehicles (vans); and to modify the ‘cabotage’ rules for vehicles operating in countries other than their country of establishment. The Government consider the package to be a necessary response to current issues with the functioning of the EU road transport market, in particular, unco-ordinated national enforcement action in relation to posting of workers rules, and exploitation of some aspects of the regime by some non-compliant operators. The Government are broadly content with the specific proposals, particularly with the compromise gained on limiting the extension of regulatory obligations to operators of larger vans which are also undertaking international haulage work.
Next, the Council is expected to reach a general approach on a proposal from the second tranche of the ‘Mobility Package’ to revise the current directive on combined transport. The proposal contains provisions that could improve promotion of modal shift across the EU and reduce congestion. The Government consider that the proposal includes some positive changes to modernise the processes and, as currently drafted, will provide an acceptable balance between EU-wide action and national discretion.
Following this, the Council will consider a general approach on a proposal from the third tranche of the ‘Mobility Package’ to amend the current directive on road infrastructure safety management (RISM). The current directive was adopted to ensure that road safety considerations are at the forefront of all phases of the planning, design and operation of road infrastructure and currently applies to roads on the trans-European transport network (TEN-T). The Government consider that the proposed increase in scope to include motorways and ‘primary roads’ is a proportionate expansion of the directive and is content with the proposal that member states define the ‘primary roads’ covered by it. The Government believe the proposal strikes a balance that will allow member states to retain judgment over where the directive is applied in their own countries, while upholding the shared principles of robust safety inspection and excellence in road design.
There will be a progress report on the proposal to amend the directive on discontinuing seasonal changes of time, which the Government oppose. We have no plans to change daylight saving time within the UK, and feel that the Commission has not provided enough evidence to demonstrate a strong case for changing the existing arrangements.
Afterwards, there will be a progress report on the proposal to revise the regulation on rail passengers’ rights and obligations, aimed at strengthening the rights of rail passengers, including by improving access for people with disabilities or reduced mobility.
Following this, the Council is expected to reach a general approach on the proposal to amend the directive on the minimum training of seafarers. These changes will ensure that the legislation is up to date, and will provide the European Maritime Safety Agency (EMSA) with additional time to decide whether to recognise an outside state’s certification. The Government consider the general approach to be satisfactory on the basis that the amendments are justified and appropriate to ensure that maritime directives are in line with international norms, and so that EMSA can make appropriately informed decisions.
The Council is also expected to reach a general approach on another proposal from the third tranche of the ‘Mobility Package’, to revise the current directive establishing a European maritime single window environment. This is intended to further harmonise the electronic submission of ship pre-arrival reporting formalities. The Government support digitisation here as it can provide benefits for business. The UK has engaged constructively in negotiations and has been able to share its existing expertise in many areas. The Government welcome the proposed general approach, which is satisfactory.
The Council is expected to reach a partial general approach on a proposed regulation on the Connecting Europe Facility. The proposal will move into the next multiannual financial framework with broadly the same funding allocation for transport as the current MFF. The Government support the value that a well-managed funding programme like the Connecting Europe Facility can bring to transport infrastructure. However, the regulation will take effect after the UK has left the EU, and the Government are still considering their position on future involvement in the programme.
There will be a progress report on a proposal from the third tranche of the ‘Mobility Package’ on the proposed regulation on streamlining measures for the realisation of the trans-European transport network (TEN-T). The proposal sets out requirements for the administrative procedures to be followed by the competent authorities in member states in providing approval for projects of common interest on the TEN-T Core Network.
There will be a progress report on a proposal from the second tranche of the ‘Mobility Package’ to amend the directive on the promotion of clean and energy-efficient road transport vehicles. The directive looks to drive the uptake of clean vehicles, including cars, and light and heavy duty vehicles (including vans, trucks and buses).
There will also be a progress report on a proposal from the third tranche of the ‘Mobility Package’ for a regulation on electronic freight transport information. This regulation is designed to correct a perceived lack of standardisation of acceptance by member states of electronic freight documents.
The Council will be asked to agree conclusions, which the UK supports, on the potential of inland waterway transport as an environment-friendly transport mode, offering existing capacity to alleviate congestion on roads.
Finally, under any other business, the presidency will provide information on other current legislative proposals. Additionally, it will report back on the informal meeting of Transport and Environment Ministers that took place in Graz on the 29-30 October 2018, followed by an update on ASEAN negotiations. The Luxembourg delegation will present information on the social agenda in aviation. The Commission will supply information on sustainable transport infrastructure charging and internalisation of transport externalities, and finally, the Romanian delegation will provide information on the work programme of their forthcoming presidency of the Council of the European Union.
[HCWS1129]
Pensions Dashboards Feasibility Report and Consultation
(5 years, 4 months ago)
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The Parliamentary Under-Secretary of State for Work and Pensions (Guy Opperman)
Pensions dashboards will give consumers information about their pensions savings from multiple sources through an online service. Consumers will be empowered by the presentation of information, helping them to engage with their pensions savings. The service support informed decisions and prepare the consumer for the transition between working age and retirement.
Conscious of the complexity of this project, my Department has undertaken an extensive study of the elements required of pensions dashboards. The Government believe that dashboards will deliver for savers, and today we have published the feasibility report so starting the process of consultation.
It is my firm belief that industry is best placed to finance and deliver this project and to create a technical dashboard infrastructure. This will advance a range of dashboard options.
The Government have listened to views that suggest compulsion is needed to maximise pension scheme participation in a reasonable timeframe. We propose to act to deliver this legislation, when parliamentary time allows, and following the creation of a robust delivery model with the appropriate governance. It is not our proposal to compel all schemes to provide data—we have outlined limited exemptions. We will work with the regulators and industry to help ensure responsibilities to protect consumers are upheld, while ensuring the safeguarding of consumer data.
We have met with the Chair and the Chief Executive of the Single Financial Guidance Body. We believe that this body is ideally suited to oversee the industry delivery group. It will bring together industry representatives, FinTech and consumer organisations to ensure successful implementation. We propose that a non-commercial dashboard, hosted by the Single Financial Guidance Body, will offer an impartial service to those for whom there is not a commercial offering.
It is a continued priority of this Government, with the support of the pensions, financial services and consumer community, to restructure the UK’s pension savings culture against the backdrop of a new generation of savers. Dashboards will build upon the successful introduction of automatic enrolment, which has led to almost 10 million people either newly saving or saving more towards their retirement.
We are confident that the “Working together for the consumer” document, published today, demonstrates the Government’s and the Department’s strong and sincere belief that pensions dashboards have great potential to transform the pensions landscape for the consumer’s benefit. We look forward to receiving feedback and proposals as to how Government can best facilitate an industry-led delivery of this online service.
For ease of reference, I shall deposit a copy of the feasibility report and a related fact sheet in both Libraries of the Houses of Parliament.
[HCWS1130]
House of Lords
Agricultural Subsidies
(5 years, 4 months ago)
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Baroness Jones of Moulsecoomb
To ask Her Majesty’s Government what consideration they have given to linking agricultural subsidies to the creation of buffer zones between farmland and rivers, to reduce pollution and encourage wildlife corridors.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, I declare my farming interests as set out in the register. Defra recognises that riparian buffer strips are an extremely effective measure to improve the natural environment. They link riverside habitats, provide a valuable resource for plants and wildlife, and enhance water quality. We are working with farmers and other stakeholders to design an environmental land-management system that will pay public money for public goods, delivering an environmental outcome and contributing to achieving the 25-year environment plan.
Baroness Jones of Moulsecoomb (GP)
I thank the Minister for his reply, which sounds very optimistic. However, will these be compulsory? Will there be legislation about it? Will this sort of thing be in the Agriculture Bill so that re-wilding and creating such buffer zones can be absolutely everywhere, rather than just here and there?
Lord Gardiner of Kimble
My Lords, that is precisely why Clause 1 of the Agriculture Bill sets out that the Secretary of State may give financial assistance for, or in connection with, a number of purposes. One of those is,
“managing land or water in a way that protects or improves the environment”.
There is no doubt that there are nearly 100,000 acres of land in riparian buffer strips beyond two metres. We wish to continue with this because there are a lot of benefits to it.
Lord Robathan (Con)
My Lords, I declare an interest as a farmer. I endorse what the noble Baroness, Lady Jones, said. It is important that this money is devoted to things such as buffer strips. I also beg my noble friend that, when the new design is put into place, it is simple for everybody to understand and to pay. As he will know from the Rural Payments Agency, payments on the HLS have been disastrous for some farmers.
Lord Gardiner of Kimble
My Lords, having declared my interests, I have considerable sympathy with my noble friend. That is precisely why we are working and will be working with farmers, land managers, environmental experts and other stakeholders so that we get this precisely right and it is not over-bureaucratic but environmentally outcome-focused, which is so important.
Baroness Jones of Whitchurch (Lab)
My Lords, agriculture is now the number one cause of water pollution and is responsible for the largest number of serious pollution incidents. Of course, most farmers act responsibly to prevent soil run-off, pesticides and slurry polluting watercourses. However, does the Minister accept that to deal with the worst offenders—those who do not act on a voluntary basis—there must be a credible threat of enforcement of the regulations, whether now or in the future? At the moment that is sadly lacking.
Lord Gardiner of Kimble
Certainly, the “polluter pays” principle is very current, and this is obviously why we are consulting on the environmental principles and governance issue. The draft legislation on that will be published before Christmas, along with consultation results. It is important that everyone, wherever they are, concentrates on reducing pollution. That is of course one of the great advantages of riparian buffer zones of a certain dimension, because you get an enhanced advantage from that.
The Countess of Mar (CB)
My Lords, I declare my interests, as in the register. While I entirely endorse what the Minister said about improving the environment, could he please make sure that the waterways themselves are kept clear to prevent flooding? When riverbeds become swamped with weeds and things, the water will not flow through and away, which causes flooding.
Lord Gardiner of Kimble
The noble Countess raises an interesting point about pollution and the growth of algae and so forth in watercourses. Clearly, there is a balance to all of this, because part of the use of natural capital is indeed slowing the flow. The noble Countess is absolutely right that we need to ensure that watercourses are positioned so that there is a proper flow of water, but we also need to be mindful of the slowing of flow and the use of natural capital.
Lord Clark of Windermere (Lab)
My Lords, as the Minister knows, there is a considerable body of opinion among farmers that if they have to plant trees, they have failed in agriculture. What plans do the Government have to get across to farmers that forestry, woodland planting and farming are all part of the same show?
Lord Gardiner of Kimble
My Lords, I agree with the noble Lord; it is absolutely clear, coming from a farming background, as I do, that farming and the environment should be in harmony. To get the best produce, you need to look after the environment, soils and fertility—all this is interconnected. I have planted a few trees and they are immensely valuable, not only to the landscape but for shelter, enhancement of the environment and production.
Earl Cathcart (Con)
Would my noble friend agree that such environmental work has been undertaken by many farmers over many years? Some of the work is paid and some is not—like mine. Would he agree that food production must remain the prime objective for farmers, although not at any cost, obviously?
Lord Gardiner of Kimble
My noble friend outlines the importance of harmony. The economic benefit of pollinators and riparian strips, for example, to UK fruit, vegetable and oilseed rape production is estimated to be between £600 million and £700 million GVA per annum, so he is absolutely right. Yes, there are many examples of farmers, whether paid or unpaid, who have done a lot of environmental work. What we want to do with the environmental land management system is to enhance the environment and work with farmers.
Baroness Parminter (LD)
My Lords, Dame Glenys Stacey’s review of farmland inspection and regulation shows that farmers currently face a one-in-200 chance of being inspected because the Environment Agency has only 40 such officers nationwide. In the future, how will the Government ensure—particularly since the RPA will not be around to monitor cross-compliance—that the regulation of farming is properly funded so that wildlife and watercourses do not get damaged?
Lord Gardiner of Kimble
My Lords, I had the privilege of meeting Dame Glenys only last week, and I thank her for the considerable work she has undertaken for the nation. Clearly, it is important that farmers do the right thing and, coming from a farming background, my understanding and knowledge is that overwhelmingly, that is what they wish to do. They are overwhelmingly questioning what they should do, and that is one of the responsibilities that we need to undertake. Clearly, anyone who pollutes the land wilfully and negligently needs to be brought to book; that is important.
Global Fund to Fight AIDS, Tuberculosis and Malaria
(5 years, 4 months ago)
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Baroness Barker
To ask Her Majesty’s Government what assessment they have made of the results achieved in saving lives by the Global Fund to Fight AIDS, Tuberculosis and Malaria.
The Minister of State, Department for International Development (Lord Bates) (Con)
My Lords, the Global Fund to Fight AIDS, Tuberculosis and Malaria has helped to save 27 million lives since 2002. Deaths caused by the three diseases have been reduced by one-third in countries where the Global Fund invests. Despite impressive progress, however, there are significant challenges which require us to go beyond “business as usual” to achieve the 2030 targets.
Baroness Barker (LD)
I thank the Minister for his Answer. Successive UK Governments should be proud of the role this country has played in the Global Fund, which has a huge effect, not just by keeping millions of people alive, but also on the search for new medicines and vaccines. What do the Government intend to do to support the Global Fund in its upcoming sixth replenishment?
Lord Bates
The noble Baroness is right. This is an area where we can be proud cross-party of the commitment that has been made since the fund was started in the early 2000s. Successive Governments have committed to this, and the UK is now a leading force in this whole area. We are coming up to a crucial moment with the sixth replenishment of the Global Fund, which will take place next year. The investment case will be presented to potential donors in New Delhi in February and then it will be important for all countries to step up to the plate. The UK’s position—I am absolutely confident of this without prejudging it—will continue to be one of leadership and commitment, because it is working.
Lord Cashman (Lab)
My Lords, does the Minister agree that it is vital we maintain our commitment to the Global Fund and encourage other partners to do so if we are to achieve our ambition of zero HIV diagnoses by the year 2030 in line with the sustainable development goals?
Lord Bates
That is absolutely right. On the sustainable development goals to which all 193 nations are signed up, goal 3.3 is the specific commitment. If it is going to be met, nations will have to step up and put more funds on the table to ensure people get the treatments that are needed. In 2017, those diseases killed approximately 2.6 million people, so we are a long way off 2030. We have the technologies, but we need to make sure the resources are there so that they are delivered.
Baroness Hayman (CB)
My Lords, there is another commitment to which the Government are a party and that is the commitment made at the Commonwealth Heads of Government Meeting to halve malaria in the Commonwealth by 2023. The Global Fund has been absolutely crucial so far in the enormous achievements that we have made against malaria but, as the Minister said in his Answer to the Question, the achievements are in jeopardy if we do not go forward. Can he be even more positive about both the Government’s commitment to the sixth replenishment round and to persuading other Governments to meet their commitments too?
Lord Bates
I think that that is one reason we were party to the high-level meeting in the margins of the UN General Assembly in September, which sought to gather some momentum behind this issue. There are other challenges with malaria, which the noble Baroness, as someone who has championed this cause over many years in this House, will know, and they include antimicrobial resistance and insecticide resistance. The challenges, particularly in relation to malaria, are getting more difficult, and that is why we need the resources.
Lord Black of Brentwood (Con)
My Lords, can my noble friend tell us what plans the Government have to improve access to HIV treatment for children? Globally, only 52% of children living with HIV have access to antiretrovirals and, tragically, half of those without treatment will die before their second birthday. There will soon be a high-level discussion on scaling up early HIV diagnosis and treatment for children. Will the Government be sending a delegate to it?
Lord Bates
I cannot give an answer on that point, but I am very happy to write to my noble friend. He is absolutely right. We believe that this issue will be addressed in the investment case. It is also touched upon in the political declaration that accompanied the UN General Assembly high-level meeting. However, I will certainly write to him on the specifics of the issue and I thank him for raising it.
Lord Collins of Highbury (Lab)
My Lords, as many low-income countries graduate to middle-income countries, that could have a disproportionate effect on women and girls in particular where programmes require ongoing funding. Is DfID working with the Global Fund to ensure that transition policies are complementary and that no one is left behind?
Lord Bates
The noble Lord is right. Some middle-income countries, such as China, India and Indonesia, show the highest incidence of TB. The highest incidence of HIV/AIDS is to be found in South Africa, with an increasing number of instances in the countries of central and eastern Europe due to drug-related infections, so this has to be part of the overall effort. The noble Lord and I have often talked about the fact that the SDGs are very important because they focus on eradicating the disease rather than focusing on a particular geographic area.
The Earl of Listowel (CB)
My Lords, how has the Global Fund contributed to reducing the transfer of HIV/AIDS from mother to infant, and what progress has been made with regard to reducing maternal transfer?
Lord Bates
I do not have a specific answer to that, so perhaps I may deal with it in my written response to my noble friend Lord Black.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am sorry to prevent the noble Baroness asking a question, but I feel it is the turn of the Conservative Benches.
Viscount Ridley
My Lords, further to the question from the noble Baroness, Lady Hayman, about malaria, my noble friend will be aware that malaria mortality has halved in this century, which is a remarkable achievement. Seventy per cent of that reduction was due to a surprisingly low-tech innovation—namely, the insecticide-treated bed net, although, as my noble friend said, resistance is becoming a problem. Is he aware of research that is going on to improve the efficacy of insecticide-treated bed nets, and is this something that the British Government support?
Lord Bates
I am aware of the research. Precisely because of the insecticide and antimicrobial resistance that I mentioned, this issue will be addressed in our antimicrobial resistance strategy, which will be refreshed next year. However, I know that my noble friend takes a close interest in this technology, and I would be grateful if he would keep us informed of any initiatives or new ventures that he is aware of.
Airports: Disabled People
(5 years, 4 months ago)
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Baroness Campbell of Surbiton
To ask Her Majesty’s Government what action they are taking to encourage all United Kingdom airports to provide appropriate facilities for disabled people, particularly the provision of both self-propelled and non-self-propelled wheelchairs.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)
My Lords, regulations protect the rights of disabled people and all passengers with reduced mobility travelling by air. The regulations require that assistance to meet their particular needs should be provided at the airport, as well as on board aircraft, by employing the necessary staff and supplying equipment. Currently, the regulations do not specify the provision of particular equipment, but the aviation strategy Green Paper will consider how to improve the experience of disabled passengers throughout their journey.
Baroness Campbell of Surbiton (CB)
I thank the Minister for her reply. Is she aware that according to data from the Civil Aviation Authority’s own accessibility survey, out of 3 million requests for assistance made in UK airports last year, half a million people were unhappy with the assistance provided to them, and of those, one in 10 said that it was very poor? Examples include being left in a wheelchair, being left on an aeroplane, expensive wheelchairs being broken and, in my case, being left on an aeroplane for two hours because they refused to bring my chair to the plane door. In the light of this, can the Minister assure the House that the Government’s aviation strategy will contain more stringent ways to address this outrageous discrimination with more than just guidance and regulations that we know do not work? Will she also tell me how many disabled people were involved in developing the strategy?
Baroness Sugg
My Lords, I assure the House that the aviation strategy Green Paper due to be published in the coming weeks will indeed address these issues. The noble Baroness is right that, in a recent CAA survey, one in 10 passengers who requested assistance were fairly or very dissatisfied with the service provided. That is obviously not good enough. The Green Paper will propose a passenger charter, which will clarify what can be expected from airlines, airports and airside services, including on wheelchair damage and waiting times, and will improve the standards of service for passengers with reduced mobility.
Lord Hunt of Kings Heath (Lab)
My Lords, why do the Government not focus on enforcing the regulations that the Minister referred to? Surely that is what they ought to be doing at the moment.
Baroness Sugg
My Lords, it is important that we look carefully at the regulations. They include provisions, but, as I mentioned in my original Answer, some of them do not specify exactly what is needed. That is why we are looking to introduce a passenger charter, to more clearly set out what we think the standard should be. Through the strategy, we are also looking at strengthening the CAA’s range of enforcement powers to deal with instances where airlines or airports have not met their legal obligations. At the moment, we are not sure whether those are right, and so we are looking to strengthen those enforcement powers.
Baroness Brinton (LD)
My Lords, I thank the Minister for including me in the aviation round table earlier this year, where I had some hopes that both Heathrow Airport and some of the air companies were improving their practice. A fortnight ago, however, I travelled from Heathrow to Madrid and back. My experience included staff telling me that they could not lift my suitcase because they were not insured to lift suitcases on check in, and, despite a large orange label on my chair saying, “Bring to the plane at Madrid”, when I arrived I was told that I did not have a chair on the plane at all. I was then passed from pillar to post and was dumped in a corner facing a concrete wall by staff who were trying to sort out what was going on. I ended up in tears while they tried to find my wheelchair. If this were an unusual occurrence, it would be horrific, but it is not. What is even more horrific is that this happens every day to air passengers. Charters butter no parsnips: when will the regulations be enforced to stop air travel being a ghetto for disabled people?
Baroness Sugg
My Lords, I am incredibly sorry to hear of the noble Baroness’s experience. She is absolutely right that these occurrences happen far too often, and that is what we need to change. Today is the United Nations International Day of Persons with Disabilities, and it is important that we as a country continue to work with international forums to promote greater accessibility to air travel for those with reduced mobility. One of the main reasons for some of these issues is the provision of information, particularly on inbound flights and when people travel internationally. That is absolutely something that we should get right, and we will work with our international partners to try to do so.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, it is clear that some passengers can travel only if they are in their own wheelchair, as they are able to do on buses and trains. Why can the aviation industry not catch up with the rest of the transport sector?
Baroness Sugg
My Lords, we want to improve accessibility, not only at airports but in aircraft and we are working closely with industry to deliver changes in aircraft design. That will be for the slightly longer term. A number of issues are stopping people from travelling in their own chairs on planes—from ensuring that chairs can be tethered safely and safety issues around batteries to investigating flexibility in cabin seating to make it commercially viable for airlines. But I know that in order for some passengers to fly they of course need their own wheelchairs. I recently chaired a round table on that specific issue. We are working closely with the aviation industry, the CAA, wheelchair manufacturers and disability organisations to achieve the long-term goal of enabling wheelchair users to travel with their own airworthy wheelchair on a plane.
Lord Berkeley (Lab)
Is it not about time that the security rules were proportionate to the services? My stepson lost a leg some time ago and was forced to take off his prosthetic leg in Newquay airport in front of a lot of passengers and his family when he was flying on an international service to the Isles of Scilly. For goodness’ sake, surely there should be a rule to apply a little more common sense to such searches.
Baroness Sugg
My Lords, as well as setting the right standards for service, we need to ensure that all staff are properly trained to address these issues. We are including a proposed measure for training programmes to improve disability awareness for all customer-facing staff, be that at the border or for ground handlers, but including security staff as well.
Baroness Deech (CB)
My Lords, does the Minister not agree that the Government are lacking in sincerity in their attitude towards transport and the disabled? Although they have said that it is their wish to get more disabled people into work, not only is it difficult on aeroplanes, it is difficult on trains and taxis where the Government have failed to insist that every local authority has cabs that are designated to carry disabled people—it is a matter of chance. I hope that the Minister will agree that the Government simply must make more of an effort to get disabled people and older people on the move.
Baroness Sugg
My Lords, I absolutely agree that it is important to ensure that disabled people can access all modes of travel. In July this year, we published the Government’s inclusive transport strategy that sets out all our plans to make every mode of transport in the system more inclusive and better for disabled people. That includes the awareness and enforcement of passenger rights, staff training and improving information. I can reassure the noble Baroness that we are absolutely sincere in improving things. The department is working hard and I am personally committed to make flying by air better for disabled passengers.
Palace of Westminster: Restoration and Renewal
(5 years, 4 months ago)
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Baroness Rawlings
To ask Her Majesty’s Government which Government-owned properties the Office of Government Property has discussed with Parliament as possible relocation sites as part of the Restoration and Renewal programme.
Lord Young of Cookham (Con)
My Lords, as part of the Joint Committee work that helped to prepare for the restoration and renewal programme, the government property unit discussed potential temporary relocation sites with the R&R programme team—namely Richmond House and the Queen Elizabeth II conference centre. The Government Property Agency has continued to provide advice on those relocation sites, and of course the final decision will be a matter for Parliament.
Baroness Rawlings (Con)
My Lords, I declare my interests as set out in the register, and I thank my noble friend for his Answer. But can he give noble Lords an assurance that the grade 2* listed Richmond House, completed as recently as 1998, which is a major work by the architect William Whitfield, will not be substantially or partly demolished to make way for a temporary House of Commons Chamber; and, as importantly, that a full feasibility study of the alternative options and locations for this temporary Chamber will be carried out?
Lord Young of Cookham
My Lords, ownership and responsibility for Richmond House has now been transferred to the other place, where it forms part of its northern estate strategy. The other place is now looking at how Richmond House might be reconfigured to meet its needs. Any changes will require planning permission and listed building consent, and the other place is working very closely with Historic England in view of the importance of the building, which my noble friend has rightly pointed out.
Lord Howarth of Newport (Lab)
Does the Minister recall that when Richmond House was built 30 years ago, it was greatly admired; and as the noble Baroness has just said, it is only three years ago that it was listed grade 2*? The Minister talked delicately about reconfiguring, but would it not be an awful waste effectively to destroy the greater part of it to accommodate a temporary decant? Will he give the House an assurance that a full feasibility study of all other options will be carried out, including the suggestion that a temporary House of Commons Chamber be erected in the atrium of Portcullis House put forward by its architect, Sir Michael Hopkins?
Lord Young of Cookham
That suggestion by Sir Michael Hopkins was looked at by the Joint Committee and discounted for the reasons it has set out. As I said in response to my noble friend, the responsibility for Richmond House now rests with the other place because it is the legal owner. It will take on board the heritage issues which have just been mentioned. The building was, of course, substantially reconfigured in the 1980s before it became the headquarters for the Department of Health.
Lord Wallace of Saltaire (LD)
My Lords, do the Government have a plan for the development of Whitehall? In the past 25 years, three government blocks in and around Whitehall have been transferred to private ownership and converted into hotels. I wonder if they intend to move that further along Whitehall and take more departments out towards Marsham Street and Horseferry Road, or whether they think that the historic context of Whitehall departments grouped together is something that we ought to attach importance to at a point when the Department of Health has just had to move further away.
Lord Young of Cookham
The decision to transfer Admiralty Arch on a 99-year lease was one taken by the coalition Government. I think it was the right thing to do because that building was no longer required by the Government. It was costing nearly £1 million a year to maintain, and it needed substantial renovation. It has now been tastefully renovated in the private sector according to the original designs by Sir Aston Webb. Moreover, the Government still retain the freehold. That was a sensible decision which was taken by the coalition Government. More broadly, the number of civil servants is reducing. There are still 78,000 civil servants in London but many thousands will be relocated outside London as part of our industrial strategy. Those who remain will require some 20 buildings instead of the 65 that we have at the moment. But the core Whitehall estate will be sensitively managed with advice from the Government Historic Estates Unit. And as the noble Lord said, some government departments are already doubling up. The Treasury, DCMS and HMRC are co-located, as are the Home Office and MHCLG.
Lord Haselhurst (Con)
My Lords, does my noble friend agree that as long as the security level remains high, our choice of alternative accommodation is drastically curtailed unless one is going to consider further steps to enlarge the security circle around the parliamentary and other historic buildings in Parliament Square?
Lord Young of Cookham
My noble friend is absolutely right. One of the reasons why Richmond House was selected was the direct access to the rest of the Parliamentary Estate from that building, for security reasons.
Baroness Smith of Basildon (Lab)
My Lords, we all agree that it is important that we keep the costs down and ensure value for money during the restoration and renewal project. I turn to two specific areas, not about the Chambers but about the office location for Peers following decant. First, is it correct that available offices in government departments in Whitehall which were identified by the Joint Committee as possible office space have now been blocked and ruled out by the Government because they are being used by the additional staff who have had to be brought in for Brexit, thus forcing more expensive options to be considered for office space for Peers? Secondly, can he quantify the extra costs incurred by delay not only in terms of the additional maintenance and prevention work that is needed but also the increased costs of the work involved?
Lord Young of Cookham
On value for money, the Government have published a draft Bill. Under Clause 2(4), the sponsor body must ensure that the works represent good value for money. I was not aware of what the noble Baroness has just said about the government departments blocking access to buildings but I will make inquiries. If the noble Baroness is referring to the overall cost of the project, which is now estimated at some £3.52 billion, the overall management of the project is a matter for Parliament. It is not a matter for the Government. Responsibility will rest with the sponsor body, which is now being set up, and the delivery body. But, ultimately, it is not a matter for the Government; it is a matter for Parliament as to how this matter is progressed.
Counter-Terrorism and Border Security Bill
Monday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
15:49 - Division on Amendment 1 - Ayes: 93 / Noes: 198 - Amendment 1 disagreed.
18:01 - Division on Amendment 15 - Ayes: 220 / Noes: 191 - Amendment 15 agreed.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will speak at rather more length than I do normally. I thought that my amendment was explained clearly in Committee yet I had to table another amendment for today because the problem still exists. Therefore, I will try to explain it carefully, although I am not a lawyer. This issue depends on clear thinking and some common sense.
As I made clear in Committee, I am completely opposed to people encouraging the membership and support of terrorist organisations. I am also deeply opposed to the terrorism bogeyman being used to justify laws that are disproportionate and which undermine the rights of law-abiding citizens without good justification. The Minister did not adequately address my concerns in Committee, which reinforced my view that Clause 1 is currently far too broad, represents an unacceptable breach of human rights and risks criminalising a range of perfectly innocent speech. Amendments 1 and 2 in my name would make the new criminal offence a reasonable one. I believe that not making significant changes to this clause would be a clear breach of the European Convention on Human Rights. As drafted, the offence is too vague to accord with the law and too broad to be a proportionate way to achieve a legitimate aim.
The Minister confirmed to the Committee that the clause is a direct response to the case of R v Choudary, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:
“The Court of Appeal was clear that a central ingredient of the offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ … This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.
I covered the case in some depth in Committee so I will not repeat it in detail here, but the fact that the Government made it clear that the new offence is in response to the difficulties of prosecuting Choudary means that your Lordships’ House must understand Clause 1 in the light of that judgment. Let us not forget that Choudary was found guilty and his conviction was upheld by the Court of Appeal, so it is not as though there is some loophole through which he was able to slip.
I tabled two amendments to Clause 1 with the purpose of tightening this new offence to ensure that only people guilty of some wrongdoing will be guilty of a crime. The purposes of law and justice are not only to convict the guilty but to ensure that the innocent go free. In Committee, it was telling that the Minister, in response to my example of a political activist expressing support for an independent Kurdistan, had only,
“a very high level of confidence that they would not fall foul of the Clause 1 offence”.
Anything short of absolute certainty is proof that the new offence is far too broad and will criminalise perfectly innocent behaviour.
The new subsection is best understood when contrasted against the existing Section 12 offence in the Terrorism Act 2000. There are three key differences between the two offences: there is no requirement to “invite” in the new offence; the expression of an opinion which “is supportive of” rather than “supports”; and the watering down of the guilty mind from intention to recklessness. In my analysis, each of these three changes represents a significant broadening when compared to this existing offence. The proper change is the first: the legal requirement of having to invite support was too tight and allowed people such as Choudary to rigorously support terrorist organisations, as long as they did not invite anyone else to do so. The other two changes make this new offence far too wide, in a way that goes beyond the Government’s stated purpose.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick has added his name to this amendment. I want from these Benches to support the noble Baroness. At the previous stage of the Bill, I tabled a number of amendments, including to this clause, on behalf of the Joint Committee on Human Rights. I am not suggesting that it has in any way abandoned concerns about the Bill, but I do not now speak on its behalf, simply because we have not had an opportunity to consider further where the Bill has got to.
One of those amendments would have imported “supports” rather than “supportive”. “Supportive” seems far more open to interpretation than “supports”, the former being much more subjective than the more active “supports”, which is, as the noble Baroness said, the term used in Section 12 of the Terrorism Act 2000. Like her, I looked back at the debate in Committee and noted that the term used by the Minister during much of it was “supports”.
New paragraph (b), adding recklessness or intention to “supports”, creates a new and separate offence, although it occurred to me only yesterday that we might have amended “a proscribed organisation” to “the proscribed organisation”.
The existing Section 12 offence is very direct, referring to “invites support”, and in the context of a meeting, albeit a small, private meeting. Under new subsection (1A)(a), it will be an offence to express an opinion without mentioning a proscribed organisation. Many people in this Chamber could probably advise me of the answer to the following question. If were to say that I could understand that a 15 year-old girl in London might find herself persuaded or groomed to travel abroad to support freedom fighters in an area where Daesh was active and there had been plenty of press reports of the situation—I refer noble Lords to the splendid novel Home Fire by Kamila Shamsie if they want to be provoked to think further about what might underlie such a situation—would I be committing an offence? The answer is probably not in this Chamber, but if I did so at a meeting at a university with a young audience, I am not sure what my position would be.
Turning to “reckless”, I believe that I would be unable to rely on a defence similar to that in the existing Section 12(4) of the Terrorism Act, allowing a person to prove, with the application of Section 118, that he or she had no reasonable cause to believe that an address to a meeting would support a proscribed organisation. I would be hard put to think of a context—which I think was the term used by the noble Baroness, Lady D’Souza, at the last stage—other than something like this debate, where one could be fairly confident of expressing an opinion and not being reckless. The Minister in Committee focused on recklessness and said little about support or being supportive, so I look forward to hearing the response today.
Like the noble Baroness, we are not happy with how the Government appear to be moving against freedom of speech in this clause, but we have the opportunity here to make it somewhat more proportionate. I thought I should look at Article 10 of the Convention, on freedom of expression. Article 10.2 reminds us that the right is qualified— understandably, of course—in such a way as is,
“necessary in a democratic society”.
That phrase really struck home to me. I would like to think that what we are doing through the Bill is necessary in a democratic society. I am not persuaded by Clause 1 as it stands.
Lord Harris of Haringey (Lab)
My Lords, in considering the amendment of the noble Baroness, Lady Jones, we have to look at the two new paragraphs (a) and (b) together. In the Bill, the Government seek to eliminate various routes by which an ingenious individual who wants, in effect, to incite people to support a terrorist organisation might create a defence. It is a combination of the two new paragraphs that seems to me to be important. An individual might claim that that they are not supporting a terrorist organisation, but merely supportive of its objectives. They might express that supportive nature of the objectives in such graphic and bloodcurdling terms that it might be deemed to have an effect on those listening to those descriptions. But of course, if they then went on to claim that they had no intention of making people act and follow that particular terrorist organisation, they would be permitted to do so.
By including both being “supportive of” the general objectives and at the same time being reckless as to the consequences of that, the Bill seems to attempt to avoid those ingenious individuals proclaiming that in fact they are not encouraging people to join a particular terrorist organisation, but are merely being supportive of the objectives of that organisation and have no intention at all of making people take action on that. The fact remains that that they have been supportive of the organisation and at the same time reckless as to the consequences. My concern with the amendment is that it actually allows two routes by which people can claim a defence when they have clearly, in the most common terms, been trying to persuade people to support a terrorist organisation. That is why I think the combination of “supportive” with the reckless intent makes a degree of sense.
Lord Blair of Boughton (CB)
My Lords, I rise very briefly to say that it is a pleasure to follow the noble Lord, Lord Harris of Haringey, and that I completely agree with him.
Lord Carlile of Berriew (CB)
My Lords, I too agree with the noble Lord, Lord Harris. It seems to me that this clear provision provides four steps which have to be proved before somebody can be convicted of the crime set out in Clause 1. The first step is that they must say something deliberately, whether orally or in writing in some form, including on the internet. That requires them to act purposefully—it is a deliberate expression. Secondly, it must be supportive of something. Thirdly, it must be supportive not of anything at all but of a proscribed organisation—one that is forbidden by law to join in any event. Fourthly, they must consciously disregard the risks flowing from their action. That is the component of recklessness. So, with great respect to the noble Baroness who moved the amendment, I fear that she may have misunderstood what is provided by assuming that some vague general expression might be taken as committing the offence.
Lord Paddick (LD)
My Lords, I will not go over the arguments again. The noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Hamwee made clear the points that the Supreme Court had concerns about in the case of Choudhary and that the Joint Committee on Human Rights expressed regarding the provisions in the Bill.
Of course, these are two separate amendments. They propose either something more definitive than “is supportive of”, or, if you keep “is supportive of”, that there should be a degree of intention. I saw the Minister nodding vigorously when the noble Baroness, Lady Jones, suggested that Amendment 2 would actually be no change from the status quo and therefore would in effect nullify the provision, and I have some sympathy with that, but these are two separate amendments and therefore can be taken separately.
In response to the noble Lord, Lord Harris of Haringey, yes, one can see how this is constructed so that an ingenious speaker might wheedle their way through and evade justice, but the problem that my noble friend has identified is that a naive 13 year-old who innocently makes a remark would be caught by this. I accept what the noble Lord, Lord Carlile of Berriew, says about the CPS code of charging but that would not stop that 13 year-old being arrested and detained by the police. I will come back to this theme when we debate the next group of amendments. I do not want to develop that argument now.
Lord Carlile of Berriew
I say this with great deference to a former senior police officer, but surely the arrest conditions would not apply to that 13 year-old and the arrest would therefore be unlawful. The police cannot arrest unless the arrest conditions apply, and one is necessity.
Lord Paddick
I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.
Lord Judge (CB)
My Lords, I cannot agree with everybody. The noble Lord, Lord Harris, made the crucial point that both these provisions have to be read together. This is a single policy decision. We have talked about 13 year-old boys but let us try a different example: the ANC when Mr Nelson Mandela, one of the heroic figures of the last century, was a member of that organisation. Undoubtedly it did, and was minded to, use what we would all call terrorism in the cause of defeating apartheid. There is no problem about arresting him. I consider it perfectly possible for an individual to say, “I entirely agree with the aims of the ANC—the idea that a man or woman should be distinguished against because of the colour of his or her skin is simply unacceptable. But I disagree with using bombs to achieve that objective”. They would therefore, using perfectly ordinary English language, not be supporting the ANC. But in saying, “I find that its objectives are entirely admirable and I agree with them”, they would be supportive of it. The distinction between these two words is rather significant and merits consideration. I respectfully suggest that we should go to either “supports” and “reckless”, or “supportive of” and “intent”. Either way, those alternatives would have identified a significant piece of conduct which ought to be criminalised.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendments 1 and 2, in the names of the noble Baroness, Lady Jones, and the noble Lord, Lord Paddick, concern issues that we discussed in Committee. I listened carefully to the debate then and have listened carefully to the debate this afternoon. I have great respect for the noble Baroness but I want to make it clear that if she puts her amendment to the vote today and divides the House, we will not be with her. For me, the crucial word is “and”, which links new subsections (1A)(a) and (1A)(b). My noble friend Lord Harris of Haringey made the point that we need to read and consider both paragraphs together.
In Committee, the noble Lord, Lord Carlile, put it much more eloquently and succinctly than I can and he has done so again today. In Committee, he said:
“First, it recognises that even in this relatively gun-free”,
society,
“if someone expresses support in a certain way for a proscribed organisation, it may put some of our fellow citizens in mortal danger of their lives.”.
He went on:
“It does not criminalise the expression of support, rather it forbids and criminalises the expression of support on certain terms as set out in proposed new Section 1A(b), and that is the test of recklessness. Recklessness requires awareness of the risk that is being taken by the speaker”.—[Official Report, 29/10/18; cols. 1130-31.]
I agree very much with that position and, on the basis of it and what I have heard today, we will not support the noble Baroness in the Lobbies today. I did not accept at all her point that you can be supportive of an organisation but not support it. I think that if you are supportive of it, you do support an organisation. The clause as drafted is reasonable and, for me, it strikes the right balance.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank noble Lords who have spoken in this debate and particularly the noble Baroness, Lady Jones, for moving her amendment. She has set out her position on this clearly and consistently, but I hope that your Lordships will indulge me if I rehearse the reasons why the Government cannot support the amendments.
As the noble Baroness said, Clause 1 amends Section 12(1)(a) of the Terrorism Act 2000, under which it is currently an offence to invite another person to support a proscribed terrorist organisation. An invitation in this context may be explicit or indirect, and may be implicit or opaque, but for a conviction to be secured the prosecution must be able to prove that the person intended to influence others to support the terrorist organisation. I recognise that, when considered in the abstract, this may appear to be the right threshold for the offence. However, in its operation it has been shown to leave a significant gap in the ability of the police, the CPS and the courts to act against hate preachers and radicalisers, as noble Lords have pointed out. This is because such individuals will often be careful to err on just the right side of the law. They will express opinions and beliefs which, in the judgment of a reasonable person, would be likely to have the effect of encouraging others to support proscribed terrorist groups but will stop short of statements which would go far enough to allow the CPS to prove that they intended such encouragement. This is despite them clearly and unambiguously risking harm to the public by virtue of their expressions.
This gap is illustrated by some of the cases to which I have previously drawn the House’s attention, and which were described by Assistant Commissioner Neil Basu in his evidence to the Public Bill Committee in the House of Commons. I urge noble Lords to examine that evidence carefully. In those cases, it was not possible to prosecute prolific and high-profile preachers of hate who had made highly inflammatory public speeches which were very clear about the speaker’s own support for terrorist organisations and methodology and which were on any reasonable assessment likely to cause their audience to be influenced to support a proscribed organisation. They included open admiration for Daesh and other terrorist groups and praise for their methods, ideology and activities.
However, I hope I will reflect the views of many noble Lords when I say that the current position strikes the wrong balance if it allows such obviously harmful behaviour to go unchallenged. This is behaviour that can have a powerful effect in initiating or moving along the process of radicalisation. There are radicalisers and hate preachers who have, time and again, been shown to have played a prominent and influential role in the backgrounds of those who have been convicted of planning or carrying out terrorist attacks.
Clause 1 is intended to close the gap I have described by bringing within the ambit of the Section 12(1)(a) offence individuals who are reckless as to whether they will cause this harm to arise. We have previously debated what is meant by “reckless”, but I think it is worth briefly setting this out again, before I turn to my concerns with the noble Baroness’s proposed amendments to Clause 1.
To answer the noble Baroness’s question, the term “reckless” is a well-established and well-understood concept in the criminal law, and one with which the courts are familiar, in particular as a result of clear case law established by the then Appellate Committee of this House in 2003 in the case of R v G and another. A person acts recklessly where he or she is aware that in the circumstances there is a risk that their conduct will result in the proscribed outcome, and they none the less engage in that conduct in circumstances where a reasonable person would not.
So, under Clause 1, a person might act recklessly if, in the course of addressing an audience consisting primarily of individuals whom he believes are of an Islamist extremist mindset, he speaks of his own support for Daesh, believing he has a degree of influence over the audience and being aware of the risk that members of the audience will be influenced by him to support Daesh. I hope noble Lords will not disagree when I say that a reasonable person would not, and should not, proceed to make that speech in those circumstances. A person who none the less does so would therefore be doing so recklessly. It may not be possible to prove beyond reasonable doubt an intention to influence their audience to support Daesh, but I consider it appropriate and proportionate that the courts can hold them to account if they are reckless in this way. Clause 1 will ensure that this is the case.
Turning now to Amendment 1, the noble Baroness, Lady Jones, set out a concern that the reference to a statement that is “supportive” of a proscribed organisation might risk a person being found guilty of a terrorism offence having tweeted their support for a legitimate political objective which happens to be shared by a proscribed terrorist organisation. She gave the examples of support for an independent Kurdistan and for the withdrawal of Israeli troops from the Occupied Territories, both of which are entirely legitimate standpoints but which are also objectives of, respectively, the PKK and the military wings of Hamas and Hezbollah. I have previously assured her, and I am happy to repeat those assurances, that this is not the case. In her example, there would be no suggestion that the person supported terrorist methods to achieve the political objectives to which they aspired or that they supported any proscribed terrorist organisation. There would, therefore, be no basis on which a reasonable person might equate such a statement with support for the PKK or for the proscribed wings of Hamas or Hezbollah or might anticipate that a listener would be influenced to support those organisations. As such, the statements would not meet the recklessness test and would clearly not be caught by Clause 1.
The noble Baroness further highlighted in Committee that the existing Section 12(1)(a) offence refers to,
“inviting support for a proscribed organisation”,
whereas Clause 1 refers to,
“opinion or belief that is supportive of a proscribed organisation”.
She suggested that “supportive” is, intentionally, a broader wording, which will cast the net of the offence more widely than would be the case if the word “supports” were used instead.
I think we are all clear that there is no difference in meaning in the context of the drafting. The existing Section 12(1) offence criminalises those who invite others to support a terrorist group. That word has the wider meaning that the noble Baroness described, repeating what the court said in Choudary, but in the new offence, we are talking about an opinion or belief. As a matter of syntax, an opinion or belief cannot support an issue; a person supports something. That is why parliamentary counsel has used the word “supportive” here. There is no intention to introduce a wider concept than the existing offence. Crucially, new Section 12(1)(b) requires that a person will be encouraged to support a proscribed group by the expression.
However, I can offer the noble Baroness a clear assurance that it would in any event have no meaningful impact on the effect of the clause, the scope of the offence or the range of causes that would be caught by it. This would be exactly the same whichever formulation were used.
Amendment 2 would remove the recklessness test and replace it with one that effectively repeats the existing position in the Section 12(1)(a) offence, so it would still be necessary to prove the same deliberate act of invitation to support.
The noble Baroness has made it clear that she does not support the purpose of Clause 1, and I respect that view, even if I do not agree with it, but I should make it clear to noble Lords that the amendment would entirely nullify the utility of this clause and, as such, were it to be made, we might as well simply strike the whole clause from the Bill.
I hope that with that explanation, noble Lords are satisfied and the noble Baroness will feel able to withdraw her amendment.
Lord Paddick
Before the noble Baroness sits down, perhaps she might address the remarks of the noble and learned Lord, Lord Judge.
Baroness Williams of Trafford
I heard what the noble and learned Lord, Lord Judge, had to say, but I do not agree. I hope that the reasons I set out explained why I do not agree.
Baroness Jones of Moulsecoomb
I thank the Minister for her assurances. I do not accept that Amendment 1 nullifies Clause 1; that is not true. I thank the other noble Lords who have spoken this afternoon.
I feel that I represent in this House someone against whom the law has been used illegally on other occasions. I am very law-abiding, I am extremely respectful of the law, but, at the same time, I have been targeted by the police. Therefore, I come from a particular perspective, which is that if definitions are not tight enough, they can be used against the innocent. This is personal. I have been in your Lordships’ House for five years and feel passionately about a lot of issues and have moved amendments to many Bills, but this is the first time that I am moved to divide the House.
Lord Paddick
Lord Paddick
My Lords, Amendment 3 is in my name and that of my noble friend Lady Hamwee. I will speak also to our other amendments in the group, Amendments 4, 5, 8 and 9.
It is a little confusing, but Amendment 15, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, was initially in this group, because it deals with it not being an offence to go to a designated area if you have good reason to do so. However, because Amendment 15 also contains a list of reasons that would make it legitimate for you to go to a designated area, it conflicts with the government amendment in group five and has therefore been placed in that group. However, with the leave of the House, I will address in this group the element of Amendment 15 that relates to something not being an offence.
I will start with the offence of being in a designated area, which is the subject of Amendments 8, 9 and 15. Noble Lords are rightly exercised about humanitarian aid workers, journalists and others going to a designated area and committing an offence—to which charge there is a defence, but apparently the defence cannot be mounted unless and until somebody has been charged. This means that those wishing to see a seriously or terminally ill relative, to use another example, may well be deterred from making the journey as, in the way the law is currently drafted, they will commit an offence whatever reasonable excuse they may have.
Our Amendments 8 and 9, and Labour’s Amendment 15, which we will debate in group five, effectively seek to put the reasonable excuse up front so that people are able to travel to a designated area with good reason, safe in the knowledge that, provided that the purpose of their visit is reasonable and legitimate, they will not be committing an offence. The wording we have used is similar to that in the Prevention of Crime Act 1953: the offence of possessing an offensive weapon in a public place,
“without lawful authority or reasonable excuse”.
In the case of offensive weapons—there is a precedent for this approach—a person does not commit an offence if they have lawful authority or reasonable excuse. This is instead of committing an offence and being able to use a reasonable excuse defence if and only if charged.
As the Bill is drafted, the person charged with an offence can tell the court that they have a reasonable excuse and the prosecution would have to prove that this was not the case. Section 118 of the Terrorism Act 2000 states that if the accused,
“adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
What then would be the drawback of saying that someone does not commit an offence, if they have evidence that is sufficient to raise an issue that amounts to a reasonable excuse with respect to entering or remaining in a designated area? If the police have evidence that the person is not intending to travel for the purpose for which there is a reasonable excuse, or that they did not engage in the activity that they said was the purpose of their visit, when they return to the UK the person can be arrested on the grounds that the police have reasonable cause to suspect that they may be about to commit, or have committed, an offence: that is, travelling to or remaining in a designated area without reasonable excuse.
At this point, I will address an issue raised by the noble Lord, Lord Carlile, on a previous group. The fact is that the grounds on which a police officer can make an arrest are very low. A constable can, for example, arrest somebody whom they have reasonable cause to suspect may be about to commit an offence. That is a very, very low threshold, and much lower than in the CPS charging guidelines. I give way.
Lord Carlile of Berriew
The noble Lord has read out only part of the grounds for arrest. There has to be a necessity for arrest. If he is going to read out the arrest conditions to your Lordships’ House, he should read them all, because necessity is essential.
Lord Paddick
I know that I am taking my life in my hands by arguing with a lawyer, but I believe that the noble Lord is referring to the Human Rights Act, which requires necessity and proportionality before the officer exercises the power of arrest. However, under the Police and Criminal Evidence Act, the constable can arrest somebody if they have reasonable cause to suspect that they may be about to commit an offence—which is what I have just said.
The advantage of legislating this way round, as proposed in the amendments, is that, if people are visiting sick or dying relatives, or are aid workers or journalists and have a genuine reason for travelling, they will not be committing an offence and will not be unreasonably deterred by the fear that they may be arrested, either on their way to or their return from a designated area.
Lord Carlile of Berriew
I am sorry; I cannot let this pass. If the noble Lord were to look at Section 110 of the Serious Organised Crime and Police Act 2005, he would find that one of the arrest conditions is that there has to be a necessity. Section 110(4) includes the words,
“exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question”.
That is why reasonable suspicion is not a sufficient ground for arrest—and we need to be clear about that.
Lord Paddick
Sadly, I do not have the legislation in front of me, so I cannot comment. No, I will not accept the noble Lord’s offer of taking his iPad to look at the legislation. I do not think that that is reasonable in all the circumstances.
If we accept that this is a reasonable way to approach the issue—that someone does not commit an offence if they have a reasonable excuse—what, then, is the difference between that and a journalist or academic being able to access material on the internet? They would be safe in the knowledge that, provided the purpose for visiting a website containing information that might be of use to a terrorist was reasonable and legitimate, they would not commit an offence.
I argue that the only difference is that here someone is entering into or remaining on a designated website rather than a designated area. Websites that contain information that might be of use to a terrorist are, if you will, designated areas of the internet, so entering or remaining on that website is an offence. Our Amendment 4 would ensure that it would be an offence only if a person collected, made a record of, possessed a document relating to, viewed or otherwise accessed by means of the internet information of use to a terrorist and they did not have a reasonable excuse for having or accessing that information.
Amendment 5 is consequential in that it would remove the “defence if charged” provision, which would be redundant were Amendment 4 accepted.
Turning to Amendment 3, similar arguments apply to the innocent or inadvertent publication of an image of a uniform or a flag. The ISIS flag on a friend’s bedroom wall that goes unnoticed when a selfie is posted on Facebook, which may well arouse reasonable suspicion that those in the picture support a proscribed organisation, could very well be an innocent or stupid mistake. Should the young person responsible be able to provide a simple and compelling excuse for his actions to the police officer on the doorstep rather than in an interview under caution, would that not be a better outcome?
There is nothing to be lost in having offences that are offences only if there is no reasonable excuse for the suspect’s actions. Police officers who fail to be convinced that the excuse is reasonable at the time they decide to make the arrest or who feel that the excuse might sound reasonable but needs to be verified would still have reasonable cause to suspect that the person might have committed an offence and arrest the person if it is necessary and proportionate to do so. However, it also provides the person accused of committing the offence with a legal remedy, and the police with a good reason to act reasonably, if there is clearly a reasonable excuse that is blatantly obvious and easily verifiable at the time of the arrest, yet the person is still deprived of their liberty.
I admit that the designated area offence and the obtaining or viewing of material offences have a more compelling claim for a “reasonable excuse means no offence” modification but there are circumstances where there might be a reasonable excuse for publishing an image in such a way or in such circumstances as to arouse suspicion that the person is a member or supporter of a proscribed organisation when they are neither of those things, and this will be immediately apparent to the officer sent to investigate. In my view, it is too late in the chain of events that could ensue for the reasonable excuse to be available only as a defence once charged.
No doubt the Government will say that the police can be trusted not to arrest in circumstances where a reasonable excuse is immediately apparent. With over 30 years of police experience and having witnessed at first hand the devastating consequences of innocent people being arrested and detained on the flimsiest of evidence, I am very concerned about the potential for abuse that this legislation as currently drafted provides.
Unless the Government can provide compelling reasons as to why the “reasonable excuse” defence should not engage at the beginning of the investigative process rather than at the end, I suggest that they might want to consider these arguments and undertake to discuss them further with interested Peers before Third Reading. If, however, when we come to debate his amendment in the fifth group, the noble Lord, Lord Rosser, decides that in the case of designated areas the arguments are compelling and the Minister’s response is inadequate, we will support him if he decides to divide the House on that issue. I beg to move.
Lord Rosser (Lab)
We support the concerns that have been expressed by the noble Lord, Lord Paddick, that, under the wording of this Bill, a person could potentially be deemed to have committed an offence even though they were pursuing a legitimate business or activity, or, in the case of a designated area, simply by entering the area itself. That specific issue is addressed in Amendment 15, to which the noble Lord, Lord Paddick, referred. As I say, we support the concerns expressed about the extent to which people with legitimate business or activity could potentially find that they have committed an offence under the provisions of this Bill.
Lord Judd (Lab)
My Lords, I declare an interest because of my professional and voluntary past, as recorded in the register. We are touching on immensely significant issues. I have great respect for those responsible for the grouping of amendments, and have seen its effectiveness over many years, but there are occasions when the overlap between two different groups becomes particularly significant.
I note that the amendment from the noble Lord, Lord Paddick, which deals with the matter that I am about to raise in specific terms, is equally significant and perhaps more controversial in this area. I am talking about the invaluable and courageous contribution made by dedicated people to the long-term task of peacebuilding. They go into an area for a long period of time and become what might be referred to in other spheres as embedded—they become part of the local population by the very nature of their work. They are trying to build the reconciliation and understanding which is necessary for a long-term solution.
Unfortunately, we are limited by the grouping of the amendments. I have had a certain amount of discussion with those responsible and very much value, as I always do, their advice. However, it is fair to say that I am uneasy. It seems to me that by the very nature of the work of peacebuilding—sometimes having to get close to people who are not necessarily very attractive or who are controversial—people could give a police officer grounds for arrest on the basis that we have heard explained.
It is therefore absolutely essential that at every moment in our relevant discussion of this part of the Bill, the Minister is at pains to spell out that bona fide peacebuilders are exempt and protected. Otherwise, this could have terrible dumbing-down effects on those who would be anxious to do such work. It would put great strain on them in terms of what could happen to them and would therefore hamper their work considerably. If that were to happen, it would be a great loss. No matter how important the humanitarian dimensions—humanitarian aid and the rest, to which I will take second place to nobody in terms of my support—it is very often in this area of peacebuilding that the really significant work for the future is undertaken. I therefore hope that the Minister will take this point seriously and perhaps take the opportunity to pay tribute to those who sometimes undertake this work, and that we can be sure that exemptions in any other sphere, in all aspects of the operation of the Bill, apply in this case.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Paddick, for taking us through an explanation of his amendment and explaining it with reference to Amendment 15 and his point about people who have a reasonable excuse.
In relation to viewing terrorist information in Clause 3 and entering or remaining in a designated area in Clause 4, the amendments would reconfigure the offences. Rather than the person who committed the offence of engaging in prohibited conduct being acquitted because they use the defence of having a reasonable excuse, there would instead be an exception—they would not be capable of committing the offence in the first place in circumstances where they have a reasonable excuse.
In relation to the offence of publishing images under Clause 2, there is currently no “reasonable excuse” defence. Rather, the offence is committed only if an image of an article is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. Amendment 3 would insert the same reasonable excuse exception that I have just described, which would operate in addition to the reasonable suspicion requirement concerning the circumstances in which the image is published.
Noble Lords have set out their arguments that there should be, at the outset, no question that a person might be guilty of an offence if they have a reasonable excuse for engaging in the activity covered by these offences. It has been argued that that approach will prevent the CPS from charging a person in these circumstances rather than the person potentially being charged and then having to invoke a “reasonable excuse” defence. I recognise that the approach of structurally rearranging the legislation may seemingly provide a greater degree of comfort to a person who finds themselves under suspicion in respect of one of these offences despite having a reasonable excuse, but I am not persuaded that these amendments would secure the outcome sought in relation to Clauses 3 and 4.
Amendments 4, 5, 8 and 9 are unnecessary as they would, in practice, make no material difference to the position of subjects of investigations and of defendants facing a charge under these clauses or on the matters that the prosecution will need to prove and that the court will need to resolve.
We have debated how the existing safeguards influence investigative and prosecutorial discretion, and how they prevent cases from proceeding where there is evidence that the person has a reasonable excuse. The amendments in my name which expand on these provisions in Clauses 3 and 4, and which we will shortly come to, will strengthen these safeguards further by providing indicative lists of reasonable excuses.
I shall go briefly over this ground again. Charges may be brought only if the CPS determines that the full code test is met. This is met only if there is evidence to provide a reasonable prospect of conviction, and if so, whether a prosecution would be in the public interest. Those are very important points. If there is evidence to suggest that the person has a reasonable excuse for engaging in the otherwise prohibited conduct, there will not be a reasonable prospect of conviction because they will be able to successfully invoke the “reasonable excuse” defence. Furthermore, it would not be in the public interest and would be fundamentally inappropriate for prosecutors to charge a person who they believe is likely to be innocent of any criminal conduct as a result of having such a defence. The effect of this is the same as that envisaged by the noble Lord’s amendments. In either case, the CPS will not bring a prosecution if there is evidence that the person has a reasonable excuse which the CPS considers could not be disproved by the prosecution beyond reasonable doubt.
Furthermore, neither the existing model nor that proposed by the noble Lord provide immunity from either investigation or prosecution purely on the basis that the person states that they have a reasonable excuse. Under either model, the police will need to investigate the person to establish what activity they have been involved in and whether they may have a reasonable excuse for it, and to gather evidence.
It will rightly remain open to the CPS to prosecute if it believes, following the investigation by the police and on the basis of the evidence gathered, that the person does not have a reasonable excuse, despite any assertion that the person might make to the contrary. Under either model it would then be for the person to advance their reasonable excuse, for the prosecution to disprove it beyond reasonable doubt, and ultimately for the jury to determine whether or not it is a reasonable excuse. Unless we were to introduce a unilateral immunity from prosecution for any person who declares themselves to be innocent, this must always be the position and the noble Lord’s amendments would not change it.
Although these amendments would not make a significant change to the practical operation of the law in this area, they would depart from the commonly taken approach in the criminal law where offences provide a “reasonable excuse” defence. In particular, they would overturn what is a well understood and settled position, with clear case law, in relation to Section 58 of the Terrorism Act, which Clause 3 amends. I do not think that it would be wise to do so unless there was a very persuasive case for it, which I do not think is being made here.
I turn finally to Amendment 3. Clause 2 in its current form does not make any provision in relation to reasonable excuses. But it is not an offence of strict liability and it cannot be committed by the mere fact of publishing an image. Rather, it is committed only in particular circumstances which the prosecution is required to prove beyond reasonable doubt. These are where the image is published in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.
We have previously debated the operation of this aspect of Clause 2, and I am happy to reiterate the Government’s clear position that it will provide both certainty and protection for those who have a legitimate reason to publish images of flags or other articles associated with proscribed organisations, and who are not themselves members or supporters of the organisation. This clear limitation on the scope of the offence is the best way to provide a safeguard for individuals such as journalists or historians, and the addition of a reasonable excuse provision is not necessary in addition. Indeed, it would be likely to overcomplicate and undermine the operation of the offence.
The Government do not consider that a person should in fact have a reasonable excuse for publishing such an image in circumstances which do not meet the criteria of the offence; that is to say, where a court is satisfied that the circumstances give rise to a reasonable suspicion that the person is a member or supporter of a terrorist organisation. Indeed, I would query whether there is a scenario which would not be covered by the existing safeguard but which should be considered a reasonable excuse. I cannot think of one. For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Paddick
I am grateful to the Minister for her explanation. The Government seem to be relying on the CPS charging decision, which is very different from the decision that an operational police officer in an uncontrolled environment makes at the time about whether to arrest or not to arrest. The Minister said that there was no material difference, which there is not in terms of successful prosecution. However, it makes a difference to the likelihood of a person being arrested or people being deterred from engaging in completely legitimate activity for fear that they may be arrested, whether they have confidence in the police making the right decision or not.
The Minister talked about a commonly taken approach in law, yet I gave the example of the Prevention of Crime Act 1953, where a person does not commit an offense of possessing an offensive weapon if they have “lawful authority” or “reasonable excuse”; that is determined by the operational officer on the street at the time. I am afraid that I find few of the Minister’s arguments compelling. However, we will return to this issue, particularly in relation to designated areas, when we come to the fifth group of amendments. I beg leave to withdraw the amendment.
(b) the person’s action or possession was for the purposes of—(i) carrying out work as a journalist, or(ii) academic research.”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we have had detailed and insightful debates on Clause 3, particularly on the operation of the “reasonable excuse” defence in Section 58 of the Terrorism Act 2000, which Clause 3 amends. Amendment 6 responds to arguments made in both Houses that we should provide greater certainty that particular categories of legitimate activity will constitute a reasonable excuse.
As I explained previously—and as my right honourable friend the Minister for Security and Economic Crime explained in the House of Commons—it is clear that those engaged in legitimate journalism and academic research have been able to rely on the “reasonable excuse” defence provided by the Section 58 offence in its present form since it was passed in 2000. The Government have been equally clear that this will continue to be the case under Section 58 as it will be amended by Clause 3.
We have also set out the longstanding legal position, codified by the Appellate Committee of this House in a 2008 judgment, that it is for the jury to determine whether a particular excuse in a particular case is reasonable on the basis of all the evidence in that case. Such a determination will always be highly fact-specific; it is not possible to prescribe particular exemptions or reasonable excuses in advance and in the abstract. The Government have therefore taken the approach until now that it has not been necessary to write these categories of reasonable excuse into the Bill.
However, we have heard the points made by your Lordships and reflected on the concerns raised. We recognise that the Government’s assurances have not satisfied noble Lords thus far as to the protection afforded to journalists and academics by Section 58, and which will apply following Section 58 as amended by the Bill. It is clear that the Government need to go further and provide greater assurance. In that spirit, we tabled Amendment 6.
The amendment will make it clear in the Bill that it will be a reasonable excuse for a person to access terrorist material falling under Section 58 for the purposes of academic research and carrying out work as a journalist. This will apply both to the existing limbs of Section 58—that is, the collection, possession or making a record of such material—and the new limb of viewing material online, which Clause 3 will insert. The amendment will underline and put beyond doubt the position already set out by the Government. I hope that it will be welcomed by your Lordships as providing the necessary assurance to those working in the fields of journalism and academia who have a legitimate reason to access terrorist material.
The amendment has been carefully drafted so as to complement, rather than overturn, the existing legal position relating to reasonable excuses. Clause 3(4) already provides one example of a case that may constitute a reasonable excuse, which is where the defendant did not know and had no reason to believe that the material in question contained information likely to be useful to a terrorist. The amendment expands on that to additionally provide the two examples I mentioned.
I stress that this is an indicative rather than exhaustive list of cases that may constitute a reasonable excuse, and it will remain open to defendants to advance other types of reasonable excuse. This will ensure that we retain the flexibility to cover other unforeseen circumstances that may arise, and that we do not inadvertently close off the “reasonable excuse” defence to those who may have an equally reasonable excuse of a different nature. I appreciate this construction is not self-evident from the Government’s amendment, so I understand why the noble Lord, Lord Paddick, tabled Amendment 7. But key here are the words,
“but are not limited to”,
in new subsection (3A) of Section 58 of the Terrorism Act 2000. That qualification will apply to the new paragraph (b) inserted by the Government’s amendment. All will become clear once the Bill is reprinted after Report.
Amendment 6 does not provide an absolute and automatic exemption for any person who states that they are a journalist or academic. That would not be appropriate, and it would move away from the position established in case law by this House. In Committee, a number of your Lordships highlighted the difficulties in legislating to differentiate legitimate journalism from that which may be carried out by a person with more nefarious intentions, whether as a cover for their true activities or as a platform to propagate their terrorist views. The approach we are taking will ensure that juries will be able to make such distinctions in individual cases, based on the particular facts.
I hope that Amendment 6 will be welcomed as addressing the concerns that have been raised, and as offering a meaningful compromise to those noble Lords who have raised them. I commend it to the House and I beg to move.
Amendment 7 (to Amendment 6)
Baroness Hamwee
Baroness Hamwee
My Lords, the noble Earl says that all will become clear. I am afraid that I have another question for him that occurred to me quite close to the debate: where do you put paragraph (a) in new subsection (3A)? I can see three places where it might go. Depending on the answer I will be even more welcoming of the Government’s amendment. It could go after the words “subsection (3)”, after,
“but are not limited to”,
or after “action or possession”. There might be other places as well. The noble Earl might want an opportunity to consider that.
We welcome the explicit safeguard, but our concern is that streaming by someone through,
“foolishness, inquisitiveness or curiosity, without intending to do harm”,—[Official Report, 29/10/18; col. 1168.]
were actions for which the Minister expressed “sympathy”. He went on to say that the offence was,
“aimed at those of a terrorist mindset”.—[Official Report, 29/10/18; col. 1167.]
Journalism, academia and, no doubt, other appropriate applications of inquisitiveness are relatively limited. If you are inquisitive, you will very probably have had reason to believe that the record is likely to contain information useful to someone preparing an act of terrorism. I do not ignore the CPS code test, but I am left with an uncomfortable feeling that the government amendment might narrow the offence and that Clause 3 remains rather wide.
Baroness Jones of Moulsecoomb
My Lords, I want to put on record my thanks to the Government for listening to the concerns expressed in Committee on this issue and welcome the amendment with the caveats that we have just heard from the noble Baroness, Lady Hamwee.
The Marquess of Lothian (Con)
My Lords, as my noble friend the Minister will know, the committee which I have the honour to serve on behalf of this House along with the noble Lord, Lord Janvrin, produced a report 10 days ago on the lessons to be learned from terrorism incidents last year. One of the points that we made was that in most of, if not all, those incidents, the perpetrators had had access to the type of extreme material covered by this Bill and clause. We therefore support the way in which the Bill is being amended and developed today, because it provides another safeguard against one area where radicalisation can take place leading to terrorism incidents in due course. That is the position of my committee—I am sure that the noble Lord, Lord Janvrin, would accept that.
Can we have a definition of “academic”? I presume that it is not limited just to professional academics, because that would be very restrictive. There is a lot to be said for learning lessons from terrorism incidents, with those doing that type of work, including the committee of which I am a member, having access in order to see what type of material is leading to the radicalisation taking place. I hope that the Minister will be able to reassure me that “academic” would cover that area.
My other point relates to “journalist”. I may be behind the times and not know how it is defined in law, but “journalist” seems a very broad definition. There are professional journalists—I quite accept that this amendment should cover them—but there are in my experience other journalists, some of whom call themselves bloggers and others who call themselves contributors to particular types of publications. It might not be in the interests of security that those people have access to such material. Can the Minister respond to those two points?
Earl Attlee (Con)
My Lords, I thank the Minister for tabling the amendment. It is hard to think of any reason other than journalism or academic research, but it is good that the legislation as it will be drafted allows for that possibility. As for my noble friend’s point about journalism, it has never been accurately defined. Other terrorism legislation refers to journalism, but the drafting of my noble friend’s amendment makes it quite clear that it has to be journalistic work.
Lord Kennedy of Southwark
We fully support government Amendment 6 in the name of the noble Baroness, Lady Williams of Trafford, and moved by the noble Earl, Lord Howe. As we have heard, it responds to concerns raised during consideration of the Bill in Committee in this House and the other place. It is a helpful amendment, as it puts in the Bill a specific provision making it clear that a person has a reasonable excuse for possession of certain material where it is for the purpose of carrying out journalistic or academic research.
Amendment 7 is an amendment to Amendment 6. I have considered it carefully and can see the point being made the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, but the amendment is unnecessary and would add nothing to the clause as amended by Amendment 6. As the noble Earl said, “but … not limited to” covers the other points made. As amended the clause is fine; I do not think that we need the other amendment. The noble Marquess, Lord Lothian, made some important points which I hope the Minister will respond to, but we support the government amendment.
Earl Howe
My Lords, I am grateful to all noble Lords who have spoken, especially for the supportive comments from the noble Baroness, Lady Jones, and my noble friend Lord Attlee, but also for the very helpful remarks from the noble Lord, Lord Kennedy. I shall endeavour to cover all questions that have been put.
The noble Baroness, Lady Hamwee, asked a drafting question. She asked where paragraph (a) will actually fall in the text. I can tell her that paragraph (a) will begin with the words after line 40 on page 2, so I hope that it will run in the broad way rather than the narrow way in which she hoped it would.
Baroness Hamwee
The last words of line 40 read,
“in which at the time”
and the next line starts, “of the person’s action”. As I said, I identified two places in line 40 where paragraph (a) might be inserted. It is a drafting point but also a point of substance, because where paragraph (a) starts actually affects the whole of the point. Can the Minister give a little more assistance?
Earl Attlee
My Lords, perhaps if my noble friend the Minister is not absolutely certain on this point we could return to it at Third Reading to clarify the drafting amendment.
Earl Howe
My Lords, I was not as precise as I should have been. The words after,
“(but are not limited to) those in which”,
will become paragraph (a). So it will read,
“(but are not limited to) those in which (a) at the time of the person’s action or possession, the person did not know”,
et cetera. Paragraph (b) will follow after line 44. I hope that that clarifies the point.
My noble friend Lord Lothian asked a series of very reasonable questions about the meaning of the words “journalist” and “academic”. The distinction between journalism that constitutes a reasonable excuse and that which does not, for the purpose of this offence, will inevitably be highly fact-specific. As several noble Lords commented in earlier debates on the Bill, it is just not possible to provide in advance an exhaustive definition of a journalist or of a legitimate journalist. This is something that we are clear needs to be determined by a jury in particular cases on the basis of all the evidence. We have made it clear that our amendment adds an indicative list of categories of reasonable excuse and does not provide either an exhaustive list or an absolute exemption. It is important to remember that juries will retain their existing discretion to decide whether a particular excuse is reasonable on a case-by-case basis. The same logic would apply to the meaning of the word “academic”. The category of person that my noble friend described might or might not be considered by a jury to be an academic: it would depend on the facts of the case. The jury might consider that there was still a reasonable excuse for a particular individual. I hope that that is helpful.
Baroness Hamwee
My Lords, I am grateful to the Minister for that explanation because it answers my point and deals with my amendment. I am sorry to have been tedious and to have consolidated my reputation for pedantry—the noble Lord, Lord Harris, says that is impossible—but I think it was a substantive point. I beg leave to withdraw the amendment.
Lord Rosser
“( ) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”
Lord Rosser
Clause 4 inserts, in new Section 58B of the Terrorism Act 2000:
“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.
We have been told by the Government that the wording in this new section does not mean exactly what it says and that the burden of proof that they had a reasonable excuse will not rest with the person entering or remaining in the designated area. However, the Government have so far resisted the idea that, if that is the case, it would be better that this new section actually said what it apparently means—which, I understand from the Government, is that the person concerned would have to provide only some evidence that they had a legitimate reason for being in the designated area and it would then be for the prosecution to prove beyond reasonable doubt that that was not the case for the defence to fail.
Our amendment intends to set that out as the position and puts in the Bill wording used in the Terrorism Act 2000, which the Government say is what would apply, rather than the wording on its own in new Section 58B, which I quoted earlier. The amendment would add to new Section 58B the following words:
“If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
The wording in our amendment clarifies what the proposed wording currently in the Bill actually means when it refers to the person charged having to prove that they had a reasonable excuse for entering or remaining in the designated area. I hope that the Government will feel able to accept the amendment—or, if they cannot, will agree to bring forward their own wording at Third Reading. Surely it is in everyone’s interests to make legislation as clear as possible to all in its meaning. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, the burden of proof should be on the prosecution and should be seen to be on the prosecution. Lawyers who know where to find Section 118 of the Terrorism Act 2000 may be untroubled by the point made by the noble Lord, Lord Rosser. However, the existence of that section is not widely known. Indeed, only last week I found myself in that great deliberative assembly, Twitter, correcting the damaging and widespread misapprehension, advanced in good faith, that the Terrorism Acts reverse the burden of proof. I support the idea behind the amendment, although—as I am sure the noble Lord, Lord Rosser, would accept—if it is to produce clarity, it would have to be applied a little more widely to a variety of existing offences under the Terrorism Act, including Sections 57 and 58.
Lord Paddick
My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.
Lord Judge
My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,
“the court or jury shall assume that”.
It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.
Lord Carlile of Berriew
My Lords, with great respect to my noble friend, and indeed to my noble and learned friend on my right, I wonder why one needs to say something twice in the same statute.
Earl Howe
My Lords, Amendment 10 returns us to an area on which we have previously had helpful and extensive debates: namely, the question of how much evidence is required to establish a reasonable excuse defence under Clause 4, on whom the burden of proof falls and how this is set out in the legislation. As the noble Lord, Lord Rosser, rightly said, these issues have previously caused some uncertainty as they require Clause 4 to be read in conjunction with Section 118 of the Terrorism Act 2000, which sets out how the burden of proof applies to a number of defences to criminal offences within the 2000 Act including, but not limited to, the new designated area offence. It may therefore be helpful if I remind your Lordships of how these provisions operate.
The approach taken in relation to proving a reasonable excuse defence under Clause 4, which inserts the designated area offence into the Terrorism Act 2000, is the exact same formulation that is used elsewhere in various defences to offences contained in the 2000 Act, including the defence to the Section 58 offence which is amended by Clause 3. Clause 4 refers to a defendant proving that they have “a reasonable excuse”. We must then turn to Section 118, which makes further provision on what is required to “prove” a defence in this context. The noble Lord, Lord Rosser, has previously raised a concern that the wording of the two provisions might be out of step, and that Clause 4 might place a greater burden on defendants to make out a reasonable excuse than is envisaged by Section 118. I have addressed this in previous debates and have written to him following our most recent debate in Committee. I hope that I have been able to reassure him that this is definitely not the case.
Section 118 provides that if a defendant,
“adduces evidence which is sufficient to raise an issue with respect to the matter”—
that is to say, the matter has to be proved under the wording of the defence—
“the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
This, together with relevant case law, has the effect that if a defendant puts forward sufficient evidence to reasonably support a suggestion that he or she has a reasonable excuse, the burden of proof shifts to the prosecution to disprove that defence, which it must do to the normal criminal standard of “beyond reasonable doubt”. If the prosecution fails to do so, the jury must assume that the defence is made out.
Amendment 10 would insert this wording from Section 118 into Clause 4. The noble Lord has suggested that this would make the operation of Clause 4 clearer and would put beyond doubt what is required of a defendant to establish a reasonable excuse defence. I have every sympathy with the noble Lord’s desire for clarity. This is not the most straightforward of the Bill’s provisions, requiring as it does two different provisions in the 2000 Act to be read in conjunction, but I can assure him that there was a good reason for drafting it in this way. It is very simply that, as the noble Lord, Lord Anderson, said, Section 118 makes the same provision in relation to eight other provisions in the 2000 Act which include similar defences. Each of those defences points back to the same single place—Section 118—rather than including eight repetitions of the same wording in eight different places. This is a standard drafting practice where a common principle governs the operation of multiple provisions. It is considered to be the best way of providing clarity and consistency, and of not unnecessarily adding to the length and complexity of legislation.
In practice, the noble Lord’s amendment would have little or no impact on the operation of the reasonable excuse defence as it would simply duplicate the wording of Section 118, which already has effect. However, I must respectfully say that I am unable to support the amendment. As I have set out, the formulation used in the Bill as drafted, and in the 2000 Act, reflects normal drafting practice, and I do not see that there is sufficient reason to depart from this in relation to Clause 4. The courts have successfully operated Section 118 for 18 years in respect of the eight existing offences in the 2000 Act to which it also applies without anyone complaining that its effect is unclear or uncertain. There is clear case law and a settled and well-understood position.
Lord Rosser
I am obviously disappointed by the Government’s response, although it would be wrong of me to suggest that I am entirely surprised by it, since they have defended the position stoutly ever since we started discussing it. I probably do the noble Earl a disservice, but it seems to me that the Government’s argument is that we have made this error eight times and now we are going to make it a ninth, because apparently it is too big a problem to rectify the previous eight.
I do not intend to push this to a vote, but I will conclude by saying once again that surely we need legislation to be clear not just to lawyers but to all. I think somebody who reads this will not put the interpretation on it that they have to turn to another piece of legislation to find out that what new Section 58B says is not meant but that there was another intention and that the burden of proof in reality rests with the prosecution. I shall not pursue the matter any further. I am just sorry that the Government have not been prepared to take the bull by the horns and rectify it on this occasion—even if it means rectifying it in relation to the other eight instances at the same time. I beg leave to withdraw the amendment.
“(3A) The cases in which a person has a reasonable excuse for the purposes of subsection (2) include (but are not limited to) those where—(a) the person enters, or remains in, a designated area involuntarily, or (b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person has a reasonable excuse for entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes also provide a reasonable excuse for doing so.(3D) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”
Earl Howe
My Lords, the government amendments in this group will make a number of changes to Clause 4. Clause 4 provides a power for the Secretary of State to designate an area outside the UK which he may exercise if it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict UK nationals and residents from entering or remaining in that area. It will be a criminal offence for a UK national or resident to enter or remain in a designated area without a reasonable excuse.
Much of the debate on Clause 4 has, of course, focused on that reasonable excuse defence, both on its application in various scenarios where a person might have a legitimate reason to enter or remain in a designated area, and on the certainty which will be provided to such a person that they will not subsequently be prosecuted.
The points of principle here and the legal position are very similar to those which we have already debated on the reasonable excuse defence in relation to Clause 3. I will therefore not detain your Lordships by repeating myself, save to say that the Government are equally clear that, under Clause 4, individuals with a legitimate reason to enter a designated area of the kind we have been discussing will have a reasonable excuse.
However, I undertook at the conclusion of Committee to reflect on the concerns that had been raised that the existing approach might not provide adequate certainty and assurance. We have also engaged with representatives of the charitable sector, who have made points similar to those made in this House. Following this reflection, we have concluded that we should bring forward amendments to provide further assurance that those with a legitimate reason to enter a designated area will have a reasonable excuse. I trust that this will be welcome news to your Lordships.
Amendment 11 therefore introduces an indicative list of cases which may give rise to a reasonable excuse. Similarly to that which we have introduced to Clause 3 through Amendment 6, which we have just debated, it is not an exhaustive list, and it will be open to defendants to advance other categories of reasonable excuse. It will ultimately be up to the jury to determine whether a particular excuse is reasonable, on the basis of all the evidence in that case.
This will provide significantly greater assurance to legitimate travellers, but it will not preclude those who travel to designated areas for terrorist purposes under cover of, for example, journalism or charitable work from being prosecuted. Defendants will also not be able to rely on a reasonable excuse defence if they travel for a legitimate purpose and then engage in other activity which is not legitimate while within the designated area.
The categories of reasonable excuse provided by the amendment are: where the person enters or remains in the designated area involuntarily because, for example, they are detained; to carry out work as a journalist; to provide humanitarian aid; to attend the funeral of a relative or to visit a terminally ill relative; to provide care to a relative who is unable to care for themselves without such assistance; to satisfy an obligation to appear before a court; or to work for a foreign Government, the UN or an agency of the UN. This indicative list of reasonable excuses adds to the existing automatic exception for those who are working for or on behalf of the Crown. Where this list refers to a relative, Amendment 16 defines this as a spouse or civil partner, sibling, ancestor or lineal descendant.
A further area on which greater assurance has been sought is reviews of designations. As drafted, the Bill requires the Secretary of State to keep under review whether the condition for designating an area continues to be met, and to revoke the designation if he considers that it is no longer met. The Government have been clear that this will be a meaningful and ongoing review. I reiterate the point that in the kind of exceptional scenario in which this power is likely to be used, the Government will invariably pay very close attention to the circumstances on the ground, and will keep their response across every aspect of the system under continuous review and subject to recalibration as necessary.
Several noble Lords tabled amendments for Committee which would have tightened this further by introducing either a requirement for annual reviews of designations, as proposed by the noble Lord, Lord Anderson, or a sunsetting provision so that regulations designating an area would cease to have effect after three years, as suggested by the noble Lord, Lord Rosser. This latter approach would mirror the equivalent Australian legislation. I indicated in those debates that I considered an annual review to be unnecessary to ensure rigorous and effective review of designations, and that this would not serve the public interest or be an effective use of resources. I have reflected further and, with all respect to the noble Lord, Lord Anderson, I remain of that opinion.
However, I also indicated that I could see merit in the suggestion of a three-year backstop sunset period, with the option to make new regulations designating the same area if that is appropriate. I undertook to consider this ahead of Report. Following that consideration, I find myself persuaded that this would be a sensible and helpful addition to the Bill, and Amendment 18 therefore introduces such a provision. As a result, regulations designating an area will automatically cease to have effect and will fall away after three years. The amendment makes it clear that this is without prejudice to further regulations being made designating the same or a similar area. Any new regulations would of course then be subject to approval by Parliament. This will provide a powerful extra safeguard to ensure that the designation of an area cannot be indefinite, and that this power will be used to manage risk only in exceptional circumstances. While regulations remain in force, they will also be subject to the existing requirement that they be kept under review and that they be revoked sooner than after three years if the condition for designating the area is no longer met.
Amendments 20 and 21 implement recommendations made by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in their report on the Bill. Amendment 20 requires the Secretary of State, when laying regulations before Parliament designating an area, to issue a statement setting out the reasons why he considers that the legal test for designation is met in relation to that area. The Government have always been clear that we will provide an explanation to Parliament of why we seek to designate any area under this power, and we are happy to place a requirement to do this in the Bill.
Amendment 21 makes any regulations revoking a designation subject to the negative resolution procedure. Under the Bill as drafted, regulations that purely revoke an existing designation would not be subject to any parliamentary approval and would simply come into force immediately upon being laid. The Government took that approach on the basis that lifting the designation of an area, and therefore also the operation of the criminal offence in relation to entering it, would have no adverse impact on any person. The committee wisely identified that lifting a designation could in fact have an impact on those for whose protection the area was designated—that is to say, the public. On that basis the committee recommended that such regulations should actually be subject to negative resolution in both Houses. The Government are persuaded of the committee’s view on this matter and are happy to implement its recommendation. I am grateful to your Lordships’ Delegated Powers and Regulatory Reform Committee for its scrutiny of the Bill and for its assistance in improving it in these two respects.
I am also most grateful to noble Lords, and to the noble and learned Lord, Lord Judge, for their contributions to the debates on this important but sensitive new power and for their assistance in identifying the sensible improvements that the Government are bringing forward today in response to those debates. I hope your Lordships will be happy to support these government amendments.
There are a number of other amendments in this group, including amendments to the government amendments. I will wait to hear what noble Lords have to say about Amendments 12, 13, 14, 17 and 19 before responding. For now, I beg to move Amendment 11.
Amendment 12 (to Amendment 11)
Baroness Hamwee
Baroness Hamwee
My Lords, we also have Amendments 13, 14 and 17 in this group as amendments to the government amendment. We welcome the indicative non-exclusive list that the Minister has put before your Lordships. At the last stage the noble and learned Lord, Lord Judge, made the point that we should not rely on guidance or some other executive action in this connection, and that must be right. However, we must also be confident in the list. The more examples are given, the less easy it may be to argue for additions which are not spelled out. I was going to refer to the array of lawyers opposite me, but their numbers have been reduced by half in the last few minutes. Nevertheless, I am sure they can tell me whether I am wrong to be worrying about the sui generis rule, because I am.
The Government’s amendment refers to,
“internationally recognised principles and standards”.
Will the Minister give an explanation or example of those? Alternatively, what might contravene that criterion—in other words, not meet the standard? Humanitarian aid is referred to. Peacebuilding was talked about in Committee. We are not confident that humanitarian work includes peacebuilding and would like an assurance or acceptance of our amendment on that. Humanitarian work probably covers development and cultural purposes, which were also referred to during the last stage. Will the Minister comment on that?
We have added “for connected purposes”, which is a little wider than “in connection with”, which is limited to the stated purposes—we would be adding a purpose. It is appropriate to mention concerns expressed before these amendments were tabled, not just about the “reasonable excuse” defence which the House has been debating. There are also concerns on the part of banks and other companies which provide services to organisations which provide aid, such as insurance—I am amazed that insurance might be available in some of these connections—and travel companies. Apparently they are concerned that the measure will exacerbate the diminishing of their appetite to support humanitarian activity, due to the increased legal ambiguity around travel to designated areas. They are also concerned about a possible chilling effect on humanitarian aid surrounding those areas. The list which the Government propose includes visiting a terminally ill relative. It is not always clear when an illness is terminal. In this context, it might be particularly difficult to get medical support for that proposition. We suggest adding “very seriously ill”, as a matter of common sense.
Amendment 14 was an excess of zeal on my part. I shall not be pursuing it, as I realise that the point is already there. On Amendment 17, the House has heard the assurances about the designations being kept under review. We welcome the sunset provision in Amendment 18 and support Amendment 19, which would shorten it. However, this does not mean that reporting to Parliament is not necessary. The noble Earl has just referred to a “meaningful and ongoing review”, but we must be aware that when a finite period is referred to there comes a temptation to address the point thoroughly only every three or two years, depending on that period. The proposal to report formally to Parliament is a matter of transparency and accountability. I hesitate to say so, but it might give the independent reviewer something to bite on. That amendment is certainly not a backstop.
The Earl of Sandwich (CB)
My Lords, I offer my support for Amendment 15. I will speak on behalf of humanitarian aid workers following the remarks made by the noble Lord, Lord Judd, and I do so because it seems to me profoundly wrong that aid workers should potentially come under suspicion and be bracketed with potential criminals simply because they are travelling to and from a sensitive area. Of course, I realise that the Government understand in principle they are not in that category, so they have put down their own amendment with an indicative list, which the JCHR acknowledges is a step forward. Nevertheless, the Bill still potentially subjects aid workers and journalists to every sort of interference, which can only mean that aid will inevitably be held up and that people living in distressed conditions will suffer more. If aid workers in government programmes, including those of Governments in the designated areas, are protected, why on earth should non-governmental organisations and their beneficiaries suffer? What is the logic of that?
This clause has to be amended. Imagine what would happen in a country like the DRC today if people monitoring the Ebola virus had to consider the prospect of being arrested for having dealings with the Mai Mai or the Interahamwe militia. The noble Lord, Lord Judd, and the noble Baroness, Lady Hamwee, have already mentioned peacebuilding, which often involves the Red Cross and the Churches. What would be the climate of suspicion surrounding not only them but the whole aid programme? The noble Lord, Lord Paddick, quite rightly mentioned the “deterrent effect”.
I speak with feeling, having worked with several aid agencies over the years, and knowing the conditions in which they already have to work. No wonder that 21 organisations are protesting. These are in many cases the front line of our aid programme, whether they work with government or not. I will repeat two sentences of what they said in a signed letter:
“Unless urgently amended, the bill … will make it impossible for civil society organisations to deliver much needed humanitarian, development and peacebuilding support to people desperately in need … it is vital that the government and peers amend the bill so that it exempts aid workers and others with a legitimate reason to travel to designated areas”.
Let us not forget the cost of this exercise. We do not of course know the parameters of the designated regions, but we know that, for obvious reasons, many aid workers tend to be in sensitive areas of the world, so the overlap between political sensitivity and humanitarian commitment will be vast.
The noble Earl mentioned the possibility of the terrorist who intends to assume the disguise of an aid worker and become a wolf in sheep’s clothing. Obviously, that is quite different; he or she must be stopped on the grounds laid down in the Bill, and will not ultimately pass the test of reasonable excuse. I realise the difficulty the Government are in here, having to act on behalf of society. But it is quite irresponsible to risk the professional lives of all aid workers leaving those areas, with all the consequences for the programmes concerned, as a means towards that end.
Earl Attlee
My Lords, I am grateful to the Minister for these amendments, and in particular for his response to my amendments moved in Committee on journalism. When we are trying to convince people like President Erdoğan of Turkey not to persecute his journalists, it would be a complete disaster if we accidentally arrested a legitimate journalist in the UK.
I have worked overseas on international aid—in theatres unlikely to have been designated—but I think the noble Earl, Lord Sandwich, has slightly misinterpreted the Minister’s amendment. New Clause 3B(a) excludes providing aid “of a humanitarian nature”, so his concerns are absolutely met by the Minister. I believe the Minister has the balance right, both in principle and in the drafting of his amendment.
Lord Judd
My Lords, I strongly support the amendment; indeed I welcome the moves the Government have already made. Looking back on my life outside this House, it is impossible to express strongly enough my respect for the courage and dedication of some of those working on the front line. We ought to be ensuring that they have all possible support, rather than being put through greater anxiety about their own futures. The point about de-risking by banks and other relevant authorities is, of course, very important. Development assistance is crucial and sometimes—if not more often than not—the most important development assistance is long term, because it builds human and institutional resources that will be essential for the future.
Alongside that, the point I made in my earlier intervention is crucial: peacebuilding is vital. Are we just going to have industries and charities whose activities are dependent on failure, or are we supporting charities, voluntary organisations and others who say we have to understand the causes of the problems that confront us and tackle those causes at root? That means sometimes dangerous, controversial work with a wide cross-section of people. I hope that the Minister will be able to respond positively to the amendment and underline in specific terms the Government’s commitment to the support and well-being of the bona fide, responsible organisations that engage in the crucial task of peacebuilding.
I said that I had a range of interests in the register, and I should specifically say that I have been an adviser to International Alert and subsequently a trustee. International Alert is respected by a great number of Peers across the House for the work it does. It is deeply concerned about the need to make explicitly clear that peacebuilding is high on our list of considerations.
Lord Hylton (CB)
My Lords, I am happy to follow my noble friend Lord Sandwich. I welcome the Government’s amendments but suggest that the additional amendments in this group are needed for the avoidance of doubt. The Bill may make it necessary for an accused person to prove his innocence, which is nearly always undesirable. I should add that I have in the past travelled to Iraq, Syria and Gaza, disregarding Foreign Office travel advice. However, in those days there were no designated areas—one could take one’s chance.
I support the amendments—in particular, Amendment 19, which calls for frequent review of areas—and I look forward to the Government’s reply.
Lord Anderson of Ipswich
My Lords, although, I hope, properly grateful for Amendment 11, I support Amendment 15. Also in this group, I support Amendment 12 on peacebuilding, and the Government’s Amendment 18 on the sunset period, subject to Amendment 19 in my name. I shall take them in that order.
Amendment 15 tracks the Government’s Amendment 11 with one important difference—the carving out of conduct rather than the provision of a reasonable excuse—in that it echoes the amendment that I tabled in Committee with the support of the noble and learned Lord, Lord Judge. I do not believe that Amendment 15 makes the job of the police or the CPS any more difficult. Where it is not clear whether the reason advanced for travel is true, there should be no more obstacle to a suspected person being questioned and, if necessary, prosecuted under this scheme than there is under the Government’s Amendment 11. However, the listed grounds are reasons to travel to dangerous areas, not excuses. The Australian law recognises this and so should ours. The only fault in Amendment 15, if I may say so, is that it makes no reference to peacebuilding, which brings me to Amendment 12, which I support and to which I would have put my name had I been alert enough to see it in time.
As the noble Lord, Lord Judd, and others have said, there are charitable groups based in this country with a remarkable track record in peacebuilding and conflict resolution, which might include talking to or negotiating with active terrorist groups in areas where conflict is never far away. I should like to share the conviction of the noble Baroness, Lady Hamwee, and the noble Earl, Lord Attlee, that their work can be described as humanitarian, but this should surely be put beyond doubt, as the noble Lord, Lord Hylton, said. Their efforts and even their successes are not always well publicised but they are no less useful and important for that.
I had the privilege of speaking for such groups for several years—notably the group Conciliation Resources—and helped them to initiate a dialogue with the Home Office, the purpose of which, perhaps partially achieved, was to allay some of their fears of contravening the existing anti-terrorism law. However, the new designated area offence could hit some of their most sensitive and valuable work if they are not exempted from its scope or at least, as a second best, brought expressly within the scope of reasonable excuse. That is why my amendment in Committee, now overtaken by Amendments 11 and 15, made express reference to peacebuilding.
It is hard enough for charitable trustees to manage the physical risks to their staff of this kind of work, and it would be wrong to add to those risks the possibility of being convicted or imprisoned in the UK for doing it. Surely no one engaged in such work would really be prosecuted for it, so why not acknowledge that in the law?
I turn to Amendments 18 and 19. Once an area has been designated, it will be a brave Secretary of State who gives priority to its dedesignation. It is important to acknowledge the freedom of travellers, including adventurous ones, to go to places that are still at least moderately dangerous, but one can imagine how aversion to risk might in practice be given priority.
For that reason, in Committee I tabled an amendment that would have provided for annual review. It was a little more elaborate than Amendment 17 but with the same aim in mind. Although that way of doing it did not find favour with the Government, I welcome the sunset provision in Amendment 18, as well as the Minister’s words regarding the rigour of the review that will take place under new Section 58C(4). My reservation, which I have expressed in Amendment 19, is that three years seems too long to wait for the sunset.
It is hard to believe that annual review would be unduly onerous, as the experience of Australia and Denmark has been that very few areas are designated and as one would hope that, if the Government were doing their job, the degree or risk attached to those areas at any given moment would be well known. However, Amendment 19 goes for the very moderate option, as I hope your Lordships will see it, of two years.
I am sure that the Minister will respond that the provision is modelled on the Australian criminal code, which provides at Section 119.3(4) for a three-year sunset. However, the Australian law has other protections that are not present in Clause 4: a ban on designating an entire country; an express duty on the Minister to revoke a designation if he ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity there; and provision for Australia’s Parliamentary Joint Committee on Intelligence and Security—the equivalent of the Intelligence and Security Committee of this Parliament—to conduct its own review of declarations.
Therefore, I invite the Minster, whether today or subsequently, to look kindly on what I venture to call an improvement to the welcome Amendment 18.
Lord Judge
My Lords, I support Amendment 19. I cannot think of anything I can say that would improve on what the noble Lord, Lord Anderson, has said, so I shall not say it. However, when the Government look at their own amendment and the very helpful way in which they have reconsidered this rather urgently introduced provision in the House of Commons, they should consider whether new subsections (1), (2) and (3) run in the right order. New Section 58B(1) sets out the offence; new subsection (3), or proposed new subsections (3A), (3B), (3C) and (3D) are not offences; and new subsection (2) sets out the defence. Logically, it might be better and easier—and it might deal with the sui generis point raised by the noble Baroness, Lady Hamwee—if the order ran new subsection (1), the current new subsection (3) and then new subsection (2).
Lord Rosser
I have two amendments in this group. One is Amendment 15 and I have added my name to Amendment 19 in the name of the noble Lord, Lord Anderson. As I am sure the noble Earl will remind me, if it is he who is to respond, in Committee we moved an amendment based on the Australian model that provided for a sunset clause after three years, so it would be wrong of me not to thank the Government for having taken heed of what we said.
If the Minister is wondering why I attached my name to the amendment of the noble Lord, Lord Anderson, reducing the three-year sunset period to two years, it was because we thought that his case for doing it every year, which he proposed in Committee, was quite powerful in relation to the quite exceptional powers that the Bill provides over travel for UK residents and citizens to designated countries. That power would rest with the Secretary of State. The noble Lord, Lord Anderson, has not come back with an amendment proposing a sunset period of one year but he has come back with a proposal to change the sunset provision to two years, and we have a lot of sympathy with that in the light of the arguments that he advanced in Committee in favour of one year.
I think that the noble Lord, Lord Anderson, ended up by saying that he hoped that the Government might reflect on his amendment if they did not feel able to agree to it, as well as reflecting on the frequency and reality of which Parliament should be required to give its approval if the Government wished to continue to exercise this power over the movement of UK citizens. I too hope that that is something that the Minister might feel able to reflect on further.
With regard to Amendment 15, to which a number of noble Lords have already made reference, the amended reasonable excuse defence, with its indicative list tabled by the Government, still does not really provide adequate protection either to those with a legitimate reason for being in a designated area or indeed, in some aspects, to some organisations that employ them. For example, an aid worker or news reporter can invoke the reasonable excuse defence only once they have been accused of or charged with an offence. The onus is then on the individual and organisation to provide evidence or proof to the authorities that they were in a designated area for a legitimate reason. Prior to being charged—if that is what happened—the individual could have been questioned by the police on their return from the designated area and they might conceivably have been placed under arrest. For a law-abiding citizen, that would potentially be an unnerving experience, and likewise for their employer or organisation, which could face a degree of reputational damage as a result.
It is correct that anyone returning from a country—for example, Syria—can already be questioned or investigated by police and asked for justification for their travel. However, at the moment, that person will not have committed an offence simply by having entered an area or country such as Syria. If the provisions of this Bill become law, the risk of investigation, and the perception of that risk faced by individuals and their employer, will be much higher. It is not clear either what will count as proof of a legitimate reason for being in a designated area. Would it be a letter on headed paper from an employer or more substantive evidence? Carrying such evidence in and out of a war zone could pose security risks for the individual and those in the conflict area. If the risks of going to a particular area are increased for UK nationals or residents, then their organisation, national or international, is less likely to want to send them. After all, those organisations have a duty of care towards their staff. Creating further potential threats and obstacles for UK nationals and residents to travel would put a greater onus on local staff or staff of other nationalities, and would add an extra provision to life-saving humanitarian support for those in a designated area and for work to address the root causes and drivers of conflict.
Further difficulties may arise as well. The legal position around entering designated areas, created by the new offence of simply being in such an area, may, as has already been said, further reduce the willingness of banks to provide financial services for activity, including humanitarian activity, in high-risk areas. That is a potential consequence that could also extend to the services provided by travel and insurance companies. If an organisation—one is talking here about primarily, but not solely, a humanitarian organisation—cannot get travel insurance for its employees or transfer funds into a designated area, it will be less able to deliver support in a safe and effective manner, even if it is prepared to take the risk of sending a UK national or resident to the designated area concerned, in the knowledge that just being in that area is an offence for which that UK national or resident could be charged.
The Government must surely be aware of the impact their intentions would have on travel to a designated area in the absence of clear exemptions from committing an offence simply by being in those areas for those on legitimate, and in some cases life-saving, business or activity. Amendment 15, in my name, minimises these potential difficulties and unintended consequences by stating that individuals undertaking the activities listed in the amendment, which are the same as the Government have set out in their amendment in respect of which a reasonable excuse defence can be argued, would not be committing an offence of being in a designated area without legitimate cause, and would not have to provide a defence after the fact.
As the noble Earl said, the Bill already contains an exemption for those working for or on behalf of the Crown. That would extend to the small number of NGO staff working on UK government contracts, but many more such staff will be working on projects supported by grants from other bilateral, multilateral or private donors, or by funds donated by the British public, who will not be covered by any exemption from the provisions of Clause 4.
As the noble Earl will know, our amendment goes down the road of the Australian model of providing exemptions. However, an alternative method operates in Denmark, providing for prior authorisation to be given for those with legitimate business to be in a designated area. There is obviously a need for a procedure that enables an application for an authorisation to be dealt with quickly under that alternative method, since clearly some of those with legitimate business in a designated area, such as humanitarian aid workers or news reporters, need to get out there at short notice. However, under this Bill, such a procedure would mean that those returning from a designated area without being able to show prior authorisation would potentially face investigation and action for an offence, as would those for whom there was a suspicion that they had not been to the designated area solely for the purpose claimed and for which they had been given prior authorisation.
The Government should surely accept that their proposals as they stand on designated areas, and the new offence of simply being there, risk having significant unintended consequences, which may result in individuals and organisations we would accept as having legitimate business in a designated area not going or being represented at all, to the detriment of potentially life-saving aid activity and of providing transparency over what is happening, as in the case of aid workers and news reporters respectively.
I hope that the Government will be prepared to at least reflect further on this issue prior to Third Reading or the matter being considered further in the Commons, and look at either exemptions from the new offence of being in a designated area as provided for in my amendment, or, if they prefer, at a system of prior authorisation for travelling to such a designated area, or a combination of both.
Lord Paddick
My Lords, very briefly, I completely agree with my noble friend Lady Hamwee, who has addressed all the amendments in this group other than Amendment 15. I have added my name to Amendment 15 and made clear my reasons for supporting it during our debate on the second group of amendments. I do not wish to add further to my comments.
Earl Howe
My Lords, the noble Baroness, Lady Hamwee, has argued for the expansion of the Government’s list of indicative reasonable excuses to include peacekeeping and visiting a very seriously ill relative. I understood her not to have spoken to her Amendment 14, which proposed that we include in Clause 4 a power to further add to the list of reasonable excuses by regulations—I hope I was right in understanding that.
The first point I make is to stress again that this is an indicative and not an exhaustive list. I am not suggesting that the amendments from the noble Baroness are without merit, but, in a phrase, we need to draw the line somewhere. I firmly believe that Amendment 11 draws it in the right place. In this regard, we have taken into account the Australian precedent. Trying to put more and more situations beyond doubt—the argument put forward by the noble Lord, Lord Hylton—is simply unnecessary in this context. As I have argued before, we are consciously not creating an exhaustive list of reasonable excuses; it would be quite wrong to try. Juries will be able to make up their own minds on the reasonableness of particular excuses in the light of the circumstances of the case.
I entirely accept the importance of peacebuilding activity, and I am sure noble Lords would agree with me that it is vital that such activity continues. However, as I have explained, the government amendment does not preclude a person advancing this or any other category of reasonable excuse. I am of the view that legitimate peacebuilding activity could very well be a reasonable excuse. However, I must say again that it will ultimately be up to the jury to determine whether a particular excuse is reasonable on the basis of all the evidence.
Much the same arguments apply to Amendment 13, which would add visiting a seriously ill relative to the list of reasonable excuses. I am not sure how fruitful it would be to get into a debate about the difference between being “seriously ill” and “terminally ill”. Again, the line has to be drawn somewhere. Given that the Foreign Office would inevitably advise against any travel to a designated area, it is right that we set the bar at a high level. But I say again that it would be open to any person to advance as a reasonable excuse the fact that he or she was visiting a seriously ill relative.
Amendment 17 seeks to place on the Home Secretary a duty to lay before Parliament an annual report on the outcome of the review of a designation. This amendment misunderstands the nature of the duty on the Home Secretary to keep a designation under review. The requirement does not imply a set piece review with a beginning and an end, culminating in a report which can then be published.
Rather, the ongoing duty to keep a designation under review will ensure that, as the situation on the ground changes, the Government can react and make a judgment, as and when required, as to whether to alter any designation to reflect a change in the threat. However, I reassure the noble Baroness that, should the Government need to amend a designation, that will require a new regulation to be made, which in turn, by virtue of Amendment 20, would require the Secretary of State to issue a statement setting out the reasons why he considers that the legal test for designation is met.
The noble Baroness referred to international humanitarian standards. As she said, there are various commonly recognised international humanitarian standards. The point to appreciate is that the government amendment provides flexibility and future-proofs against developments in this area. She may know, for example, that the UN Office for the Coordination of Humanitarian Affairs provides guidance on principles and standards relating to humanity, neutrality, impartiality and independence. I say to the noble Earl, Lord Sandwich, that the concerns he expressed are satisfactorily addressed by government Amendment 11 as well as by the explanations that I have already given for the provisions of Clause 4 in Committee.
Amendment 15 in the name of the noble Lord, Lord Rosser, is in many ways similar to government Amendment 11. There is, however, a key difference, as he carefully explained. This is not an indicative list of reasonable excuses, but an exhaustive list of exclusions from the offence. We have already debated the difference between these two approaches when we considered Amendment 3 in the name of the noble Lord, Lord Paddick, in an earlier group, but it may be helpful to remind ourselves of the issues in play.
I reiterate that under either approach a person returning to the UK from a designated area abroad would not have immunity from investigation and possible prosecution. The police would still need to investigate to determine whether, under one approach, an offence had been committed or, under the other approach, whether the person has a reasonable excuse such that the investigation can be discontinued. It is worth noting that the police have been extremely clear for some time—since well before this new power was introduced—that any person returning from Syria who has travelled there for any reason can expect to be investigated to establish what risk, if any, they may pose. That is simply common sense given the level of risk associated with such areas.
That would likely also be the approach in any future scenario analogous to the Syrian example in which an area might be designated under Clause 4, whether or not an area is in fact designated. While I appreciate that the intention of the noble Lord’s amendment is to provide greater comfort and assurance to legitimate travellers so that humanitarian aid workers, for example, would not have the prospect of police investigation hanging over them, that would not in fact be the result. The only circumstances in which it could be achieved would be if we were to go further still and provide for any person who travels to a designated area simply to declare that they did so for a specified legitimate purpose, thus unilaterally providing themselves with immunity from any investigation or prosecution. However, that would be wide open to abuse by those who travel for terrorist purposes and would render the new power in the offence entirely unusable.
That leads on to my second point. I have explained that the noble Lord’s amendment would make little difference from the perspective of a potential defendant, and I appreciate that that may beg the question why we should not then accept it. That is simply because the Government’s preferred approach in providing for a reasonable excuse defence fits better with the grain of the Terrorism Act 2000. That approach has been in place for 18 years in Section 58 of the Terrorism Act 2000, which Clause 3 of the Bill amends as well as other provisions in the 2000 Act. As I previously said on the noble Lord’s closely related suggestions for changes to the burden of proof for these offences, which we have already debated today, that approach is well understood by the police, prosecutors and the courts, and clear case law on it is provided by the then Appellate Committee of this House, no less. It has not resulted in judicial concerns, inappropriate prosecutions, upheld appeals or any credible complaints that it has been unfair or inappropriate in its operation. I therefore reiterate that we are not approaching these matters from a neutral starting position. Rather, if we were to adopt the noble Lord’s amendment, we would be choosing to depart from the settled, long-standing position in relation to the Terrorism Act 2000, and I am simply not persuaded that there is any need or good reason to do so.
Furthermore, I am concerned that in unsettling that existing position we could create more uncertainty for defendants and judges in relation to Clause 4, not less, and we could also call into question the currently settled approach that the courts take to Section 58 of the 2000 Act as well as other provisions for similar offences, creating instability and uncertainty in our ability to prosecute serious terrorists. Those strike me as quite undesirable outcomes and risks that we should not run.
The noble Lord, Lord Rosser, asked me what would count as proof that an aid worker was employed by a legitimate NGO. The police have been clear that they will investigate any person returning from Syria to establish what risk they may pose. That would likely be the case in relation to any area designated under Clause 4, including investigating whether an offence has been committed under Clause 4. It will be an operational decision for the police as to how they would conduct that investigation and what proof they would seek. It is not possible for me to set out those considerations in advance.
Finally, Amendment 19, in the name of the noble Lord, Lord Anderson, would provide for the sunsetting of any regulations after two years rather than three. He seeks to split the difference between the one year he advocated in Committee and the three years proposed by the noble Lord, Lord Rosser. Again, this comes down to judgment. There is clearly no absolute right or wrong in this case; it is just that, on balance, the Government consider that three years is the right timeframe. Again, I pray in aid the Australian criminal code and, as I have already indicated, if the situation changes after six months, a year or two years, the Government would inevitably want to review the regulations well before the three-year period was up. The Government agree with the amendment put forward by the noble Lord, Lord Rosser, in Committee that three years is the appropriate period and I hope that other noble Lords are similarly persuaded. I realise that he has shifted his position since Committee, but I hope that on reflection he will feel content to revert to his original view.
I invite the House to agree with the government amendments in this group and I hope that I have been able to persuade the noble Lord, Lord Rosser, not to move his Amendment 15. If he is minded to do so, I invite the House to reject it.
Lord Rosser
“(3A) A person does not commit an offence under this section of entering, or remaining in, a designated area where—(a) the person enters, or remains in, a designated area involuntarily, or(b) the person enters, or remains in, a designated area for or in connection with one or more of the purposes mentioned in subsection (3B).(3B) The purposes are—(a) providing aid of a humanitarian nature;(b) satisfying an obligation to appear before a court or other body exercising judicial power;(c) carrying out work for the government of a country other than the United Kingdom (including service in or with the country’s armed forces);(d) carrying out work for the United Nations or an agency of the United Nations;(e) carrying out work as a journalist;(f) attending the funeral of a relative or visiting a relative who is terminally ill;(g) providing care for a relative who is unable to care for themselves without such assistance.(3C) But a person does not commit an offence of entering or remaining in a designated area by virtue of subsection (3A)(b) only if—(a) the person enters or remains in the area exclusively for or in connection with one or more of the purposes mentioned in subsection (3B), or(b) in a case where the person enters or remains in the area for or in connection with any other purpose or purposes (in addition to one or more of the purposes mentioned in subsection (3B)), the other purpose or purposes provide a reasonable excuse for doing so under subsection (2).(3D) The Secretary of State may by regulations add a purpose to or remove a purpose from subsection (3B).(3E) Regulations under subsection (3D) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(3F) For the purposes of subsection (3B)—(a) the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid;(b) references to the carrying out of work do not include the carrying out of any act which constitutes an offence in a part of the United Kingdom or would do so if the act occurred in a part of the United Kingdom.”
Lord Rosser
I thank the Minister for his response, but obviously there is a difference of opinion. We feel that there should be certain situations in which an individual who goes to an area designated by the Secretary of State should not by that very act of going there commit an offence. They would commit an offence for which they would have to provide evidence of a reasonable excuse if charged on their return to this country. I think I heard him say that one of the Government’s arguments for their stance with their indicative list was that it fits better with the grain of the Terrorism Act 2000. Perhaps if I was a lawyer I would be moved by that argument, but I am not.
I think that this was a comment made earlier by the noble Lord, Lord Anderson of Ipswich, but if I am misrepresenting him I hope that he will correct me. He said basically that we should have reasons for travelling to designated areas which mean that you do not commit an offence, rather than excuses—that is what we have, reasonable excuses—under the Government’s proposal. I therefore wish to test the opinion of the House.
““relative” means spouse or civil partner, brother, sister, ancestor or lineal descendant;”
“(4A) Regulations under this section cease to have effect at the end of the period of 3 years beginning with the day on which they are made (unless they cease to have effect at an earlier time as a result of their revocation or by virtue of section 123(6ZA)(b)).(4B) Subsection (4A) does not prevent the making of new regulations to the same or similar effect.”
“(6ZAA) Regulations laid before Parliament under subsection (6ZA) designating an area outside the United Kingdom must be accompanied by a statement setting out the grounds on which the Secretary of State has determined that the condition for making the regulations referred to in section 58C(2) is met in relation to that area.”
“(6ZD) Regulations under section 58C that only revoke previous regulations under that section are subject to annulment in pursuance of a resolution of either House of Parliament.”
G20 Summit
(5 years, 4 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the G20 summit in Argentina. Before I do, I would like to put on record my thanks to President Macri for hosting such a successful summit. This was the first visit to Buenos Aires by a British Prime Minister and only the second visit to Argentina since 2001. It came at a time of strengthening relations between our two countries when we are seeking to work constructively with President Macri.
As we leave the European Union, I have always been clear that Britain will play a full and active role on the global stage as a bold and outward-facing trading nation. We will stand up for the rules-based international order, strive to resolve with others challenges and tensions in the global economy, work with old allies and new friends for the mutual benefit of all our citizens and remain steadfast in our determination to tackle the great challenges of our time.
At this summit, we showed that the international community is capable of working through its differences constructively, and the leading role the UK will continue to play in addressing shared global challenges. We agreed —along with the other G20 leaders—on the need for important reforms to the World Trade Organization to ensure it responds to changes in international trade. We pursued our objective of making sure that the global economy works for everyone and the benefits are felt by all. We called for greater action in the fight against modern slavery and tackling climate change. I held discussions with international partners on security and economic matters, including on the progress of our exit from the European Union and the good deal an orderly exit will be for the global economy.
Let me take each of these in turn. At this year’s summit, I came with the clear message that Britain is open for business and that we are looking forward to future trade agreements. Once we leave the EU, we can and will strike ambitious trade deals. For the first time in more than 40 years, we will have an independent trade policy, and we will continue to be a passionate advocate for the benefits that open economies and free markets can bring. We will forge new and ambitious economic partnerships and open up new markets for our goods and services in the fastest-growing economies around the world. During the summit, I held meetings with leaders who are keen to reach ambitious free trade agreements with us as soon as possible. This includes Argentina, with whom I discussed boosting bilateral trade and investment, and I announced the appointment of a new UK trade envoy. I also discussed future trade deals with Canada, Australia, Chile and Japan, with which we want to work quickly to establish a new economic partnership based on the EU-Japan Economic Partnership Agreement.
On the global rules that govern trade, we discussed the importance of ensuring an equal playing field and the need for the rules to keep pace with the changing nature of trade and technology. There is no doubt that the international trading system, to which the United Kingdom attaches such importance, is under significant strain. That is why I have repeatedly called for urgent and ambitious reform of the World Trade Organization; at this summit, I did so again. In a significant breakthrough, we agreed on the need for important reforms to boost the effectiveness of the WTO, with a commitment to review progress at next year’s G20 summit in Japan.
On the global economy, we recognised the progress made in the past 10 years, with this year seeing the strongest global growth since 2011; but risks to the global economy are re-emerging. In particular, debt in lower-income countries has reached an all-time high of 224% of global GDP, so I called on members to implement the G20 guidelines on sustainable finance that we agreed last year, which increase transparency and encourage co-operation. At this year’s summit, I continued to pursue our mission to make the global economy work for everyone and the need to take action in our own countries and collectively to ensure that the benefits of economic growth are felt by all.
Around the world, we are on the brink of a new era in technology which will transform lives and change the way we live. This has the potential to bring us huge benefits, but many are anxious about what this means for jobs. That is why in the UK, alongside creating the right environment for tech companies to flourish through our modern industrial strategy, we are investing in the education and skills needed so that people can make the most of the jobs and opportunities that will be created. We made strong commitments to improving women’s economic empowerment, and alongside this I called on G20 leaders to take practical action to ensure that by 2030 all girls, not just in our own countries but around the world, get 12 years of quality education.
To build fair economies and inclusive societies we must tackle injustice wherever we find it. Around the world, we must all do more to end the horrific practice of modern slavery, and protect vulnerable men, women and children from being abused and exploited in the name of profit. Two years ago I put modern slavery on the G20 agenda at my first summit and this year I was pleased to give my full support to the G20’s strategy to eradicate modern slavery from the world of work.
I announced that next year the Government will publish the steps we are taking to identify and prevent slavery in the UK Government’s supply chains in our own transparency statement. This is a huge challenge. Last financial year, the UK Government spent £47 billion on public procurement, demonstrating just how important this task is. I urged the other leaders around the G20 table to work with us to ensure that their supply chains are free from slavery as we work to bring an end to this appalling crime.
I made clear the UK’s determination to lead the way on the serious threat that climate change poses to our planet. We need a step change in preparing for temperature rises, to cut the cost and impact of climate-related disasters, and to secure food, water and jobs for the future. As a UN champion on climate resilience, the UK will continue to pursue this agenda at next year’s UN climate summit. Nineteen of us at the G20 reaffirmed our commitment to the Paris agreement, but it remains a disappointment that the United States continues to opt out. I also announced that the UK will be committing £100 million to the Renewable Energy Performance Platform, which will directly support the private sector in leveraging private finance to fund renewable energy projects in sub-Saharan Africa.
This summit also gave me the opportunity to discuss important matters directly with other leaders and raise concerns openly and frankly. In that context, I met Crown Prince Mohammad bin Salman; first, to stress the importance of a full, transparent and credible investigation into the terrible murder of Jamal Khashoggi and for those responsible to be held to account, a matter which I also discussed with President Erdoğan; and, secondly, to urge an end to the conflict in Yemen and relief for those suffering from starvation, and to press for progress at the upcoming talks in Stockholm. Our relationship with Saudi Arabia is important to this country, but that does not prevent us putting forward robust views on these matters of grave concern.
I also discussed the situation in Ukraine with a number of G20 leaders. The UK condemns Russian aggression in the Black Sea and calls for the release of the 24 Ukrainian service personnel detained and their three vessels.
At this year’s summit we reached important agreements, demonstrating the continued importance of the G20 and international co-operation. It also demonstrated the role that a global Britain will play on the world stage as we work with our friends and partners around the world to address shared challenges and bolster global prosperity. I commend this Statement to the House”.
Baroness Smith of Basildon (Lab)
My Lords, I thank the noble Baroness the Leader of the House for repeating today’s Statement. Aboard her flight to Buenos Aires, the Prime Minister told waiting reporters that she was off to sell UK trade to world leaders. It is hard to understand what exactly the Prime Minister means by this, considering that we have no idea what our trading status will be after March. The Government’s withdrawal agreement looks set be voted down, a third of the Prime Minister’s own trade envoys oppose her plans for future trading arrangements, and, with the Attorney-General refusing to publish his full legal advice on the backstop, it is fair to say that we are a long way off negotiating any kind of trade policy. Yet we are told that, from Canada to Japan, one by one the Prime Minister sat down with world leaders to set out future trade deals. I hope that the noble Baroness will say a little more about this and detail to the House exactly what the Prime Minister could have discussed in these bilaterals.
We are told that trade at least was not on the cards during the Prime Minister’s bilateral with Crown Prince Mohammad bin Salman. Did she have a frank discussion over the UK’s sale of arms for use in the brutal Yemeni civil war? The UK is not a spectator; as long as we are selling arms to be used in that war we are very much involved. The Prime Minister says in her Statement that one of the reasons for the meeting was,
“to urge an end to the conflict”.
Surely we can do better than that. Crucially, the Prime Minister needs to put an end to the flow of British arms for use in this civil war. It is now time for action. We have a moral obligation to help the people of Yemen. Ahead of the Stockholm talks in the coming days, the Government should do everything possible to bring about a permanent end to the barbaric bombardment of Hudaydah. As an urgent priority, she needs to fully support humanitarian relief to find a route to allow food and medicine to reach the 14 million starving Yemenis. Can the noble Baroness the Leader tell us whether any of these issues were raised by the Prime Minister in her bilateral meeting?
We welcome confirmation that the Prime Minister raised the murder of Jamal Khashoggi with the Crown Prince. During the summit, President Macron told the Crown Prince that international experts must be part of the investigation. Turkey called for a full UN-led investigation into the incident. We are told that the Prime Minister asked for transparency. Can the noble Baroness expand on this and clarify what the Prime Minister’s exact demands are for the Khashoggi investigation?
Prior to the summit, it was well briefed that the Prime Minister would use the trip to engage in a new security partnership as part of her preparations for the UK’s new satellite system that would rival Galileo. That raises several immediate concerns. What will be the cost of creating a new, separate system? Will it be as effective and will we have full access by 2026, as was the plan with Galileo? Despite all the pre-briefing, there is nothing in the Statement. Can the noble Baroness confirm that, given all the pre-briefing, it was discussed at the summit?
On climate change, the Prime Minister told the summit that the UK was determined,
“to lead the way on the serious threat that climate change poses to our planet”,
to quote from the Statement. That is a worthy aim, but it needs more than just words. For example, did the Prime Minister urge President Trump to reconsider his rejection of the Paris agreement in her informal discussions with him?
Aside from the bilateral meetings, after hours of negotiations it emerged on Saturday that the G20 had agreed a joint communiqué that reaffirmed the commitment to a rules-based international order, which I am sure all of us would welcome. However, we need just to scratch the surface of the declaration and we see that the actions of some of the signatories are at odds with the spirit of the agreement. The UK has a responsibility to support and to defend these values of multilateralism, and the Prime Minister must encourage our international partners to do the same.
Against the backdrop of the communiqué, the US and China agreed a trade war truce, which the White House has labelled “a wonderful humanitarian gesture”. However, apparently this “wonderful humanitarian gesture” includes support for the expansion of the death penalty in China for those importing the opiate drug fentanyl to the US. Meanwhile, in the face of Russia’s arrest of Ukrainian soldiers, Kiev has suggested that democratic elections could be suspended. Neither of these is consistent with the principles of a rules-based international order.
The Prime Minister must seek to use any influence the UK has to encourage all countries to genuinely and honestly abide by this agreement in both domestic and international policy. There has to be real value to such summits. For that to be the case, the communiqué cannot be just warm words to be discarded when they are inconvenient.
Lord Newby (LD)
My Lords, I too thank the Leader for repeating the Statement, but am rather disappointed that it contains an omission. We are told that all the leaders had a bit of downtime during their stay in Argentina, during which they demonstrated national character traits. Angela Merkel went to a steak house for a good meal; President Macron went to a bookshop for a meeting with writers and thinkers; and President Modi held a public yoga session in front of several thousand—no doubt somewhat surprised— Argentinian residents. Can the Leader tell us what the Prime Minister did to reflect our current national mood and character?
More seriously, the Statement contains a number of references to Brexit which are rather curious. First, it says that the Prime Minister held discussions on,
“the good deal an orderly exit will be for the global economy”.
How is that compatible with the Government’s own long-term economic analysis, published last week, which showed that even if the Government get free trade agreements with every single country with which they do not currently have one, there will be a reduction in GDP in the UK because there will be a reduction in trade? The inevitable corollary of that is that there will be a reduction in GDP in the rest of the world because there is a reduction in trade.
Secondly, the Prime Minister said:
“Once we leave the EU, we will strike ambitious trade deals”.
Given that the EU has rejected the Government’s proposal for a facilitated customs agreement, how can we strike trade deals on our own while keeping a frictionless border in Northern Ireland? The Prime Minister had specific discussions on trade with a number of Heads of State and Government, including that of Japan. In her conversations with the Japanese Prime Minister, did she discuss the commitment given to Nissan some two years ago guaranteeing that it would be no worse off under Brexit? If so, what assurances did she give, or could she give, to Japanese companies in the UK that they would not face additional barriers to trade, particularly those working in the services sector, not least the financial services sector, after Brexit?
Finally, the Prime Minister said that the UK was,
“creating the right environment for tech companies to flourish”,
after Brexit. Why then does the Prime Minister think that, last week, a letter was delivered to 10 Downing St signed by more than 2,300 tech entrepreneurs warning that, under the Government’s plans for Brexit, the industry would be hit by a drastic reduction in market access and difficulty in attracting new talent and investment from outside the UK?
The Prime Minister is living in a fantasy world increasingly at odds with reality. Fortunately, with next week’s votes, reality is about to intrude.
Baroness Evans of Bowes Park
I thank the noble Baroness and the noble Lord for their comments. Both of them asked about the conversations that the Prime Minister had on trade. In her bilateral with President Abe, both leaders reaffirmed our commitment to work quickly to establish a new economic partnership between Japan and the UK in the future based on the EU-Japan Economic Partnership Agreement. She met Prime Minister Morrison of Australia for the first time at the summit, and we are stepping up engagement with the Indo-Pacific, with new missions in Samoa and Tonga and an enhanced relationship with ASEAN. We also laid the foundations for an ambitious future UK-Australia free trade agreement. The Prime Minister also met President Piñera of Chile. They welcomed the constructive discussions to date on transitioning the current EU-Chile agreement and reaffirmed the commitment of both sides to conclude it swiftly. The Prime Minister also held talks with Prime Minister Trudeau. She therefore had a lot of constructive engagement with our global partners.
As the Statement made clear, for the first time in more than four decades, we will have an independent trade policy working through the WTO. As we have said on numerous occasions in the House, during the implementation period we would be able to negotiate, sign and ratify deals across the world.
The noble Baroness, Lady Smith, rightly asked about the situation in Yemen. I assure her that we are fully focused on bringing an end to hostilities there to address the worsening humanitarian crisis and build a lasting political solution. Diplomacy and negotiation remain the only path to ending the conflict. The indications are that, in the coming days, the sides will come together in Stockholm to hold meaningful talks. They open a window of opportunity to work with all parties towards a cessation of hostilities. The Prime Minister made that point forcefully to the Crown Prince in her bilateral with him. The noble Baroness will also know that the UK is the fifth largest donor of humanitarian assistance to Yemen this year. We have committed £570 million since the conflict began.
The noble Baroness asked also about the Prime Minister’s conversation with the Crown Prince about Jamal Khashoggi. She stressed again the importance of ensuring that those responsible for the murder are held to account and that Saudi Arabia takes action to build confidence that such an incident could not happen again. She made it clear that both the Turkish and Saudi investigations should be carried out thoroughly until responsibilities were clearly established, and that there should be proper accountability and due process for any crimes committed. She made it clear also that we expect Saudi Arabia to take measures to ensure that such violations of international and national laws do not happen again. We have also been clear that we will work with the EU and member states to consider how we can act together to take appropriate measures against those responsible once the investigations have concluded.
Our defence export procedures are among the strictest in the world. A licence will not be issued to Saudi Arabia or any other country if to do so would be inconsistent with any provision of the consolidated EU and national arms export licensing criteria. In July 2017, the High Court ruled that our sales to Saudi Arabia were compliant with those regulations.
The noble Baroness asked also about the Paris agreement. Certainly, the Prime Minister has had a number of conversations about it with President Trump and has urged him not to withdraw. We remain committed to the Paris agreement and were pleased that the other 19 members of the G20 all reinforced their strong commitment to it. The noble Baroness will know that the UK is decarbonising more quickly than any other G20 country and is honouring its climate finance commitments. At the G20, the Prime Minister announced £100 million for the renewable energy performance platform to support small-scale renewable energy projects in sub-Saharan Africa.
The noble Baroness rightly talked about some of threats faced by our rules-based system. We are clear that we are committed to upholding it. Despite difficulties, the G20 provides an opportunity collaboratively and openly to discuss the challenges. The system is being openly questioned, so we must redouble our efforts to defend it. That involves delivering UN reform, fairer burden-sharing in NATO and reform of the WTO—which was a part of the discussion at the G20. The World Bank’s governance must change to reflect the changing balance of the global economy. There need also to be reforms within the decision-making process of the Commonwealth. There is much to do, but it was a constructive summit and a communiqué was agreed by consensus.
Lord Howard of Lympne (Con)
My Lords, in the context of the reference in the Statement to the need for an orderly exit from the European Union, can my noble friend help me on the following point? We know that the UK Government are making preparations for the possibility—some might say the probability—of a no-deal Brexit. The European Union is making similar preparations. Are those preparations being co-ordinated in any way? If not, why not?
Baroness Evans of Bowes Park
We remain committed to the deal that we have negotiated with the EU and believe that it is the best deal, but my noble friend is absolutely right: both we and the EU are preparing for no deal. There have been many conversations, both bilaterally and with the EU, about preparations. We are taking forward our plans, as are the Europeans, but certainly conversations have been had.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister accept a warm welcome for the reference in the communiqué to supporting a rules-based international order, even if some of the signatories are somewhat unlikely supporters of that proposition? I welcome the Prime Minister’s efforts on that, with many of her colleagues. I have two questions. Reform of the World Trade Organization is obviously a sensible way to go, but the United States has made no secret of the fact that it wishes to dismantle the dispute settlement procedures of the World Trade Organization, so will the noble Baroness say that the Government will under no circumstances accept a weakening of the dispute settlement proceedings and will, indeed, think about ways of circumventing the US tactic of failing to appoint new members to the panel? On migration, there are two rather obscure passages in the communiqué —paragraphs 17 and 18. Will the noble Baroness say how Britain is going to be represented next week at Marrakesh at the meeting to sign up to the UN compact on migration?
Baroness Evans of Bowes Park
I thank the noble Lord. He is right that there was agreement that reform is needed to improve the WTO’s functioning. A step forward was that progress on this will be reviewed at the next G20 summit. The G20 has given the WTO a strong mandate for reform and we now want to see everyone working together. I can certainly assure him that our priorities for WTO reform include ensuring the continued effectiveness of the dispute settlement mechanism, including the role of the appellate board. We want to enhance transparency in the system to improve trust and to enhance the rules by ensuring clear disciplines on distortive subsidies and state-owned enterprises. We will be taking these forward strongly. He asked about migration. I can say that we will indeed be at the upcoming intergovernmental launch of the global compact. We support this compact, both in terms of international co-operation and as a framework to help us deliver our commitments under the sustainable development goals.
Lord Soley (Lab)
My Lords, in view of the rather chaotic state of the Government, this might seem a slightly premature question, but the Statement refers to various attempts to make deals with other countries on trade. There are some interesting references to how that might be done. Given that we are going to be a rule taker from the EU for quite some time—some of those rules are very good: data protection rules, for example, are of a very high standard—is it our intention to negotiate trade deals with other non-EU countries using those rules, or are we going to have different rules for every country we negotiate a deal with?
Baroness Evans of Bowes Park
Obviously, we will have discussions with different countries and work out trade deals that work best for both parties, but we have been very clear that we will not be lowering our standards in a whole array of areas, because we have been world leaders in setting them and we want to remain so.
Lord Howell of Guildford (Con)
Does my noble friend agree that this summit and the Commons Statement are remarkably forward looking—although one would not guess it from some of the curmudgeonly responses we have heard? Does it not mention both future trade deals under an independent trade policy, fundamental changes in the nature of trade, which do not seem to have reached a number of people talking about the subject, new areas of technology, women’s economic empowerment and, as we have already mentioned, the benefit of orderly exit from the EU? Should not excitable Brexiteers, and indeed the opposition parties, reflect a little on all that is really happening and important in the world before they try to destroy the Prime Minister’s perfectly sensible compromise?
Baroness Evans of Bowes Park
I thank my noble friend. As I mentioned in my answer to the noble Baroness, a communiqué was adopted by consensus at this G20, which showed the constructive nature of the meeting. Of course, the G20 is vital to international economic co-operation. It brings together countries that collectively constitute 85% of gross world product and two-thirds of the world’s population, so it is essential that we continue to work collaboratively together to tackle some of the global issues that we all face.
Baroness Goudie (Lab)
My Lords, I welcome the Statement, most particularly on modern slavery. May I ask that this issue be placed on the agenda of all meetings of the Prime Minister and Ministers when they talk to other countries about trade agreements? It is vital because, although we like to think that modern slavery is ceasing, it is not: it is actually on the rise, particularly in America itself. Perhaps pressure could be put on the American Government as well.
Secondly, I welcome the Statement on women’s empowerment. As we know, more and more women are going to be in difficulties with climate change, because it is women who will be most affected by climate change, in terms of their work: those who work in agriculture will have to walk much further to get water and those who have certain jobs will have to move because of climate change. Women and children will be most affected, so we need further education money, some of which should be used for education in whatever place they have to move to. It should be remembered that people do not leave where they live because they want to but because they have to, so they must be respected as refugees.
Baroness Evans of Bowes Park
I thank the noble Baroness for her comments. I am sure she will recognise that two of the issues she raised are very close to the Prime Minister’s heart and that she has been a leader internationally in these areas. On modern slavery, the call to action has now been endorsed by more than 80 countries, including 13 of the G20, and we will continue to push that forward. We were very pleased with the G20 strategy as a positive step to tackling modern slavery and reducing exploitation. Indeed, it set out a number of commitments, particularly around global supply chains, where modern slavery unfortunately remains rife. The noble Baroness may well also know that Australia, for instance, is introducing legislation based on our Modern Slavery Act; so we are indeed leading the world and we will continue to push for this. As she rightly said, we will focus on empowering women and on gender equality: that remains a priority for DfID.
Lord Bridges of Headley (Con)
My Lords, I very much welcome the Statement and in particular the focus on future trade arrangements. However, before we get carried away with the future, will my noble friend take a moment to update the House on the progress that the Government have made on grand- fathering over existing EU/non-EU trade agreements? It is imperative that this is done before we leave. Furthermore, how are we doing with grandfathering over the 750—at the last count—trade-related agreements with 168 countries that are also important to keep trade flowing?
Baroness Evans of Bowes Park
I do not believe that that kind of detail was discussed at the G20, but I am very happy to investigate further and write to my noble friend.
Lord Harris of Haringey (Lab)
My Lords, I am not sure that the Leader of the House answered my noble friend Lady Smith’s point about a replacement for the Galileo system, which was highly trialled as being one of the subjects under discussion. Given that, as I understand it, to have a proper global positioning system you have to have in the air around 24 satellites, how quickly is this going to happen and what is going to be the cost to the United Kingdom? What progress was made in discussing this with other nations?
Baroness Evans of Bowes Park
As I said in a couple of previous EU Statements, we are developing our own system. Galileo was apparently not discussed in the G20 plenary sessions.
Lord Berkeley (Lab)
My Lords, I think the noble Baroness said that we were giving £570 million of aid to Yemen, which is obviously wonderful—but of course we are also supplying bombs that have caused the damage in the first place. There is very strong evidence that some of the arms that we export go straight to Yemen and cause the trouble that we are now trying to put right. What really happened at the discussion—the cosy fireside chat—with the Crown Prince about how not to murder people in too public a way and how to cut the arms down? I think that most other countries that were there were probably trying to avoid talking to the Crown Prince because of what has happened there.
Baroness Evans of Bowes Park
I think we need to engage with people in order to change their opinion and to put our ideas over forcefully. I do not think that avoiding difficult discussions is a particularly good way forward. As I said, the Prime Minister raised the issue of Yemen with the Crown Prince. There is a window of opportunity now, through the talks that we hope will start in the next few days in Stockholm, where we can bring the parties together. We want them to work in good faith in order to cease hostilities. As I said, we have committed £570 million since the conflict began in 2015. We are the fifth-largest donor of humanitarian assistance and we are working with our international partners to try to bring this conflict to an end—but I think that robust conversations are needed in order to make sure that these points are forcefully put across.
Lord Marlesford (Con)
My Lords, although we can indeed strike new trade deals when we leave the EU on 31 March, is not the bitter truth that they remain no-deals until they can be implemented, and that they will not be able to be implemented until the implementation period ends and we have not joined the backstop?
Baroness Evans of Bowes Park
As I have said, during the implementation period we will be able to negotiate, sign and ratify trade deals, and we will be able to bring these into effect after the implementation period. If the backstop were ever to come into effect—which of course no one on either side wants—we would be able to enact those aspects of trade agreements that do not affect the functioning of the backstop, such as services, investment, financial services and digital.
Brexit: Legal Position of Withdrawal Agreement
(5 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable and learned friend the Attorney-General. The Statement is as follows:
“Mr Speaker, with your leave, I wish to make a Statement to the House. I should make clear the context in which I consider that I am to do so. My Statement today is intended to inform the debate that is shortly to commence on the Motion to approve the withdrawal agreement, and the political declaration on the future relationship, concluded with the European Union by my right honourable friend the Prime Minister.
It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration by the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government.
Therefore, my Statement today is complemented by a detailed legal commentary, prepared for the purpose of the debate and published this morning, which analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them. There is, of course, no want of other sources of helpful commentary available to the House.
In making this Statement in these unusual circumstances, and in answering any questions that honourable Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially and to place such legal expertise as I have at its disposal. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe it can pass under any misapprehension whatever as to the legal matters on which that judgment should be based.
It is important to recall that the matters of law affecting the withdrawal agreement can only inform the essentially political decision that each of us must make. This is not a question of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed.
In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney-General—certainly not this one—can instantly possess the answers to all the pertinent questions that the skill and ingenuity of honourable Members may devise. However, I am aware that there are certain parts of the agreement whose meaning attracts the close and keen interest of the House, and it is to some of these that I now turn.
The first is the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020, unless, pursuant to Article 132 of the agreement, both the United Kingdom and the EU agree to a single extension for a fixed time of up to one or two years.
By Article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast—or Good Friday—agreement. The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom, and the associated amendment to the Irish constitution to remove the Republic of Ireland’s previous territorial claim, remain in place.
Once in force, by Article 2(1) of the protocol, the parties would be obliged in good faith to,
“use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol”.
There is a separate but closely related duty on the parties under Article 184 of the agreement to negotiate expeditiously and use their best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by Article 1(4), the protocol is expressly agreed not to be intended to establish a permanent relationship but to be temporary. That language reflects the fact that Article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.
If either party did not comply with its obligations of good faith, after the implementation period it would be open to them to bring a complaint, under the dispute settlement provisions set out in Articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of the obligation.
If the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement, which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions. There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down. How likely that is to happen is a political question to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.
Under the protocol, the United Kingdom would form with the European Union a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas, or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the Union Customs Code.
These rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union. By these means, the need for any hard border would be avoided and goods originating in Northern Ireland would be entitled to free circulation throughout the EU single market. In all other aspects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where these aspects were devolved. By Article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor, whether situated in the Republic of Ireland or elsewhere in the single market, would not.
I turn now to the role of Union law and the Court of Justice of the European Union under the withdrawal agreement and within the dispute settlement provisions to which I have referred. It is important to place these provisions in the context of the objectives of the agreement: the orderly exit of the United Kingdom from the EU for our citizens and businesses. To this end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects where it is necessary or desirable for legal certainty to do so.
Although we will legally leave the EU and cease to be a member state on March 29 2019, Part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming. During that implementation period, so as to give the time, predictability and continuity that are needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before. But on the conclusion of this period, on 31 December 2020, that will come to an end.
Thereafter, Union law and the European Court of Justice will possess a relevance in the UK only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states, and of EU citizens in the United Kingdom, are created and defined by Union law. If they are to be preserved in equal measure, and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of these particular groups of people must continue to be defined by reference to that law. These rights are provided for in Part Two.
Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the UK will look to the United Kingdom’s independent monitoring authority, set up under Article 159, and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the Court of Justice of the European Union where the determination of such a question is necessary to resolve a dispute. Instead, pursuant to Article 158, for a fixed period of eight years only the UK courts may refer to the Court of Justice of the European Union a question of interpretation of Part Two of the agreement in the interests of achieving consistency in the enforcement of the rights the citizens of each enjoy, and while the new system is established. After that time our courts will, pursuant to Article 4.5, continue to interpret concepts and provisions of Union law, in the areas in which the agreement applies it, as they always have, and to have due regard to relevant post-implementation case law of the Court of Justice of the European Union where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.
Part Three deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period and to which Union law and the role of the institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court of Justice of the European Union an alleged breach of an obligation incurred prior to the end of the implementation period.
Part Five deals with our agreed financial obligations. It provides under Article 160 for Union law and the jurisdiction of the Court of Justice of the European Union to apply beyond the implementation period only for the time and purpose of closing out the United Kingdom’s financial obligations and entitlements incurred under Union law, again prior to the end of that period.
All of these are inherently time-limited functions and, once they are at an end, the Court of Justice of the European Union will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom.
A dispute between the EU and the United Kingdom about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel, in which the Court of Justice of the European Union has no automatic role. But if the panel needs to, and a question of interpretation of Union law is relevant to the dispute, it can ask the Court of Justice of the European Union to resolve that question only. It is then for the panel to apply that interpretation to the facts of the dispute and thus decide how the dispute should be resolved.
The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. I commend this Statement to the House”.
Baroness Chakrabarti (Lab)
My Lords, I am of course grateful to the Minister for repeating that Statement and for advance sight of it and the position paper published today. However, all Members of this House and, even more importantly, all Members of the other place are at a major disadvantage when asking questions because they have not read the legal advice upon which the Statement is based. It is totally unacceptable that we are in this position when aspects of the Attorney-General’s advice have been selectively leaked to the press over the weekend. Perhaps the noble and learned Lord can confirm that in the Attorney-General’s letter to Cabinet Ministers last month, as has been reported, he declared in respect of the backstop arrangement:
“The protocol would endure indefinitely”,
if trade talks broke down.
On 13 November in the other place, my colleagues the shadow Brexit Secretary and the shadow Solicitor-General were both crystal clear that what was sought was the final and full advice provided by the Attorney-General to Cabinet on any completed withdrawal agreement, made available to all Members of Parliament in good time for the vote on the deal. Offers short of that made by the Government, including the Attorney-General’s Statement today, were roundly rejected and the House of Commons passed the Motion unanimously. The Government could have voted against it and did not.
The reality must be that the Government do not want MPs to see the advice for fear of the political consequences. There is no point in trying to hide behind the law officers’ convention; the Ministerial Code and Erskine May are very clear that Ministers have a discretion, as part of that convention, to make advice available in exceptional circumstances. Surely few circumstances could be more exceptional than these. The economic, political and constitutional integrity of our country is at stake and the House of Commons is tasked with authorising the deal.
Paragraph 82 of today’s position paper confirms that there is no unilateral exit mechanism from the backstop for the United Kingdom—I stress, no unilateral exit mechanism. Perhaps the Minister could point me to a precedent for such a locked door with only one party as keyholder, which would not be us. Can he point to such a precedent in another treaty of recent times, or at all? The Government’s argument that the backstop will be only temporary is a political one, and politics changes. It is not the same as a firm, legal position. But articles 1.4 and 2.1 of the backstop protocol are clear that its provisions,
“shall apply unless … they are superseded, in whole or in part, by a subsequent agreement”.
Put simply, this means that parts of the backstop could become permanent even in the event that a trade deal were agreed. Can the Minister tell us of his view as to the parts of the backstop arrangement in this protocol that he considers most likely to become permanent?
There is then the impact on the Good Friday agreement. Page 305 of the withdrawal agreement refers to the need for this protocol to be implemented so as to,
“maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.
Can the Minister confirm what his view is about, first, new arrangements that he believes would be in accordance with the 1998 agreement and, secondly, which new arrangements he believes would not be in accordance with it?
It is of course for the other place to rule as to whether there has been an arguable case for contempt in what we on these Benches believe to be a failure to comply with the Commons Motion of 13 November. But for the sake of our economy, our jobs and our futures, all possible information should be made available to those asked to vote on this deal. The Government should do the right thing and make the advice available. With so much at stake for all our people and with eight days now before the vote on the deal, both Houses and the country deserve better from this Government.
Lord Thomas of Gresford (LD)
My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,
“assurances that we cannot be kept permanently in the backstop”.
That is not the view of the Attorney-General as set out in this Statement. He says:
“There is … no unilateral right for either party to terminate”,
the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.
The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.
Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?
Lord Keen of Elie
My Lords, I am obliged to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Thomas of Gresford, for their observations. I shall begin by saying clearly that I am not going to comment upon leaks to the media that may or may not have been made and may or may not be accurate, and I am not going to comment upon any correspondence that the Attorney-General may or may not have had with members of the Cabinet. Like the noble Baroness, Lady Chakrabarti, I observe that the issue of contempt is one for the Speaker and Members of the other place, and I make no further observation on that point.
The steps taken by the Attorney-General and the Government in respect of this matter are consistent with and correspond to the undertakings that were given in the other place by my right honourable friend the Chancellor of the Duchy of Lancaster.
A great deal has been said about the Northern Ireland protocol and the backstop. I begin by observing that it is the intention of the Government that the backstop should never be required and that during the implementation period we will engage in negotiation for an agreement that will mean that the backstop itself is not required. But of course there remains the possibility that it will be required; albeit it is one of two alternatives, because the alternative is to extend the transition or implementation period.
Let us look at the backstop itself. The noble Lord is quite right to say that, on the face of it, there is no unilateral right to withdraw from the backstop. That is quite clear in the terms of the protocol to the withdrawal agreement. But that is not the end of the story by any means. There have been various suggestions that somehow the United Kingdom, including Northern Ireland, will be locked into the backstop indefinitely, for ever. The noble Baroness, Lady Chakrabarti, talked about the single keyholder being the European Union, which at its whim will simply decide to leave the door locked and walk away with us in the backstop for ever and a day. That is simply unsound as an analysis of the legal position.
Under the terms of the Northern Ireland protocol, and, in particular, Article 2, there is an express obligation on the parties to use their best endeavours to reach an agreement that will not require the maintenance of the backstop. The term “best endeavours” is well worn in both domestic and international law and imposes a strong obligation upon the parties to conduct themselves in such a way that they can realistically and reasonably achieve an alternative settlement. If that obligation is not obtempered or met by one or other of the parties simply because it wants to leave the backstop in place indefinitely, there is a dispute resolution mechanism. It is not just about acting in good faith or about whether or not the backstop is necessary; it is whether or not the backstop continues to be necessary because one or other party has not used its best endeavours to adopt or agree an alternative arrangement. That would be subject to arbitration in terms of the withdrawal agreement.
Pursuant to Article 178 of the withdrawal agreement, if there was a failure on the part of a party to obtemper the ruling of the arbitration panel, which can be arrived at by a majority, there would be the right on a temporary basis to suspend implementation of a part of the agreement that was being held in place simply because of a breach of that obligation of good faith. But it goes further than that. In the event that there was a persistent failure on the part of, for example, the EU to obtemper its obligation of best endeavours and to adopt what was plainly a suitable alternative arrangement for the Northern Ireland protocol, one would have regard to Article 60 of the Vienna Convention on the Law of Treaties, which provides that a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. You then look at the definition of a material breach.
So this is not a case of being locked in with the EU holding the key. It has clear, express and unambiguous legal obligations to obtemper in the context of the Northern Ireland protocol, and if it fails to do so then there are remedies available. I reiterate that it is not a case of one or other party having the unilateral right simply to walk away from the protocol. That would not be appropriate in any form of international agreement. There is a mechanism whereby the agreement cannot be abused by either party and whereby if it is abused, there can be a resolution involving termination or suspension of a particular provision.
Candidly, I do not believe that two bodies such as the United Kingdom and the European Union are going to find themselves in a situation in which, over a period of time, one or other is not going to act in good faith in the field of its international obligations and is not going to discharge its obligations to use its best endeavours to arrive at an alternative agreement.
I hope that that goes some way to meeting the points raised by the noble Baroness, Lady Chakrabarti, and the noble Lord, but I emphasise that, ultimately, I am seeking to address the legal issues that arise in the context of the withdrawal agreement and, like the Attorney-General, I am perfectly prepared to answer any question from this House on the law—albeit they may be better informed by other and better lawyers inside and outside this House. I have no difficulty in responding, in so far as I can, to legal issues raised with regard to the withdrawal agreement. The Attorney-General took exactly the same position in the House of Commons. He recognised his duty not only in government but to the House to give such legal assistance as he could to the House to resolve any issues that may arise in this context. That is where we stand.
I just add this. After 45 years, clearly there are issues to be worked out between the parties, and the withdrawal agreement will allow for the necessary time and legal means for that process to unfold in an orderly, peaceful and sensible way. I reiterate that I am at the disposal of the House to answer questions of law, although they might be better answered by other Members of the House. Thank you.
Lord Morris of Aberavon
My Lords, I speak as a former Attorney-General. I adhere to the convention that it is not in the public interest to disclose the fact or the content of the law officers’ advice. However, there have been exceptions, such as the debate on the Maastricht treaty and the exceptional circumstances of the Chilcot inquiry. We are grateful for the 43-page document setting out the legal position, but I ask specifically whether, in the public interest, without going into detail, the Attorney-General has reserved disclosure on any matters that he has advised on. Secondly, will the Minister confirm that there is nothing in the document incompatible with the advice that the Attorney-General has given to Her Majesty’s Government?
Lord Keen of Elie
My Lords, I fear that to answer the first question would be to breach the relevant law officer convention, but with regard to the second, let me be clear: there is no inconsistency between any point made in the legal commentary and anything that might or might not have been said in government.
Lord King of Bridgwater (Con)
My Lords, does my noble friend agree that there is a very good reason for the convention that advice from the Attorney-General can be kept confidential to the Government? Nobody who voted on that proposal for a contempt Motion has the slightest idea whether some of that advice might be advantageous to the people against whom—or with whom—we are negotiating. I do not know how many noble Lords have listened in the past two hours to the extraordinary exposition by the Attorney-General—I think, quite without precedent—in which he undertook to answer any question from anybody in the House, seeing himself as responsible not merely to the Government but to Parliament, to the Commons, in his particular position. He discharged it effectively, and nobody who voted in the original vote that the papers ought to be published had the slightest idea that that was how the Attorney-General would approach his responsibilities.
Lord Keen of Elie
I thank my noble friend for his observations and entirely concur. I emphasise a point he touched on: we are engaged in continuing negotiations with the European Union to determine our future relationship. It would not be appropriate for us to disclose matters that would impact on the conduct of the negotiations, any more than we might expect the European Union to disclose to us the confidential legal advice that it may or may not have received in conducting those negotiations.
Lord Butler of Brockwell (CB)
My Lords, in the giving of advice in any letter or papers that the Attorney-General submits to the Cabinet, does not good government require complete candour not only on the strengths but on the vulnerabilities of the Government’s position? It would be impossible for the Attorney-General to write with such candour if he were aware that his advice would be published.
Lord Keen of Elie
I am obliged to the noble Lord, who draws on a great deal of experience where these matters are concerned. I entirely agree with his observation: it would render the law officers’ position almost impossible when advising government fully, candidly and without reservation, if it was felt that that advice was then to be put into the public domain—let alone put into the public domain when we were carrying on relevant negotiations such as those we are carrying on with the European Union.
Lord Campbell of Pittenweem (LD)
I regret to find myself in disagreement with the noble Lord, Lord Butler. I come back to the question of convention. No one can be in any doubt of the significance of the events that we are living through at the moment. Casting back in my memory, the only similar occasion I can think of is the decision to take military action against Saddam Hussein. On the eve of the debate in the House of Commons the noble and learned Lord, Lord Goldsmith, who I see in his place, answered a Written Question from—if my memory serves me right—the noble Baroness, Lady Ramsay of Cartvale, setting out the legal basis and justification for military action. Surely when the circumstances demand it, the convention can be dispensed with.
Lord Keen of Elie
With respect to the noble Lord, the circumstances in which the totality of the advice of the noble and learned Lord, Lord Goldsmith, came out were rather more complex than that, but let us address the immediate issue. What he was considering in that context was the lawfulness or unlawfulness of the action contemplated by the Government. That is not the position that pertains here.
Baroness Bryan of Partick (Lab)
My Lords, in 2012 in Scotland we faced a huge decision—perhaps not on the scale that we face now—but the then First Minister claimed that he had received legal advice from the Lord Advocate on the question of an independent Scotland’s relationship with the EU. He used the Ministerial Code to refuse to give details of that legal advice. Ruth Davidson, leader of the Conservative Party in Holyrood, said of this excuse that the,
“people of Scotland needed the truth”.
Does the Minister agree that a similar statement could be made on our behalf here today—that we should understand the nature of the advice provided?
Lord Keen of Elie
With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.
Lord Mackay of Clashfern (Con)
My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.
In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.
The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.
Lord Mackay of Clashfern
In my view, the fact that the House of Commons is entitled to get any advice from the Attorney-General that it wishes is the answer to this question.
Lord Keen of Elie
My Lords, I am obliged to my noble and learned friend, and I entirely concur with his observations. As I sought to indicate earlier, as a law officer I am willing to take questions on matters of law that the House deems it appropriate to render to me, albeit I understand and appreciate that they may have better sources of legal advice than me. Some of your Lordships who are aware of the proceedings in the other place will know that the Attorney-General made a clear and unambiguous undertaking to Members of that House to fully, properly and clearly inform them on legal questions that they pose with regard to the withdrawal agreement, and he would do so with fidelity.
Lord Kerr of Kinlochard (CB)
My Lords, may I take the Minister back to his answer to the noble Lord, Lord Thomas of Gresford, who alluded to the statement in paragraph 158 of the explanation document published on 14 November? The Minister’s answer built quite a lot on “best endeavours”, which in diplomatic parlance is an oxymoron. The Attorney-General seems to me to have thrown a lot of very honest and clear light—in the memorandum, in his Statement and in what he said to the House after his Statement—on what is to me a desperately humiliating proposal.
If we were in the backstop, we would be observing the common external tariff and common commercial policy of the EU, policies in which we would have no say. The backstop makes clear that we would be informed about any changes in the tariff. We would be informed—not even consulted—about any changes in our external tariff. The potential longevity of the backstop is therefore quite an important issue. I thought the Attorney-General was very honest when he said it was a calculated gamble and he did not believe that we would be likely to be trapped in it for ever. In other words, he accepted the possibility that we might be trapped in it, wholly or in part, for ever. I myself would not wish to run that risk. The French have a saying, “Nothing lasts longer than the provisional”. Would the Minister like to try to give a more complete answer to the question from the noble Lord, Lord Thomas? I do not think “best endeavours” is quite enough.
Lord Keen of Elie
I thank the noble Lord for his observations. He goes some way towards explaining why we arrange for these agreements to be interpreted by lawyers, not diplomats. Of course entering into something such as the Northern Ireland protocol involves an element of political judgment; we have to accept that, and the Attorney-General was entirely candid about that. There is a political judgment to be made. There is in the agreement no express right of unilateral withdrawal, and we accept that as well. However, if one or other party decides not to obtemper their obligations, there are mechanisms to address that.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I am sure the Minister will accept that this matter has major implications for Northern Ireland as an equal part of the UK and that the “best endeavours” that are spoken of today bring little comfort to us. So that we are not left to rely upon leaks from Cabinet papers, will the Minister confirm that the Attorney-General’s legal advice contains a warning on the use of the Irish backstop, in that it will continue unless and until a trade agreement between the UK and the EU supersedes it?
Lord Keen of Elie
I thank the noble Lord for his question but I am not in a position to say that the Attorney-General has or has not given legal advice on any issue to the Cabinet.
Lord Goldsmith (Lab)
My Lords, I do not intend to come back on the question of whether or not the Attorney-General’s advice should be disclosed; my views on the undesirability of that in the past are well known. I want to come on to the question of substance, which is important. The Minister has talked about the backstop and how it may be avoided. Could he confirm that the backstop will come in unless there is a concluded agreement? Could he confirm that, as the Statement by the right honourable Attorney-General says, it would continue in force,
“unless and until it was superseded by the intended subsequent agreement”?
That corresponds with the provisions of Article 1.4 of the protocol and indeed of the recital. Does the Minister agree that there are obstacles to avoiding that? He says you can use the “best endeavours” obligation. The right honourable Attorney-General said you can prove that only with “Clear and convincing evidence”. Does he agree with that? Does he also agree that simply finding a note dropped by President Macron saying “I don’t want to do a deal with the UK” will not satisfy that requirement?
Could the Minister please explain how the arbitrators have the power to impose a deal on the EU or the UK? It is one thing to say that someone is in breach of a provision; it is another entirely to impose on us and the EU an agreement that we have not reached. I go back to the words,
“until it was superseded by the intended subsequent agreement”.
I could find nothing in the 500-odd pages saying that the arbitral panel has the power to impose such an agreement. I see nothing that says anything other than that if the dispute is there, it can be passed to the arbitral tribunal. But how does the arbitral tribunal impose that, and why does the protocol state that it remains in force unless and until it is superseded by a subsequent agreement, rather than its saying unless and until it is superseded by a subsequent agreement or a decision of the arbitral tribunal?
Lord Keen of Elie
I thank the noble and learned Lord for his observations. His last comment is not the position under the agreement. It is not for the arbitral tribunal per se to simply impose an alternative agreement to the backstop, so let us clear that out of the way.
Let us look at the terms of the Northern Ireland protocol itself. If the backstop comes in, it will continue until superseded by an alternative agreement that the parties consider renders the existing backstop in the protocol no longer necessary. That is perfectly clear. It does not address the situation in which one or other of the parties simply fails to obtemper their legal obligations under the Northern Ireland protocol, including the obligation to use their best endeavours to arrive at a new arrangement in place of the existing backstop. In that event, the matter will ultimately go to the arbitral tribunal. Pursuant to Article 178, it has certain powers. It can impose financial penalties, just as the EU can impose financial penalties on a member that does not obtemper its obligations under EU law. The arbitral panel will have the power to impose financial obligations on parties who are in breach. If they do not then obtemper their obligations, it has the power to allow for the suspension of an obligation under the terms of the protocol.
These are temporary measures that would be taken to ensure that a party ultimately performs its obligations under the treaty. Failing that, there is the issue of Article 60 of the Vienna convention. However, I do not believe that anyone anticipates that we are going to go down that road. It is very clear that, for political reasons, it would not be in the interests of the EU, any more than those of the United Kingdom, to prolong the backstop in the Northern Ireland protocol any more than is absolutely necessary to maintain the integrity of the Good Friday agreement and the open border on the island of Ireland.
Lord Howard of Lympne (Con)
My Lords, the noble Baroness, Lady Chakrabarti, asked my noble friend whether he could identify any precedent for a country handing over such a wide range of vital issues affecting its national interest to a panel of arbitrators. Does he have an answer to that question?
Lord Keen of Elie
It is not uncommon for very material issues pertaining to the territorial integrity of a country to be put into the hands of a third party. I cite the recent case of Bolivia and Chile before the International Court of Justice, where judgment was delivered on 1 October this year, with regard to the failure to agree over the issue of access to the Pacific.
Sport: Drugs
(5 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Addington
To ask Her Majesty’s Government what steps they are taking to prevent the use of image and performance enhancing drugs in amateur and junior sport.
Lord Addington (LD)
My Lords, I put down this debate a good few months ago. The matters under discussion, and certainly my awareness of them, seem to have grown between then and now. I initially spoke about amateur sport and drug taking because I was receiving increasing amounts of information that amateur sport, and particularly rugby union, was finding an increasing number of people who were testing positive, particularly in the lower grades. I may be being a little unfair to my own sport, in which I still occasionally run out—although I have a nagging suspicion that the games I am playing in now are probably not the primary target for drug misuse at any level. However, it is a sport that encourages body mass, dynamic explosion and strength, as these are huge advantages when it is played at a competitive level.
The attitude of the sport seemed to be that it was not a big problem because it was all about gym bunnies who were into building themselves up, but that it was extending testing down the leagues. There are all sorts of implications of that: if it is only a few people and they are casual players, why are they putting in testing further down? Clearly there is a danger that drugs are getting into types of amateur sport. Some people have taken it seriously and put good programmes in place. Canoeing, rowing and cycling have been recommended to me and have been given a pat on the back from UK Anti-Doping.
As this debate approached and I started asking around for briefings, I got a series of communications from UKAD which made me think that my original title might be a little narrow. The only change I felt I could make was to add in image-enhancing drugs. I am talking about amateur sports, but it is quite clear that I am catching the edge of a bigger problem. Steroids, and other drugs like them, have become part of a fashion revolution to get people bigger and stronger. The easiest way to do that, and to enhance your image, is to use steroids. This affects sport in a certain way, but the evidence is incredibly difficult to gather. By its nature, these are amateur sportsmen who are not, in most cases, contractually bound. You cannot get at them; you cannot test them all the time; and a lot of the evidence is anecdotal.
What we have discovered is that the availability of performance-enhancing and image-enhancing drugs is incredibly wide—I would say almost endemic. You cannot go anywhere near this field without finding them available. I asked, but got very little support on, a question about the actual medical damage done to people who take them. When doing my own research, I discovered an article on a website which happened to be linked to somebody who was supplying drugs. It was very informative and said that oral steroids, in particular, are very bad for your kidneys and encourage cirrhosis of the liver: it is not surprising that they damage you. As I was going through the site, little flashes were coming up saying that somebody had purchased. There were three purchases in the London area in 10 minutes. So what comes across is how readily available these things are—and how it is almost impossible to find out what is going on. It is getting more complicated all the time; that is the problem we are hitting.
What can the Government do to support these sports and their governing bodies? It is clear that, at the moment, the huge amounts of money and effort that would be required for a coherent strategy are simply not available. Clubs often rely on amateur structures and they do not have the money to undertake coherent testing. They are dependent on the governing bodies, which would rather spend it on something else. How far down do you go? If casual use is coming in, what do you do? This is becoming incredibly difficult to play out. The only people who can take a coherent position at the top—on education, for a start—are the Government, and more has to be done.
There are lots of lists of nasty side-effects from acquiring muscle mass by using steroids and the other drugs that come into this. Acne is common for males and females; hair loss on the head; shrinkage of the genitals—not great fun; and the development of breasts. These are possibly not the best things to enhance your image. In the long term, and more seriously, there is an increased danger of heart attacks and kidney and liver failure. But there is still a lack of information behind simple statements that this is happening and this is nasty. We know that this type of campaign has to have something more behind it. You have to have somebody telling you that there is more to this and some way of enforcing compliance with sticks or carrots. At the moment there seems to be a combination of: “It’s somebody else’s problem; it’s not really us; we haven’t found anything”—though all the information suggests that you are not finding it because you have no way of testing and nobody has the incentive to look that hard and find out what is going on—and, “It’s too difficult”. Unless more information is made available about the damage being done, such as platelets in the blood causing heart attacks and strokes, you will not have an effective tool to get on the education pathway.
Another problem is that many of these drugs are taken by injection. All the problems associated with injecting any form of drug then come into play. Hepatitis C, HIV, you name it: everything that is tied in with needle sharing is there. There are also behavioural problems— “roid rage”, I think it is called—and a great increase in the amount that people drink when they take steroids. So it is a confused picture.
I now come to probably the only bit that might get reported, which is the fact that gym culture is being personified and built up in the public mind. There comes a time when certain TV programmes capture the national zeitgeist or are seen to be the symbol of everything that is wrong; I am afraid that “Love Island”, on ITV, seems to be the one that has got us here. So far, we have had complaints here, which have been followed through and acted on, about selling plastic surgery and excessive smoking on the programme. But it also personifies the gym and “body beautiful” culture that we have been talking about. UKAD wrote to the producers on 2 August of this year to ask what they were going to do about it, because one contestant on the programme, Frankie Foster, had been banned from playing rugby because of a doping offence. To date it has still not received a reply. Surely the Minister can tell us what the Government are doing to encourage those TV producers and everybody else to intervene there.
If you are saying that it is great to go for the gym body look, with everything else—often you will have to take other drugs to cover up some of the side-effects of the steroids or other bodybuilding drugs you are using—surely that cannot be right. We are just starting to see the tip of this situation. Can we please find out what the Government are doing to try to get further into it?
Lord Moynihan (Con)
My Lords, I thank the noble Lord, Lord Addington, for raising this vitally important area of key sports policy.
Your Lordships may recall that at the time of the London Olympic and Paralympic Games in 2012, Tina and Chris Dear set up the Matthew Dear Foundation. Tina Dear focused on the fact that any parent with a child who takes anabolic steroids should be aware that the drugs can be highly dangerous and addictive. Long-term use can lead to aggressive behaviour, mood swings, liver or kidney tumours, strokes, heart attacks, or worse. Tina Dear knows just how devastating the drugs can be. Her son Matthew was 17 when the young cadet started taking steroids in an attempt to “bulk up” and become a Royal Marine, but within weeks, he was dead. While the post-mortem was inconclusive, Tina believed that the muscle-building drugs, which he bought illegally, caused his brain to swell. He died just three months before he could take the selection test.
There have been many such deaths: drugs taken to enhance performance without proper medical supervision, taken through drug rings around body-building gymnasiums. Tina Dear said:
“It just makes you realise that the message needs to be put out there that these drugs are dangerous. A lot of these youngsters who take steroids don’t see them as drugs—they think they’re some kind of supplement and don’t see them as dangerous. It’s important to raise awareness and show these youngsters they can still achieve the body they want the healthy, natural way, without steroids”.
The noble Lord, Lord Addington, has highlighted the importance of that issue. Tina and her husband now run the Matthew Dear Foundation, which does vitally important work for hundreds of young people who have suffered as a result of taking a range of performance-enhancing drugs.
I will pick up on one of the points the noble Lord, Lord Addington, mentioned, by looking at the academic work that has been done to emphasise just how serious this issue has become. The use of anabolic-androgenic steroids—AASs, as they are called—by professionals and recreational athletes is increasing, not just in this country but worldwide. The underlying motivations are, as the noble Lord said, mainly performance enhancement and body image. AAS-using athletes frequently present with psychiatric symptoms and disorders, mainly somatoform and eating disorders, but also mood and schizophrenia-related disorders. They are also unfortunately linked to psychotic behaviour the length and breadth of this country. In fact, AAS use is no longer limited to a small number of athletes, bodybuilders or weightlifters, but currently extends to the general population, including young people, probably because of the highly competitive nature of school and college sport. In the States, Welder and Melchert reported that over half a million high school students have taken AASs for non-medical purposes. This raises serious concerns regarding the numerous adverse effects of these substances.
There are many such cases. The facts, as evidenced by the Advisory Council on the Misuse of Drugs, are that steroids have increasingly become the key issue for young men, who have gained access to them over the internet. The council has gone so far as to call for a ban on their sale from the hundreds of overseas websites that deliberately target users across Britain. Chief drugs adviser Professor Les Iversen says:
“At the moment, information is much too easily available. The material available online is often contaminated”,
which of course is dangerous in its own right. If you search online, as the noble Lord, Lord Addington, has, and I did earlier today once again, you will see endless offers. As Professor Iversen says, a ban on importation,
“would have a considerable dampening effect on demand”.
I understand that it may be difficult to enforce, but it would act as a simple deterrent.
These steroids are manufactured to mimic the effect of the male hormone testosterone, and are taken to increase muscle mass and athletic performance. As I said, they can be highly addictive, and many of the performance-enhancing substances can also have serious side-effects, including infertility, an increased risk of prostate cancer, splayed teeth, high blood pressure, heart attacks and strokes, and tumours. They can also cause mood swings and hallucinations.
Even here, figures from the Crime Survey for England and Wales, published by the Home Office, estimate that 50,000 people in the UK use steroids to train harder and quickly build muscle. But researchers quite rightly claim that the real number could be far higher, because many people do not openly admit to using them. The real growth has come in young users who want to improve their body image, and steroids sit in the legal grey area between a medicine and a banned recreational drug.
Again, that point of body image was picked up by the noble Lord, Lord Addington, when he referred to the 2018 season of “Love Island”, which featured, as he mentioned, Frankie Foster, a former rugby player, now a fitness coach and a star on the show, who was previously banned for 18 months from his sport for having tested positive for steroids. Television has a vital role to play, and a responsibility. It must understand that the impact this programme unwittingly has to date is to develop role models not to inspire good example, but in this case to damage lives.
To come back to sport, the rugby union point is important, and it is the area where we have the highest number of image and performance-enhancing drugs—IPED—cases. UKAD is doing excellent work in this area. It recognises that a key area in the anti-doping landscape is the risk and vulnerability surrounding young athletes transitioning to senior sport from the amateur ranks. Of course, many of those in transition are in higher education or universities, and too often, university gyms are the breeding grounds for banned performance-enhancing drugs. Many are unsupervised, with poor educational programmes, easy access to the drugs, a near total absence of spot testing, a lack of education and poor medical advice. They are the breeding grounds for far too many young people who want to migrate into the professional ranks of sport. They are also exceptionally dangerous, because in many respects, the lack of education means that the opportunity to access contaminated drugs is increased.
UKAD has a very good programme, called the Clean Sport Accreditation Scheme, which recognises higher and further education institutions that meet a set of minimum standards towards their anti-doping obligations. But only three universities are currently fully accredited, with an additional 25 colleges and universities in the accreditation process. I ask the Minister—not necessarily in his response, but following this debate—to look at whether more work can be done and more funding supported and directed towards this initiative, because there is a need to prioritise the work that UKAD is doing with universities in this area.
I have often argued—and I take this opportunity again to make the point—that using performance-enhancing drugs in sport should be a criminal offence, and should apply as a criminal offence only in circumstances where an athlete knowingly takes a prohibited substance with the intention of enhancing his or her performance, or where a member of an athlete’s entourage encourages or assists an athlete in taking such a substance. Both the criminal offence and any sporting sanctions should apply simultaneously. This aims to enhance drug-free sport and create an awareness among young people that, if they start taking performance-enhancing drugs, they face potential criminal sanctions. It also would create a level playing field among athletes and would move English law into line with other European countries and fully recognise—as many people on all sides of this House recognise—that doping in sport to achieve competitive advantage through cheating is no different to defrauding a fellow athlete and should be covered by the same criminal sanctions as those applicable to fraud.
Finally, I ask the Minister wherever possible to highlight the importance of clean athletes being party to this debate. Beckie Scott, athlete committee chair for the World Anti-Doping Agency—WADA—claimed recently that she was bullied by Olympic movement officials at the meeting that saw WADA controversially reinstate Russia. It is vital that there be no opportunity, ever, for bullying members of athletes’ commissions at whatever level—governing bodies, the International Olympic Committee or indeed WADA. I hope the Minister can fully support Beckie Scott and, through her, all athletes who want to participate fully and to be listened to in this critically important debate.
Lord Goddard of Stockport (LD)
I too thank my noble friend Lord Addington for instigating this debate. I will say at the outset that I am not going to use acronyms if I can help it.
I visit many schools and academies delivering the Lord Speaker’s Peers in Schools outreach programme, and one of the questions I am asked by young people is: what is the relevance of this House? It is shown in debates such as this and other debates that touch on the uncomfortable aspects of society—subjects that Parliament tends puts in the “too hard to do” box, which we take on and deal with. An example was last year’s debate on sexual abuse in sport; a difficult debate to listen to. In that debate, I highlighted the cases of footballers—David White, Paul Stewart and Ian Ackley to name but three—who had come forward and told their stories. Following a mammoth police investigation, the instigator Barry Bennell received a 30-year prison sentence. We can help to make a difference.
Today we ask Her Majesty’s Government what steps they are taking to prevent the use of image and performance-enhancing drugs in amateur and junior sport. The reasons for the use of such drugs are many and varied for our young citizens: poor self-image; the need to fit in; peer pressure from the constant barrage of instant news from Twitter, Instagram, Snapchat and other platforms I have probably never heard of; the need always to feel perfect, with perfect body image, whatever that is—I have absolutely no knowledge. In my view, “Love Island” has exacerbated the situation, as has previously been commented on. Allowing someone who has been convicted of a drug offence to portray on television to millions of impressionable young people a vision of what they mistakenly think they should look like in order to be accepted in today’s society does not create an appropriate role model. That needs to be dealt with.
There was a very interesting debate on knife crime last Thursday in this House. The noble Lord, Lord Harris of Haringey, told us:
“In 2010, £1.2 billion was spent across the country on youth work and youth services. Last year that had fallen to £358 million: a 68% cut. Other public services, such as probation, that help to reduce the risk of crime or support young people have suffered similarly, as has the funding available to charities and the voluntary sector. Our social fabric is being stretched so thin that it has become almost transparent”.—[Official Report, 29/11/18; col. 773.]
It cannot be a coincidence: along with the reduction in support for young people, the use of image and performance-enhancing drugs and steroids has doubled or even trebled over the last few years. Our young people need real support, positive role models and a strategy that goes right back to the heart of family life and self-worth; in short, a truly holistic approach, not just a sticking plaster of one short-term fix after another.
Linford Christie, who served a two-year drugs ban from athletic competition, said that athletics,
“is so corrupt now I wouldn’t want my child doing it”.
That is a damming indictment, one we must challenge and change.
The BBC did a survey of 1,000 members of sports clubs and the results are truly frightening. Some 26% say they have previously consumed prescribed medications such as cortisone injections, or used asthma inhalers, to support their performance. One in seven, 14%, of sports club members say they have used recreational drugs for the same purpose, while 8% say they have used anabolic steroids. A sizeable proportion of sports clubs report that performance-enhancing drugs are frequently used and easily available. Some 50% of sports club members agree that taking substances which improve performance is widespread among people who play competitive sports, while the same proportion agree that performance-enhancing drugs are easily available for people who play sports regularly. To me, this survey is doubly worrying. It is not only about the percentages of drugs being used but the environment in which they are used, in the heart of our communities: sports clubs—places where our young people should be safe while taking their first steps in sport they love.
However, the problem is much larger than that. We usually associate certain sports with drug-taking: athletics, cycling and weightlifting. But now you can add to that list golf, show-jumping and—to the disgust of the noble Lord, Lord Addington—rugby. And the evidence jumps to another level: orchestra musicians are even taking blockers to prevent stage fright.
It is not too late to intervene: we must deal with the issue of steroids freely available online and the seemingly endless supply of drugs available to people of all ages, in particular impressionable young citizens who see it as the shortcut to success. I meet lots of young people who are fantastic, clean and desperate to do well in life and in sport, but we have too many too close to the edge. Now is the time for Government to step up and give them a real chance.
Lord Griffiths of Burry Port (Lab)
My Lords, we can only be grateful to the noble Lord, Lord Addington, for his perseverance in this cause. I have had occasion, as others have, of reading the Library briefing, and the piece de resistance was the debate in late 2015 when the noble Lords, Lord Addington and Lord Moynihan, and the noble Baroness, Lady Grey-Thompson, laid out the case perfectly. In a sense, all we need to do is resurrect what was said then in such an authoritative way. The Government in their response made it clear that they are aware of the seriousness of this question and are anxious to address it as creatively and as generously as they can.
In reading about all this I did not want to go over the ground so ably covered before me in so far as this problem affects sporting practitioners. For the very first time in my life, I read one of the annals of epidemiology—the things you get drawn to by membership of this House. One long article states that this is the very first meta-analysis of the global lifetime prevalence rate of anabolic-androgenic steroid use. I cannot oblige the wish expressed by the noble Lord, Lord Goddard, to avoid acronyms. I think that AAS is what that will have to be from now on.
However, the findings in that article suggest that the use of AAS is more prevalent among teenagers than among those older than 19 and that non-medical use of these steroids has steadily increased in recent years. Indeed, it has become a major global public health problem that requires the attention of policymakers and researchers. However, it is the spread from the focused sporting evidence to something rather more general that has really caught my attention.
When looking at the material put our way by UKAD, which is concerned with the use of drugs in sport, I found myself looking most specifically at the fact that it has found users as young as 14 indulging in these substances. The fact that we cannot yet control the internet sufficiently makes it possible for young people to access these drugs. As the noble Lord, Lord Addington, said, injecting has become normalised.
It is disturbing that UKAD sets out the programmes for dealing with the problem. For the 16 to 24 age group, there is a programme with gyms and leisure centres in mind; for the 16-plus age group, there is a programme with university and colleges of education in mind; for those aged 14 to 18, there is the Clean Games Policy, for use in major sporting events; for children of 11 to 16 years of age, there is Think Real, delivered in PE lessons with the collaboration of Sport England; and for those aged 10 to 14, in years 7 to 10 in schools, the Get Set for the Spirit of Sport material is taught in the classroom. What worries me is the fact that all those strands of educational initiative have clearly been devised in response to what is perceived as a prevalent problem.
I was surprised to see turn up on my desk material from the Welsh Rugby Union, with its anti-doping protocol and guidance. We know that rugby lends itself to a massing of the body, and there is a great temptation for those who want to get on in the professional game to resort to that. However, in its protocol and guidance the WRU targets under-15 squads of amateur players, who are beginning to get the idea that using these drugs and massing their bodies in this way will help them when one day they turn to a more representative form of playing the game.
Out of all this, and without repeating what others have said, I have become aware of something that I want to leave as my contribution to this debate. I have been standing in this position at the Dispatch Box for only a few months and we have discussed doping in sport more than once, as well as how it affects children. Only a year ago, the Minister and I, together with my dear friend Wilfred—my noble friend Lord Stevenson—were engaged endlessly in discussing the Data Protection Bill, which became an Act. Significant parts of that legislation had children and the internet in mind, and a number of amendments were framed to help deal with the problem of children being exposed to possible misuse of the internet.
Only a month ago, I stood here talking about children and gambling, and the way that the advertising industry and television target children by exploiting their interest in sport and other events. I think that the number of children quoted was half a million. So children feature across all those fronts. We have also just heard about a debate that took place here last week on the subject of knife crime—again, involving teenagers—and only yesterday the head of Ofsted talked about obesity among children, as well as knife crime and bullying.
In all those things, I see a common thread. There is a need to take the specificity of this debate and incorporate it holistically with all the other concerns that have been expressed in this Chamber in recent times, recognising that perhaps the time has come for us to look generically at how the needs of children are addressed. The Children Act 1989 was a great step forward and a real turning point, and it seems that we are now ready to look generically at this question all over again. Therefore, I am delighted that my noble friend Lady Armstrong of Hill Top has tabled a debate for two weeks on Thursday that will simply ask us to look at the state of young people in our society today. It sounds vacuous and general but it could be the key to entering this very necessary area of consideration, looking at the needs of children in general across these fronts so that they might again just enjoy being young.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, I too thank the noble Lord, Lord Addington, for introducing this debate on image and performance-enhancing drugs. I think that it has moved on beyond that to a certain extent, and the noble Lord, Lord Griffiths, ended up with a more generic view of children. I shall come back to some of those points.
This is a reasonably easy debate to answer because I agree with practically everything that all noble Lords have said. I hope that I shall be able to show not only that we agree with many of the points that have been made but that we are doing something about them. When I say we, I mean we as a Government, because UK Anti-Doping is an arm’s-length body of the DCMS, which is how we promote work in this area.
Like all noble Lords who have spoken, we recognise how important it is not only to protect the integrity of sport, which includes our commitment to keeping sport free from doping, but to protect people from the negative influences outside sport that could cause them harm. As the noble Lord, Lord Addington, mentioned, many young people who watch shows such as “Love Island” could be influenced by images of—how shall I put it?—apparent aesthetic perfection. These unrealistic portrayals of how the average healthy person is supposed to look could well be a reason for the increase in the use of image and performance-enhancing drugs. I will come back to “Love Island” in a minute.
The growth of social media has played a part in making young people feel under more pressure than ever about how they look and to perform at the highest level possible. UK Anti-Doping, an arm’s-length body of DCMS that is widely thought of as one of the world’s leading national anti-doping organisations, is working closely to combat this new trend. As has been said, the majority of anti-doping rule violations in the UK arise as a result of IPED use, particularly steroids. Of the 27 violations published by UKAD, 19 were related to IPEDs. Rugby union players were involved in the largest number of cases, which was as many as boxing and athletics combined.
Tackling the use and sale of IPEDs is part of the Home Office drug strategy, which states that it will take,
“coordinated action working with key partners … and independent experts to better understand the IPED using population”.
In relation to the points made by the noble Lord, Lord Addington, it goes on to say that it will,
“raise awareness of the risks of IPED use, including the spread of blood borne infections; support local areas to respond effectively; and take action as necessary to disrupt the supply of IPEDs and any associated criminality”.
In direct answer to the Question on the Order Paper from the noble Lord, Lord Addington, perhaps I can mention some of the measures being taken by UKAD to tackle the use of IPEDs through its various educational programmes. Earlier this year, DCMS led a tailored review of UKAD. One of the outcomes involved UKAD looking further into the health harms associated with the abuse of IPEDs. This was movingly mentioned by my noble friend Lord Moynihan, who gave a specific example. I am therefore delighted that we managed to secure additional funding of £6.1 million to help UKAD carry out the recommendations in the tailored review.
Education and promoting a culture of clean sport in youth sport is important, as was mentioned by the noble Lord, Lord Griffiths. UKAD had a presence at this year’s School Games, attending with national trainers to educate on the values of sport, anti-doping rules and responsibilities, and to give young athletes an insight into the testing process via a mock testing scenario. In accordance with UKAD’s clean games policy, all British athletes attending the Youth Olympic Games and the Commonwealth Youth Games undertake mandatory specific education to support them through the anti-doping procedures during major games. As the noble Lord, Lord Griffiths, mentioned, UKAD has other schemes for even younger audiences, such as Get Set for the Spirit of Sport, a classroom-based education syllabus for children aged 10 to 14, and Think Real, a more advanced scheme for 11 to 16 year-olds. I take the point made by the noble Lord, Lord Griffiths: the fact that we are having to provide such schemes for children of that age is itself worrying.
UKAD offers a free online accredited adviser course, which is promoted through the national governing bodies, to provide those working with junior and amateur athletes the training required to be able to support athletes and their coaches in their anti-doping responsibilities. For a broader audience, Clean Sport Week in May was a public awareness campaign with the objective to educate athletes on the risks of using sports nutrition supplements. As has been highlighted in the debate, uneducated use of supplements is prevalent in amateur sport and presents heightened risks to amateur athletes. The campaign also used social media to better engage younger athletes. It was a partnership with national governing bodies and sports bodies, including the Rugby Football Union.
Several noble Lords, including the noble Lord, Lord Addington, and my noble friend Lord Moynihan talked about gym culture. UKAD recently agreed a research project partnership with ukactive, aimed at giving a clearer understanding of image and performance-enhancing drug use in gyms and leisure centres.
We believe that responses and action from a range of stakeholders are required to make an impact. That is why the Government have set up a working group for agencies to come together for the co-ordination of a prevention strategy. The group has a strong cast list, including devolved public health agencies, the National Crime Agency, the Home Office, the police, the Department of Health and the Department for Education among others. A meeting was held in September, and included a session on sharing activities, initiatives and the views of partners on IPEDS to help gauge the next steps on how best to integrate information and education on the associated health harms and risks. The Home Office, Public Health Wales and the Scottish Government agreed to share data on IPED use, which UK Anti-Doping will analyse to give the working group a steer on how best to target users and potential users outside sport.
I realise that there is a surprising interest on the Liberal Democrat Benches in “Love Island”. Noble Lords will remember the Question of the noble Lord, Lord Storey, about smoking on “Love Island” after which it was banned in public places on the island, so it is true that highlighting the problems can have beneficial effects. But more seriously, because there is a valid point here, my answer to the noble Lord, Lord Addington, is the same as I gave to the noble Lord, Lord Storey. Editorial decisions such as drug testing on future contestants is up to the individual broadcaster. But broadcasters should be aware—I am sure they are—that they must adhere to Ofcom’s broadcasting code, which includes standards to ensure that under-18s are protected in relation to content dealing with drugs, smoking, solvents and alcohol. The illegal use and abuse of drugs,
“must not be condoned, encouraged or glamorised in other programmes likely to be widely seen, heard or accessed by under-eighteens”.
As the noble Lord, Lord Addington, said, UK Anti-Doping wrote in support of co-operation with the producers of these shows. I have seen a copy of the letter. I believe that noble Lords have not received a reply. Of course, is not for us to tell ITV how to answer letters, but it is a common courtesy to reply to a letter. I am sure that it will pay attention to that view.
My noble friend Lord Moynihan talked about UKAD’s clean sport accreditation, which I am aware of. I certainly agree with my noble friend that it is another example of positive work from UKAD in this area. It is for UKAD to decide where to allocate its funding, but I have taken on board my noble friend’s point and I will take it back. He also mentioned that we should ban imports. UK Border Force seized 5.2 million doses of anabolic steroids in 2016-17, an increase on the 4.9 million seized in the previous year. I mentioned the controlled drugs strategy published by the Home Office, which is reflective of the IPED challenge.
I nearly always agree with my noble friend, but we have talked about criminalisation before. The Sports Minister commissioned a review into the criminalisation of doping, which reported last year. Following the period of consultation, the review ultimately found that there was no compelling case to criminalise the act of doping in the UK. That reflected the strong consensus of those interviewed. But I accept and agree with his suggestion that it constitutes fraud on other competitors and probably sponsors, which may be a way forward.
My noble friend also asked whether I would agree that athletes should be involved in the process and in particular he mentioned Beckie Scott in WADA. I broadly support my noble friend’s comments regarding taking the views of athletes more seriously. Athletes know their sport and they know what is going on in many cases, and they should at the very least be part of the drive for clean sport. It is important that WADA is doing all that it can to restore faith in clean sport for both athletes and fans around the world.
The noble Lord, Lord Goddard of Stockport, mentioned role models. I also mentioned that in response to a Question from the noble Lord, Lord Campbell. I agree that role models are important and it is important for athletes to be encouraged to educate and inform young people about clean sport.
The noble Lord, Lord Griffiths, raised the question of children, not just in sport but in the Data Protection Act, gambling and advertising. In a way, it is beyond the scope of this debate and of this Minister to decide whether to look again at the Children Act, but I take his point. There are many areas of policy in which children are very important. I have another Question about children tomorrow, so I am sure that he will be in the Chamber for that.
I am grateful for all contributions. In outlining the Government’s actions, I hope that I have assured noble Lords that the Government will be working closely with all the necessary stakeholders to ensure that work is done to prevent, educate and, I hope, to protect.
Counter-Terrorism and Border Security Bill
Monday 3rd December 2018
(5 years, 4 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
Lord Alderdice
Lord Alderdice (LD)
My Lords, my noble friends Lord Paddick, Lady Hamwee and I have put down this amendment not so much for the purpose of tweaking the detailed wording of the Bill, but to raise a wider question about how much preparedness there is on the part of government and the authorities to seriously consider the rationale on which this Bill and counterterrorist policy as a whole is based. There is often a lack of welcome in general terms when people ask questions of a serious order about the whole direction of government policy, but in the area of terrorism it has been in my own experience quite regularly the case that when questions on it are raised, people are accused of being fellow travellers with terrorists. I frequently had that experience myself in Northern Ireland when I raised questions about the Government’s approach. I would be accused, not particularly by government Ministers but by leading political figures in the unionist community, of being sympathetic to the IRA.
There are positive things about this Bill. There has been progress and developments in technology which mean that elements of it are necessary, and I do not argue about that. But in some other ways the Bill is regressive because it is sliding away from the traditional commitment in this country, as distinct from other parts of Europe, that things are legal unless there is a very good reason for them to be illegal. Particularly when it comes to freedom of expression and people being able to look at the other side of the question, it is absolutely critical that we should be able to do that with freedom. That is why I was so supportive of and glad to see that we have passed Amendment 15. There is huge concern on the part of the many NGOs that are working not only on humanitarian and peacebuilding efforts but on trying to understand why it is that people commit themselves to terrorist activities.
We had to do that in Northern Ireland. For many years the received wisdom in this House and the other place and indeed in government generally was that the only way to deal with terrorism was through suppression—to put it down. That is all very well if it works, but it did not work. When the noble Earl the Minister responded in an earlier debate on this Bill by saying, “We are going with the grain of the Terrorism Act 2000”, the question for me was: yes, and has the 2000 Act worked? I do not mean has it worked in terms of the courts and there not being any adverse decisions, but has it worked in terms of terrorism being less of a threat to us now than it was when that Bill was passed in 2000? Terrorism has changed enormously over the period since 2000. At the time many things were happening that we are familiar with in this part of the world, but since then there have been two major developments in terrorism. Most terrorism in the world now is either Islamist of various kinds in its background or it is right-wing white terrorism, which is getting worse and is much less reported. The concern we are trying to express in this amendment is that we should be able to ask the difficult questions without being accused or in danger of questions being asked about our commitment to deal with the problem of terrorism.
When I listened to the noble Earl talking about “going with the grain of the Act”, I could not help but think of the phrase for which I am afraid Lord Denning will always be remembered in Ireland. He said that if it was the case that the Birmingham Six and the Guildford Four were not guilty, then it was because the West Midlands police had been lying, and that was too appalling a vista to contemplate. It may have been a vista too appalling to contemplate, but eventually it had to be contemplated because the truth is that they had lied. Eventually Lord Denning himself accepted that.
The problem is this: there is a real danger that the whole direction of policy, which is about the suppression of terrorism, is based on a complete misunderstanding. The misunderstanding is that people behave in an extreme way because they think in an extreme way. That is not the case. People act in an extreme way because they have extreme feelings, not extreme thoughts. I know lots of people with all sorts of extreme thoughts who would not dream of acting on them. I often say that many people believe in heaven but if you say to them, “Would you like to go there this afternoon?” they say, “Actually, I’m not in any great hurry”. People can have a lot of thoughts, but the question is whether they have the emotional motivation to act on them. I do not believe for a minute that the beliefs of people such as Gerry Adams and the late, lamented Martin McGuinness about a united Ireland, or even the strategy that they followed, changed but their feelings changed because they no longer felt that they, their people and their culture were being humiliated, disrespected and kept from making changes through democratic politics. The feelings about things changed. If we do not understand and address that, we will head into terrible trouble.
Some time ago, I had a long conversation with an old friend who ran the CIA for years. I asked him why America is making the same mistakes over and over again. It made the same mistakes in Afghanistan as it did in Vietnam. It made the same mistakes in Iraq as we did. When we went into Libya, we did not have to deal with things in the way we did. We made a right mess of it. The question of Syria has been spoken about. None of these things are getting better. They are all getting worse. At what point do we start asking serious questions about a rationale that says that stronger security measures are the way to deal with this issue? My friend said, “We no longer engage with people in the Middle East and listen to what they have to say so we don’t really know what’s going on with them. What’s being done is completely counterproductive. Years ago, I used to spend my time going to meet the leadership of Hamas, Hezbollah, Israeli settlers and others”. By the way, No. 10 was very happy to hear the results of those conversations at that time. Why did he have those meetings? It gave an insight into what is going on.
The Bill’s approach says, “Don’t engage with people. Ban everything they’re saying. Stop everything that anybody is doing to engage with them. Isolate them more”. There is no evidence that this works. In fact, I fear that the approach that has been taken is the kind that would be taken by a bad doctor who says, “If the medication is not working, double the dose”. What usually happens there is that you end up poisoning the patient. There is a real danger in the Bill, which my colleagues and I felt it necessary to mark out—not because we expect the Government suddenly to say that they got it all wrong and should stop the Bill. That is not the purpose of the amendment. We are trying to see whether there is an understanding that we need to question the rationale for the approach to terrorism in the Bill and in other ways. Otherwise, we will find ourselves locked into a kind of groupthink, which will produce a negative outcome that none of us in this Chamber wants.
There is also a danger of not just illegality but a chill factor for people speaking and thinking about these things. For example, phrases such as “giving reasonable excuse” for some of the work done by NGOs and others are used. What kind of language is that? Should we tell people that they need to give reasonable excuse to the authorities or should we encourage them to go into dangerous situations and risk their lives because it benefits us and the global community? We should not expect them to provide that excuse. The chill factor is quite clear. What do I do with students who ask, “Should we go and do some research in the Middle East to try to find out what’s going on?” After not just a Bill such as this one but recent events there, it is clear that this will be very discouraging, even for people at a post-doctoral level. That will mean that our approach will not be based on real evidence, understanding or appreciation of the problems.
We tabled the amendment to say, not just in the context of the Bill, that we can change some of the approaches, such as those in Amendment 15. We are also asking whether we can think more seriously about an alternative way of understanding what is going on when people engage in terrorism, rather than simply believing in suppression. Suppression did not work out in my part of the United Kingdom. Eventually, the Government had to do all sorts of things that they said they would never do because it was the only way to deal with what was ultimately a political problem, not merely one of law and order. I beg to move.
Lord Paddick (LD)
My Lords, I support my noble friend’s comments. We on these Benches have for some time had a concern about the so-called conveyor belt theory that radical, non-violent, extreme views necessarily lead to radicalisation and violence. Many groups in this country hold what most of us would consider to be extreme views, such as fundamentalist Christian groups and ultra-Orthodox Jewish groups, where we have no concerns at all that their extreme views will lead to radicalisation and violence.
There are other factors at play that receive no consideration as far as the Bill’s measures are concerned. We also express our concern that the Bill would tend to put people off debating extreme views, during which the counternarrative can be expressed, peoples’ dangerous views can be openly debated and their ideas shown to be false. The Bill and other measures like it are likely to close down that debate. Ultimately, a battle of ideas is the way to address the underlying issues rather than the approach the Bill takes.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank both noble Lords for their explanation of these amendments. One of the things that the noble Lord, Lord Alderdice, challenged the Government on was the rationale behind our counter- terrorism work. Perhaps it would be useful to set out some of that for him.
As stated in Contest, government and academic research has consistently indicated that there is no single sociodemographic profile of a terrorist in the UK, and no single pathway or, indeed, “conveyor belt” leading to involvement in terrorism. Terrorists come from a broad range of backgrounds and appear to become involved in different ways and for differing reasons. Few of those who are drawn into Islamist terrorism, for example, have a deep knowledge of the faith.
While no single factor will cause someone to become involved in terrorism, several factors can converge to create certain conditions under which radicalisation can flourish. These include background factors such as aspects of someone’s personal circumstances that might make them vulnerable to radicalisers, such as being involved in criminal activity; initial influences such as people, ideas or experiences that influence an individual towards supporting a terrorist movement; and an ideological opening or receptiveness to extremist ideology.
Most individuals who experience this combination of factors will not go on to become involved in terrorism because there are protective factors that safeguard against their doing so. These range from having no opportunity to develop extremist contacts to having other, more important priorities in their lives, such as their family, career or community. A small number of people who lack these protective factors may become radicalised. In these circumstances, a range of social and ideological influences can combine to intensify commitment to a terrorist cause and provide opportunities for them to act.
The process of radicalisation is driven by universal psychological needs for identity and belonging—those words are very important in this context—meaning and purpose, and, of course, self-esteem. Where these are met by constructive sources radicalisation will not flourish, but we also know that as a person deepens their involvement in terrorism this process will typically include voracious consumption of online propaganda. When in a group, further engagement in terrorism is also likely to include the individual isolating themselves from non-extremists and participating in low-level activity such as the radicalisation of others, or facilitation, fundraising, et cetera. There is some research to indicate that lone-actor terrorists have a higher incidence of certain mental and developmental health conditions than the general population, but I must stress that no one should assume that a terrorist suffers from a mental health condition or that a person with a mental health condition is a terrorist.
Lord Alderdice
My Lords, I am grateful to the Minister for explaining the Government’s rationale, none of which is particularly new to me. The disappointing thing about it is the limited perspective, on two or three fronts. First, terrorism is described almost exclusively as an individual phenomenon—individual people, this, that and the other thing. I started off in that position 30 or more years ago. What became clear to me in working with these situations was that it was a group phenomenon and not simply one of individuals.
The second thing is that the Minister emphasised again that a great deal of the Government’s approach is towards effectively suppressing or limiting terrorism, rather than trying to understand why communities feel—for genuine reasons, on occasion—a disenchantment that leads them to respond in such a way. I make the appeal again for the Government to be prepared to engage in an exploration of the questions, because it is clear that the approach we have taken for the last 20 years has not worked. We are not safer, globally, than we were 20 years ago—on the contrary. However, I am grateful to her because, by making the explanation, she is in a way continuing a process of conversation and exploration. That was the purpose of the amendment and of the general appeal that we do not simply depend on something we do not believe is working well, as there are alternative ways. I regard her explanation as a positive thing and I hope that it is part of an ongoing conversation that will take us to a better understanding and a better way of dealing with the problem with which we are all struggling. On that basis, I beg leave to withdraw the amendment.
“(1) Section 17 of the Terrorism Act 2006 (commission of offences abroad) is amended as follows.(1A) Subsection (2) is amended in accordance with subsections (2) to (4) below.”
Earl Howe
My Lords, I shall also speak to Amendment 25. Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, to which extraterritorial jurisdiction, or ETJ, applies. This means that individuals can be prosecuted in UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here. This will ensure that UK courts are able to prosecute terrorist fighters who travel to or return to the UK having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people in the UK.
In relation to this latter category of radicalisers, Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article, such as a flag, in circumstances which arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. As a result of Clause 2 it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances. As currently drafted, the effect of Clause 6 is that a person could potentially be prosecuted under Section 13 in the UK, having displayed while in another country the flag of a terrorist organisation that is proscribed in the UK but not in that country. This is something about which the Joint Committee on Human Rights has raised concerns, and the noble Baroness, Lady Hamwee, tabled amendments on behalf of the JCHR in Committee which would have removed the Section 13 offence from the ETJ provisions entirely, or alternatively would have limited ETJ in relation to Section 13 to UK nationals and residents only.
These amendments return to issues on which we have had extensive and helpful debates. I have set out very clearly and at some length the Government’s position on why this power is needed, but it is worth reminding ourselves of two key points. First, we have seen modern terrorist groups, such as Daesh, use slick and effective online propaganda, including activity covered by the Section 12 and 13 offences, which has been aimed at radicalising people in the UK, building support for terrorist organisations and ideology, and encouraging terrorist attacks in the name of such organisations. This activity is not currently within the jurisdiction of the UK courts where it occurs in another country, but as we have seen in the Syrian context, it can give rise to a very real and immediate threat within the UK. For this reason it is imperative that we extend ETJ to these offences, and that we do so in an effective and workable way which does not unduly limit the ability of UK courts to deal with serious terrorist activity. This is the effect of Clause 6.
However, I have considered and reflected carefully on the points raised previously by the noble Baroness, Lady Hamwee, on behalf of the JCHR, and by other noble Lords, about the breadth of Clause 6 as currently drafted, and I have recognised the strength of feeling on this issue. While I remain of the view that the safeguards I outlined in Committee will ensure that the power is used in a proportionate way, I accept that this has not provided sufficient assurance to your Lordships. I have therefore concluded that the extension of ETJ to the Section 12 and 13 proscription offences should be limited to cases where the individual is a UK national or resident, in line with the amendment proposed in Committee by the noble Baroness, Lady Hamwee.
Amendments 24 and 25 in my noble friend’s name deliver this. Although the noble Baroness’s earlier amendment focused on Section 13, the same principle arises in relation to Section 12 of the 2000 Act, which criminalises invitations of support for a proscribed organisation, and as a result of Clause 2 will also cover reckless statements of support. The government amendments therefore extend this limitation to both Sections 12 and 13. This will ensure that it will still be possible to prosecute in the UK courts a person who has travelled from the UK to join a terrorist organisation, and who has become involved in propaganda on behalf of the organisation while they are overseas. But it will exclude the type of case about which the noble Baroness has raised concerns, where a foreign national acts in support of an organisation which is not proscribed in his or her country—for example, if a Lebanese national living in Lebanon displays a flag associated with the military wing of Hezbollah or invites support for that wing of the organisation. These amendments will put beyond doubt that such a person will not be liable to be arrested or prosecuted should they subsequently travel to the UK.
I hope that these are welcome amendments and will answer the concerns that have been raised by a number of your Lordships. I beg to move.
Baroness Hamwee (LD)
My Lords, I am indeed very grateful for the Government’s amendments and their consideration of the points that have been made in Committee as well as by the committee, and at previous stages. They are very significant indeed. Amendment 26 is attributed to the Government on the groupings list but I will put that right. It would provide that, in connection with what we dealt with earlier today, the offences under paragraphs (ca) and (cb) will be relevant only where the actions are an offence in the country where they took place.
In Committee the noble and learned Lord, Lord Judge, who was very careful to be neutral about this, cautioned the Committee to take care:
“The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country … there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go”.—[Official Report, 31/10/18; col. 1368.]
The government amendments have indeed dealt with one aspect—the “who”, if I can put it that way—but not with the “what”.
Earl Howe
Amendment 26 seeks to place a different limitation on the ETJ power in relation to the proscription offences at Sections 12 and 13 of the 2000 Act which would limit it to cases where the offending activity would also constitute an offence in the country where it occurred. I mentioned earlier one key rationale for the new powers we are seeking, which is that terrorist groups use propaganda as a means of radicalising people in this country while basing themselves abroad.
Additionally, it is a fact that terrorist groups are by their nature most likely to be based in areas of conflict and instability where there may not be functioning systems of government or criminal justice, or clearly defined and well-developed terrorism laws equivalent to those in the UK. This means that it is entirely possible for a person to act in support of a potentially very serious terrorist organisation outside the UK and for the laws in that part of the world to criminalise that activity in a different way from the UK, or potentially not at all. This is not a reason to take no action against that person if they travel or return to the UK, if prosecution would otherwise be possible and appropriate. We must engage with the world and the terrorist threat as it is, rather than as we would ideally like it to be, and it would simply not be responsible to tie the hands of the police and the courts in this way. I share the noble Baroness’s wish that those who return to this country should repent, be reformed and form part of the society in which we all live and which we enjoy, but I say that without prejudice to the point I have just made that if they have acted in a way that profoundly harmed the people of this country, they should be brought to book.
I am afraid Amendment 26 would run a coach and horses through the idea that I have put forward, and it would most likely mean that it would not be possible to prosecute at all people who have engaged in such activity in places such as Syria. We might as well simply strike this provision from the Bill in its entirety if we are going to go down that road. For this reason I am unable to support the noble Baroness’s Amendment 26.
“( ) In subsection (3), after “citizen” insert “(subject to subsection (3A))”.( ) After subsection (3) insert— “(3A) Subsection (1) applies in the case of an offence falling within subsection (2)(ca) or (cb) only if at the time of committing the offence the person is a United Kingdom national or a United Kingdom resident.(3B) In subsection (3A)—“United Kingdom national” means an individual who is—(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,(b) a person who under the British Nationality Act 1981 is a British subject, or(c) a British protected person within the meaning of that Act;“United Kingdom resident” means an individual who is resident in the United Kingdom.””
“(ca) the cases in which a person “holds” an account include those where the person is entitled to operate the account;”
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Paddick, helpfully proposed an amendment in Committee to close a gap he had identified on accounts which a terrorist offender is entitled to operate but does not hold in their own name—for example, because they are an authorised signatory to the account of the relative or employer. I recognised then that there might well be merit in the amendment and committed to take it away to consider it further. I have just done that and find myself in agreement with the noble Lord that this is indeed a gap in the current Bill and that his suggestion will close it and improve the Bill.
Amendment 27 therefore implements his suggestion, for which I am very grateful, and I commend the amendment to the House.
Lord Paddick
My Lords, I am very grateful to the Minister, but I cannot possibly claim credit for the amendment: it is actually the work of my noble friend Lady Hamwee. That having been said, we are very grateful that she listened to our arguments. We hope that noble Lords will realise that we on these Benches look to be hopeful, not necessarily negative about legislation. We hope that closing this loophole shows that we are working together to try to improve legislation.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,
“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]
That has encouraged me to raise the issue again.
This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.
The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.
We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.
I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?
The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,
“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.
He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:
“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”
That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.
Baroness Williams of Trafford
My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.
The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.
It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.
In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,
“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)
I can only echo the noble Lord’s words.
The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.
Lord Anderson of Ipswich
Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?
Baroness Williams of Trafford
I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.
Baroness Hamwee
My Lords, as I said, two bad laws are twice as bad as one. The Minister said that the experience is that terrorist offenders are likely to be unco-operative when they are asked to host a home visit—and I wonder why they are unco-operative. This seems a very intrusive power. We are talking not only about entering a person’s home but, to take just one of the purposes mentioned by the Minister, assessing their mental health. What is done when that visit, or entry, is made, to undertake that assessment? The power is much broader and deeper than it may appear on the surface. I will not repeat the debate that we had last time but I do not feel that I am any more enlightened or, I have to say, any more persuaded. However, I accept that we are where we are for tonight, and I beg leave to withdraw the amendment.
“Persons detained under port and border control powers
(1) Schedule 8 to the Terrorism Act 2000 (detention) is amended as follows.(2) In paragraph 6, after sub-paragraph (3) insert—“(4) A detained person must be informed of the right under this paragraph on first being detained.”(3) In paragraph 7, after sub-paragraph (2) insert—“(3) A detained person must be informed of the right under this paragraph on first being detained.”(4) In paragraph 9—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 7 to consult a solicitor.(2) A police officer of at least the rank of superintendent may direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) omit sub-paragraphs (4) and (5).(5) In paragraph 16—(a) in sub-paragraph (8), omit “Subject to paragraph 17,”, and(b) after sub-paragraph (9) insert—“(10) A detained person must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.”(6) In paragraph 17—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 16(6) to consult a solicitor.(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (3), direct that the right— (a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) in sub-paragraph (3), in the opening words for “(1)” substitute “(2)”.”
Baroness Williams of Trafford
My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.
During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.
Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.
The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences: for example, interference with evidence or gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.
Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been detained under either power must be provided with a “notice of detention” that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.
While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.
Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.
We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.
I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.
Lord Rosser (Lab)
The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.
The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,
“in the sight and hearing of a qualified officer”,
and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.
We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.
Baroness Hamwee
My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:
“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.
It also comments on:
“The process by which material can be identified as constituting legally privileged material”,
and asks who is responsible for making the determination, as that is not,
“explicitly clear in the Bill as drafted”.
It continues:
“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.
As I said, I thought that it was worth putting those comments on the record.
My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.
Baroness Williams of Trafford
I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—
Lord Rosser
I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?
Baroness Williams of Trafford
From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—
Lord Carlile of Berriew (CB)
May I make an effort to help out the noble Baroness? There was a time in my professional life when I used to be instructed by duty solicitors at London Heathrow Airport and London Gatwick Airport. The fact is that the duty solicitors at ports of entry are accustomed to dealing with all kinds of issues that arise there. Indeed, the quality of work that emanates from being a duty solicitor in significant ports of entry is high. Therefore, one can reasonably assume that one is getting not any old solicitor but a solicitor who has some understanding of the kind of work that can arise in that setting. There is also some training available, and it is usually done very co-operatively. Has that given the Minister enough time to be able to read the writing—or she may wish to just agree with me?
Baroness Williams of Trafford
I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.
As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.
Lord Rosser
The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,
“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.
I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.
Baroness Williams of Trafford
He or she will be perfectly entitled to consult a solicitor by phone.
Baroness Hamwee
(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”
Baroness Hamwee
My Lords, the JCHR proposed a number of amendments on the subject of biometrics for the last stage. The Minister gave a long reply, quoting the Biometrics Commissioner’s support for bringing the periods for retention of data for arrest on suspicion of terrorism offences into line with arrests under the Police and Criminal Evidence Act. At that stage, it seemed to me that this did not go to the question of oversight by the commissioner, and I still do not think that has really been dealt with.
I confess that I had to go by way of Beachy Head and along the byways of PACE to arrive at Amendment 30, so I am well prepared for criticisms of the drafting. However, it is intended to ensure that the retention of biometric data for a terrorism offence has consent from the commissioner. I am entirely open to a different way of achieving that end, but I am certain in my own mind that, whatever the basis of arrest, the retention of data should require this consent. I beg to move.
Earl Howe
My Lords, as the noble Baroness, Lady Hamwee, has made clear, this amendment returns to one of the issues raised in the reports on the Bill by the Joint Committee on Human Rights: the rules governing the retention of biometric data in national security cases. I am sorry that the noble Baroness remains unpersuaded by my previous response. I will do my best to be more persuasive today.
Without going over too much ground, it may be helpful if I briefly reiterate that Schedule 2 amends the laws that govern the retention, review and deletion of fingerprints and DNA profiles by the police for national security purposes. The intention of these provisions is to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that the retention of DNA and fingerprints continues to be proportionate and subject to appropriate safeguards. Schedule 2 delivers this and, importantly, it retains proportionate safeguards, including regular case-by-case review and the robust independent oversight provided by the Biometrics Commissioner.
The noble Baroness’s amendment would amend paragraph 2 of Schedule 2, which harmonises the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. Paragraph 2 does so by providing for biometric data to be retained for an automatic period of three years when an individual is arrested under PACE for a qualifying terrorist offence.
As the noble Baroness is aware, currently an individual arrested under the Terrorism Act 2000 may have their biometric data automatically retained for three years. But the same automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE. Rather, in that case, ongoing retention for national security purposes would require the police to make a national security determination with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention were solely for the prevention or detection of crime generally.
Our position on this is that having two different retention regimes in such cases is quite simply anomalous. The Bill will provide for a more consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism by providing for the same retention period in otherwise identical terrorism cases regardless of the power of arrest used. This is a proportionate and logical change.
The noble Baroness’s amendment would mean that this inconsistency between the two retention regimes would persist. Particularly against the backdrop of the heightened threat picture we face today, I am clear that it is important that the police are not deprived of information that could prove vital to keeping the public safe. That is what underlies a lot of what we seek without removing, as I emphasised earlier, the safeguards that are in place.
As noble Lords would expect, we consulted the Biometrics Commissioner on this provision. He is clear that he supports the measure, and I quoted his words last time. The noble Baroness’s amendment would have the effect not of modifying or improving this aspect of Schedule 2 but of effectively nullifying the provision and preserving the current anomaly. That disparity is not sustainable and I see no good reason for continuing it.
I sense that I have not persuaded the noble Baroness in what I have said, but I hope that she can at least see the logic of the Government’s position and perhaps, on reflection, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I think we want the same thing, but I confess that I do not understand how the Government have got here. The noble Earl did indeed quote the commissioner last time, but it seemed to me that that was on a different point. Perhaps I may check this. I think he is saying that the oversight through an NSD is equivalent to the oversight applied by PACE. I do not know whether he is able to answer that, but I am finding it difficult to understand how they are in fact exactly equivalent in the way that he is telling the House.
Earl Howe
The strict answer to the question put by the noble Baroness is that the two Acts provide for different kinds of retention regimes, one where it is automatic for three years under certain conditions and the other where the Biometrics Commissioner has to give his permission; namely, under PACE. The point I was making was that that applies in cases which are otherwise identical and that it is simply anomalous to have that difference. The Biometrics Commissioner has actually said that it would be,
“a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences in line”.
If he is relaxed about it, I cannot see that we should not be either.
Baroness Hamwee
I have the Official Report of when the noble Earl quoted that last time, and it seemed to me then that that was about the retention period, not quite about the role of the commissioner. I do not think that we are going to make further progress and at this time of night it would be inappropriate for me to labour the point. It may be my fault for failing to follow the details. As I say, I have had to go by way of Beachy Head to get to the amendment that I put down. I beg leave to withdraw it.