Trade Bill

Baroness Kennedy of Shaws Excerpts

Consideration of Commons amendments & Lords Hansard
Tuesday 23rd March 2021 Lords Chamber

[Lord Polak (Con)]

My Lords, I am pleased that this Bill will become law, because it is important for the welfare and prosperity of this country. I pay tribute to my noble friend Lord Grimstone, the Minister, because he has listened and understood. I am grateful, too, to the Foreign Secretary for the limited sanctions announcement yesterday. It is progress. I also agree with a number of noble Lords that the ad hoc committee comprised of former senior judges in your Lordships’ House is an excellent idea; I look forward to seeing it become a reality. As I said earlier, I pay tribute to the 29 so-called rebels in the other place; 29 Members who have shown their humanity and voted in support of the genocide amendments. It is also clear to me that many other honourable Members of my party would have voted the right way had whipping pressure not been exerted.

On 23 February, I referred to the festival of Purim and the role that Queen Esther played in saving the Jewish people from genocide. Fortunately, there are many festivals in the Jewish calendar: this weekend, we celebrate the festival of Passover and we recall that Moses, on behalf of God, appealed to Pharaoh to “let my people go”. My appeal is that the Uighur Muslims are free to go, and free to live their lives in peace and prosperity. That will clearly come about only if we continue to apply pressure, and I will continue to follow the lead of my friend, the noble Lord, Lord Alton, who has just celebrated his seventieth birthday. I wish him a happy birthday. It is a Jewish tradition to wish a person “many more years, up to 120”, which gives him another 50 years of great humanitarian leadership.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I want to mention “Catch-22”. Many noble Lords who are old enough will remember that this is a novel by Joseph Heller that was made into a film. The title refers to a certain rule whereby you might not be required to take part in war if you are mentally impaired, but if you say that you are mentally impaired, it shows that you are not really mentally impaired, so you cannot claim this particular way out. I think we are infected here with the same thinking. Catch-22 is a problem whereby the only solution is denied because there is a rule that cannot be fulfilled. That, of course, is what we keep hearing repeated by the Foreign Secretary and Ministers: that the proper place to determine whether genocide is taking place is a court of law, a competent court, but the problem is that there is no competent court able to do so.

I have mentioned this before, and the noble Lord, Lord Lansley, referred to it again: there is no competent court because using the International Court of Justice, which would normally determine whether a genocide was taking place, would involve one nation taking another nation before it. However, unfortunately, China has put in a reservation to the treaty establishing the court. A reservation is

“a declaration by a state made upon signing or ratifying a treaty that the state reserves the right not to abide by certain provisions of the treaty.”

So, the idea that China will say, “Yes, of course, take me to the International Court of Justice”, and not claim its reservation, is risible, as we all recognise.

The other international court that might be able to deal with a matter of genocide is the International Criminal Court. But, as distinct from the International Court of Justice—a nation-to-nation court—this is a court where individuals can be brought and held accountable for serious, egregious crimes against humanity, and indicted for genocide. However, as I said, it is individuals who are brought there. The treaty of Rome, which brought that court into existence, involved nations signing up to its jurisdiction; China did not sign up.

So, there is no international competent court to which China can be brought. Determining whether a genocide is taking place is beyond the capacity of the international courts. So what were we to do? That is why the different possibilities were presented by the noble Lord, Lord Alton, in amendments to this Bill, and supported by many in this House. The suggestion was: with our courts and competent, able judges—and with one of the great prides of Britain being our legal system and senior judiciary, admired throughout the world—who better than judges in one of our own courts to determine whether there was a genocide? The alternative when that proposal failed was to say, “Well, what about getting our most senior judges, who sit in this House in retirement, to come together, look to the evidence, measure it and decide whether it reaches the standard threshold, which is high, to determine whether a genocide is taking place?”

Unfortunately, we are left with very little. International law has acquired new teeth in the form of sanctions; I mentioned them in an earlier short debate. The fact that sanctions are now being used is to be welcomed. I would like to see our Foreign Secretary and Foreign Office at the forefront in persuading nations around the world to establish regimes to deal with international law in the same way: by creating sanctions regimes, as we, the United States, the European Union, Canada and other countries have done.

Many noble Lords know that I run the International Bar Association’s Human Rights Institute. We engaged with Japan, Australia and other countries and sought to have them join this union of democracies in creating a sanctions regime to deal with serious breaches of international human rights. We are making some progress, but it is a source of great regret to me that we have not decided to confront what the noble Lord, Lord Lansley, referred to as this dilemma, this serious problem, that we have no venue to which we can bring this serious allegation of genocide. By and large, therefore, China can get off scot-free.

We must have serious mechanisms for dealing with this. I hope that the Government are listening to the sensible and serious suggestions being made by the noble Lord, Lord Alton. They could take different forms, such as a Joint Committee of Parliament or a committee of our judges in this House established by this House. We have the power to make that happen. So, yes, we are seeing some advances being made but, really, they are very slow and very small.

Trade Bill

Baroness Kennedy of Shaws Excerpts

Consideration of Commons amendments
Tuesday 23rd February 2021 Lords Chamber

[Lord Shinkwin (Con)]

My Lords, it is a pleasure to follow my noble friend Lord Polak. Like him, I feel honoured to speak in support of the amendment in the name of the noble Lord, Lord Alton of Liverpool. I also pay particular tribute to the noble Lord, Lord Alton, for his resolve, persistence and most of all his humanity, because that is what this is ultimately about—our common humanity and common responsibility to bear witness to the values that underpin free democratic societies like ours. It is surely the responsibility of those who have power to stand up and protect the universal human rights of those who have absolutely none and who are victims of genocide—whether they be Uighurs, Rohingyas, or Yazidis.

As we have already heard, yesterday our Foreign Secretary gave a powerful speech to mark the UK’s return to the United Nations Human Rights Council following its re-election last October. As my noble friend Lord Alton told us, the Foreign Secretary described the situation in Xinjiang as “beyond the pale”. He is right to do so because if we want to be taken seriously by our global partners, including those whose agenda is to supplant our value system—especially democracy—then we need to deserve to be taken seriously.

That was yesterday; today, we have this fantastic opportunity to answer the Foreign Secretary’s call to arms and, by our deeds in the virtual Division Lobbies, to lend his words essential credence. This carefully crafted amendment enables us to do just that. Contrary to the impression given by the Government, time is of the essence—because genocide is not an academic question. If we want to stop and prevent genocide, we need to facilitate action now, today, by passing this amendment.

There is another reason why we should support the amendment. The Foreign Secretary highlighted in his speech that what is being perpetrated in Xinjiang is being done on an “industrial scale”. I wonder where we have heard that description before because, as any Holocaust survivor would remind us—as if that were necessary—we have been here before. It is astonishing, is it not, that we human beings have an amazing propensity to pretend that each generation is far too sophisticated to repeat the tragic mistakes of the past—yet, as the Holocaust survivor Primo Levi told the world, that is the best way of ensuring that we do repeat the tragic mistakes of the past.

As my noble friend Lord Blencathra said, there is another reason why we have been here before. Like him, I am also thinking of the infamous words of Neville Chamberlain during the Munich crisis in 1938, less than 100 years ago, when he referred dismissively—as we were reminded—to

“a quarrel in a far-away country, between people of whom we know nothing.”

In relation to the Rohingyas, the Yazidis or the Uighurs, are we really saying, in 2021, that appeasement pays and we simply do not care about the victims of genocide?

We should care a great deal. This amendment gives us the opportunity to look in the mirror: do we want to walk the walk and stand up for the values we profess to believe in, or do we encourage disrespect, cynicism and further genocides by only talking the talk? Is that what we want genocidal despots like Xi Jinping to think? This is the first test of global Britain’s commitment to freedom; let us not fail it. Let us pass this amendment and so enable the elected House to debate and vote on it.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, of course it is rare for this House to resist the opinion of the other place, and to do so again is deeply unusual—but there is a very good reason for doing so on this occasion, and we know what that reason is.

Certainly, on the last occasion in the other place, we saw a regrettable piece of sharp practice, which has been described by others, where the powers that be knitted together two amendments from this House, thereby diminishing the Commons vote. I am sure there was a great deal of back-slapping about who invented that wheeze, but it was unworthy on a subject as serious as this.

It is clear that there was, and remains, a huge clamour of voices, up and down this country and around other parts of the world, calling for this amendment to be passed—because it concerns an issue of profound moral obligation. We are signatories of the genocide convention and people of our word, and we are proud of this. It is worth remembering that we said, “Never again”.

My father’s generation, which is probably that of the fathers of virtually everybody in this House, fought in the Second World War, and he came home from war battle-worn and haunted by what was revealed when the gates of Auschwitz and other camps opened, having seen the evidence of the barbarity that had been perpetrated. He and others like him of our parents’ generation asked themselves thereafter about the horrors and whether they could have been prevented if there had been greater activity, in the 1930s and the years of the war, around what was taking place. Was there a point at which the Nazis could have been stopped in their hellish determination to extinguish a whole people? I wonder what my father would say now.

The genocide convention is about preventing atrocities, not waiting to count the bodies in mass graves to see if the tally is great enough—or waiting until the multiple crimes against humanity reach a level where, somehow, a bell rings. All the evidence received directing us to this most grievous of crimes points to genocide. You only have to hear the testimony of Uighur women, as I have, to register really deep alarm about them having children removed from them or being deracinated and stripped of their language, their culture, their religion and the family they love, placed in institutions a bit like borstals to whip them into line. You would also register alarm about them watching their husbands being taken off to forced labour camps or to disappear forever—and them being sterilised, prostituted and raped themselves. Their personal testimonies are so moving, and there is also the external photographic evidence of destroyed mosques and burial grounds. I have rehearsed that again —you have heard it before—because we must not forget what we are talking about here. The Uighur people are experiencing human degradation, torture and ways in which the human identity is taken from them.

I listened as others spoke about the courts, and I want to clarify some things for the House. Of course, the International Court of Justice is the court for the determination of serious crimes of genocide. There are two international courts that can potentially deal with genocide: the International Court of Justice is where plaints are laid by one nation against another, which is different from the International Criminal Court. The problem with the former—which is the traditional court where matters of this gravity would be dealt with, when a nation is conducting itself in this way—is that, after World War II, a small group of nations were given special status on the Security Council, and they have special powers and can exercise a veto. China is one of those powers, and we know that it would veto any plaint laid against it at the International Court of Justice. I will make it clear: that route to justice is therefore blocked.

The International Criminal Court should not be confused with that; it is where individuals are tried for grievous crimes, but the nation to which those individuals belong has to be a signatory to the Rome statute. China is not a signatory, so that route to justice is also blocked in relation to genocide. This turns us all into bystanders, and that is the problem.

When asked to declare a genocide, our Government says, “This is not a matter for Parliament; we can have debates and committees about it, but it is a matter for a competent court.” Of course, that means that we do not act at all; it is a recipe for inaction, which is why today’s debate and those that have gone before—as the noble Lord, Lord Glenarthur, has said—will come back if we do not decide today because most Members of Parliament, and many of the people up and country, feel that inaction in the face of genocide is not a position this nation can take.

We have very competent courts, and there are few courts more competent than our higher courts. Creating a procedure which lets a court determine whether there is sufficient evidence is the line that I would be arguing for today, but we are forced to present an alternative because we are meeting such resistance from government.

Trade Bill

Baroness Kennedy of Shaws Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 2nd February 2021 Lords Chamber

Amendment 3B in the name of my noble friend Lord Alton deserves support from all Conservative colleagues who believe in the executive authority of the Government, believe in free trade, and believe in having a moral foreign trading policy.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I join the noble Lord in paying tribute to the noble Lord, Lord Alton, who really is the moral conscience of this House and who reminds us so frequently of our role in making sure that we protect the most vulnerable in our world.

I declare immediately that I am a practising member of the English Bar and the director of the International Bar Association’s Human Rights Institute. The International Bar Association has been engaged with the issue of genocide for many years and it supports this amendment, as I do in my personal capacity as a Member of this House. The IBA has worked with organisations on this; in recent years I have worked closely with the United Nations Human Rights Council on the issue of genocide and certainly on the position of the Yazidis, and more recently with the World Uyghur Congress, which collates evidence on what is happening to the Uighur community in China.

I have seen much of the evidence and spoken with exiled Uighurs about their direct knowledge of serious crimes against humanity taking place back in China. The list has been set before your Lordships eloquently by the noble Lord, Lord Alton: the horror of internment in concentration camps and the torture, systematic rape and forced labour. We have listened to grieving mothers describe how their children were taken from them and put into “secure boarding schools”, as they are called, having their culture removed and their religious observance forbidden, and then all the other things your Lordships have heard about, including forced sterilisation. Modern technology has helped to supplement oral testimonies, so that we now have evidence coming from drones and satellites, and so on.

The list is long, and the evidence points towards a Chinese policy of genocide. However, the best form of analysis takes place in the best forum for the assessment of evidence: an independent court of law. The best forum to determine whether the high evidential bar for genocide is reached is a court of law, not a parliament. As this reconstituted amendment of the noble Lord, Lord Alton, has made clear, once a preliminary determination has been made by our High Court, using its best skills and the things that it comes into being to do, which is to analyse evidence and to look at the evidential thresholds, it will be for Parliament to decide how to make use of that determination with regard to bilateral trading relations. Therefore, on the concerns that were being expressed—I echo the noble Lord, Lord Forsyth, in saying this—about the constitutional principle and the fragile and careful way in which we have to protect the independence of the judiciary as distinct from the matters that should be dealt with by Parliament, the very way in which this amendment is devised means that it does that perfectly.

Some in the other place who opposed the amendment said that they had not left the European Union and the European Court of Justice to be told what to do by judges. That is not what is happening or what is contained in the amendment of the noble Lord, Lord Alton. Iain Duncan Smith, who was certainly up there leading the way on Brexit, has said very clearly that he wanted our judiciary to deal with matters of law concerning the people of this nation. It does concern the people of this nation. Along with the long list of the great and the good—the former Lord Chancellors: the noble and learned Lord, Lord Mackay, and my noble and learned friend Lord Falconer of Thoroton; the noble and learned Lord, Lord Hope, and the many distinguished lawyers, including the noble Lord, Lord Pannick, and so on, all of whom support this amendment—there are the many ordinary people who feel that we should not be trading. These are people who are not lawyers and are not tarred with the brush of being one of my community but who still feel very deeply about what is happening in China.

The noble Lord, Lord Alton, mentioned the distinguished and great international lawyer, Sir Geoffrey Nice, and he made the point that this amendment will save lives. We should be very clear about that. He posed the question: but for the defeat in war, would the Nazis have pressed on with their intention to destroy the Jewish people? They were stopped only by external intervention. It is for that reason that we should remember that Raphael Lemkin, the great lawyer who, through his relentless scholarship and lobbying basically brought the genocide convention into being and who drew on his own experience, having lost 40 members of his intimate family to the Nazi examination policies, realised that no law existed to prevent another Holocaust. That was why in the post-war years he worked relentlessly to have this convention come into being. He made the point that it was for the prevention of genocide—not to wait until it was over and then to wring our hands but to act when such an atrocity was in progress to prevent it reaching its horrifying conclusion. But we are being stymied because the system allows the big authoritarian nations to block the route to justice. They hold the trump card—the veto.

The convention is a construction of a particular time. It was created without envisaging, for example, that non-state actors could be perpetrators of genocide, which was one of the issues that was so difficult when we were dealing with ISIS and creating accountability for its genocidal intent in relation to the Yazidis in northern Iraq. The convention’s protocols also envisaged that the international courts would be the venue for establishing guilt of such an egregious crime as genocide. So it should be but, of course, as we have heard several times already, members of the UN Security Council block the cases and will continue to block cases going to the court by exercising the veto. China and Russia do not want nations to be held to account for genocide or indeed for serious crimes of inhumanity to man—and woman—as it comes too close to home and their own misconduct.

The genocide convention was created in 1948 at a different time, in a different era. Nothing concentrates the mind like world war and the horrors that were disclosed of Auschwitz and Treblinka. The urgency of that time can be forgotten if it is not kept alive, which is what last week’s Holocaust Memorial Day and the fact that the Jewish community has been so strong in its support of this amendment make clear to us. We are being held hostage by authoritarian regimes and we have to break their stranglehold on our use of international law and of the genocide convention and our obligations under it.

The Government claim that it is not for this House to overturn a decision of the other place. Of course, normally that would be true, but this House is the protector of constitutional matters, and I think it must address grievous abuses of human rights. We should take exceptional steps when we are dealing with something of this magnitude.

--- Later in debate ---

[The Deputy Speaker (Baroness Henig) (Lab)]

The following Members in the Chamber have indicated that they wish to speak: the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Hunt of Kings Heath, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Freyberg. I call the noble Baroness, Lady Kennedy.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I endorse what was said by my colleague on Labour’s Front Bench: standards define us. They reflect our values, and we in turn put them into our contractual relations and our law. It is vital that, in any urgency to acquire trade deals, we do not in any way lower those standards.

Trade Bill

Baroness Kennedy of Shaws Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I support this amendment, which has been brilliantly introduced by the noble Baroness, Lady Kidron, and we have heard some very strong and emotional speeches in favour of it. It is quite obvious that the internet is a most incredible thing. I cannot imagine what the past year would have been like—and, of course, this year and all years into the future—without the connectivity that the internet has given us when life could have been extremely lonely.

At the same time, the internet can be a very dangerous place because the dominant companies have the most incredible amount of power. This small but crucial amendment would go a long way towards protecting our children. With the USA, it is obviously even more important that we have these sorts of protections, not just because those companies think that anyone over 13 is not a child any more but because they have a strategic interest in disassembling regulations from other countries, which is to maintain their dominance in this area.

This Government like to use moral panic to justify all sorts of legislation—repressive legislation, I would call it—using censorship and spying to further their aims. They cannot have that in only one direction. The same logic must support this amendment, to protect children from the darkest corners of the internet.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I too support this revised amendment. Like everyone else, I pay tribute to the work of the noble Baroness, Lady Kidron, who is a true reforming pioneer. Her ground-breaking work both domestically and internationally in seeking protective regulation for children really goes before her. She has been combating the hugely damaging impact of social media on children’s lives and has been at the forefront in creating a code of standards for child-sensitive design in technology and so on. Here is an area where, because of her persuasive skills, the UK really is leading the world. I hope that it will continue to do so and be at the vanguard of protecting children.

There is increasing recognition of the addictive nature of social media; probably most of us suffer from it in relation to our constant need to check our emails and our inability to function without our iPhones, so we know the nature of this particular development. For young people at an important stage in their psychological development, the harm can have very long-term effects and be especially damaging. I sit on the human rights advisory council for one of the big American tech companies, and not one of the people who lead those companies would let their children have the kind of access to the internet that so many of our young have. They put restrictions on their children having phones; they do not allow them usually until they are well into their teens; they put limits on their app use once they are 15 and 16, and they demand a handover of the phone in the evenings after supper so that they do not take it to bed and stay up all night linked in to other people.

Trade Bill

Baroness Kennedy of Shaws Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

By sending this amendment to the House of Commons, where I know that it has support on both sides of the Chamber—notably from the former leader of the Conservative Party, Sir Iain Duncan Smith—I know that we will ensure that something good will come out of our debate tonight and out of the effort that so many noble Lords have put into this issue. It will give the other House a chance to engage and remedy any deficiencies in drafting. Tonight, we should not hesitate in affirming the principle that we will not trade with countries judged by our High Court to be mired in genocide. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, it is with great pride that I support this amendment. As the noble Lord, Lord Alton, has just said, he and I have been involved in discussions around this crime for some time, and we have engaged with some of our most senior lawyers and judges on how it can be addressed.

Genocide is the most serious crime in global law; for that reason, it stands apart and is distinct and singular. The term was first coined by Raphael Lemkin in 1944; he was a Polish Jewish lawyer who was undoubtedly absolutely bereft as he watched the horrors of the Holocaust and its atrocities unfold. He also drew on the history of previous instances in which entire nations or ethnic or religious peoples had been destroyed. His urgency was a new legal suggestion, and, although it was mentioned at the Nuremberg trials, it was mentioned in descriptive terms rather than as a legal term. It was immediately after the Second World War that genocide was coded as an independent crime under international law, in the 1948 Genocide Convention. That came into force on 12 January 1951; 12 January 2021 will be its 70th anniversary. Think how fine it would be for us to be a nation that had just put some teeth into the law against this most egregious of crimes.

The legal definition of genocide is precise and includes an element that is very hard to prove: intent to commit genocide. This is a very high bar and an evidential hurdle that is great; this is something of which those of us who practice law in this field are all too conscious. It involves efforts to exterminate and dehumanise a people—a whole set of people. You have already heard the horrors experienced by the Uighurs described in this House. I declare immediately that I co-chair the Inter-Parliamentary Alliance on China—IPAC—and, like the noble Lord, Lord Alton, I have travelled to the refugee camps where the Yazidis give accounts of the most horrifying events that have taken place to that people. Witnessing and knowing about the detail of genocide can only convince decent, good people that we have to try to find ways of making this a crime that has no place in this world.

The noble Lord, Lord Alton, explained the purposes of this amendment: the genocide amendment. Its purpose is to ensure that there is a preliminary determination by the High Court, not any lower court, as to whether there is genocide. It is pre-emptive: the whole purpose of the Genocide Convention was to prevent genocide by placing a duty on nations to act to prevent it. I will say immediately what this genocide amendment is not: it is not, to use the language of the noble Baroness, Lady Noakes, an effort to swamp the courts. The bar is so high that such a case could not possibly be brought before the High Court of this country and have any serious reception if it were not presented with a whole body of evidence that was highly persuasive and involved eminent lawyers who could testify to the bar having been passed on the definition of genocide.

What else is it not? It is certainly not a breach of the separation of powers—a constitutional issue—because, of course, no court will be determining that a trade agreement has to be revoked. It would be for the court to determine whether the bar had been met—that is, whether events documented a genocide that needed to be prevented. That preliminary determination of the courts would then, of course, have great import for any Government committed to human rights and their treaty obligations on genocide. One would expect any such Government then to revoke a trade agreement. All our trade agreements going forward would contain a clause indicating that, if there were a determination by the High Court, this would be the basis on which an agreement could be revoked.

The final thing that this is not is that it is not about determining the liability of individuals for criminal offences. That is not what the High Court would be doing in this case at all. Individual determinations of criminality would not be before the court and would not be determined by the court.

What does this amendment do? It creates new law; we are not pretending that this is not novel. It is, clearly and distinctly, something new. We have no doubt, given the interest shown in it by international lawyers from other nations, that it would be a great moment in the development of law—a role that Britain has often played. If passed into law, in time many other nations would follow suit. It is a way of giving teeth to international law. One of the questions we have always asked has been, how do you make international law have an impact? How do you get things before a court when we have a Security Council bound up with nations that will never agree to matters getting before certain courts? What we are seeking to do here is really to make a new development in law, which will undoubtedly be copied by other nations and signals the importance we attach to this crime above all crimes. We are going to see it on our statute books as a way of giving it pre-eminence in the world. I have no doubt that other states will replicate it.

I cannot bear the expression, “virtue signalling”. Yes, we will be signalling something about our values. We will be signalling that we will not stand by and do business and trade with countries that are destroying whole peoples. That is something we should be proud to be taking a stance on. Let us please extinguish that ghastly expression “virtue signalling” from the language, because we should be taking stances that show we can express our values and our virtues, without any snide grandstanding by onlookers who are not prepared to act.

I urge this House to vote for this amendment if the Government do not agree to it. I really want them to agree to it, because, as I say, genocide is a crime above all others and we should not demur in our commitment to seeing it end.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, it is a very great pleasure to support this amendment, following the excellent speech of the noble Lord, Lord Alton. He reminded us that this is not the first time we have discussed this matter. I took part in a debate with him on such an amendment back in March 2016, almost five years ago. The noble Lord has raised this issue on more than 300 occasions, ably supported, as he was back in March, by the noble Baroness, Lady Cox, for whom I have the most enormous admiration. At a time last week when, thanks to the First Minister, it was difficult for me to get beyond my garden gate, the noble Baroness was visiting yet another war zone. The whole House should be extremely proud of both the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, who is speaking later in this debate, and the indefatigable energy which they have shown in pursuing this cause. I therefore join with the noble Baroness, Lady Kennedy of the Shaws, and other noble Lords from across the House in supporting this amendment, in order to send a clear message once and for all that we as a nation will not be complicit in genocide.

This amendment introduces a mechanism to equip a competent court to make an interim determination of genocide. It provides for what is a novel, I accept, but crucial approach in effectively responding to genocide, especially as Governments of all shades have lamentably failed in their duty to respond as horrific genocides have unfolded. When we had the debate in March 2016, I spoke about the horrors facing Yazidis and Christian minorities—people who use the language of our saviour, of Christ himself—and we were unable to reach out and help them. I asked how much longer we were prepared to stand by and not acknowledge what was going on, which was a systematic attempt to destroy Christianity throughout the Middle East.

Continuity Trade Agreements: Parliamentary Scrutiny

Baroness Kennedy of Shaws Excerpts

Wednesday 18th November 2020 Lords Chamber

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I call the noble Baroness, Lady Kennedy of Cradley.

[Baroness Kennedy of The Shaws (Lab) [V]]

I am afraid it is in fact Lady Kennedy of The Shaws—there was a mistake in the listing. It is clear from many of our debates that the House does not want trade to be elevated above human rights. The noble Lord, Lord Alton, put his finger on the particular problems regarding China. The Government give the right rhetorical support on this, but it is difficult to have confidence when the Minister is on record as saying that

“everything in China gets associated with politics, but we have to look through politics to help get successful business with China”,

and that:

“The fact that Xi is prepared to give such strong authoritarian guidance within the context of a market economy is great for companies like mine


I am afraid that this does not give a lot of assurance to those of us who are concerned about the horrors taking place in China.

[Lord Grimstone of Boscobel (Con)]

My Lords, the noble Baroness refers to comments that I made in my previous life, when I was chairing a major business in China for the United Kingdom. It is important to realise the context within which those comments were made but, as I have said previously at this Dispatch Box, I have no patience with authoritarian regimes and I am completely in agreement with the Government’s policy in relation to China.

United Kingdom Internal Market Bill

Baroness Kennedy of Shaws Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

Let me join with others in welcoming new Members to this House. I hope that they will have as happy and fulfilling a time as I have had.

I wanted to express my respect and admiration for the noble and learned Lord, Lord Judge, and other noble Lords who have spoken up for the rule of law and our obligations under international law.

[Baroness Scott of Bybrook (Con)]

We cannot hear you. Can somebody please try to change the sound for you, and we will come back to you?

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

I am very sorry if people could not hear me. I hope noble Lords can hear me now.

I start by welcoming our new Members to the House. I also add my respect and admiration for the noble and learned Lord, Lord Judge, and all noble Lords who have spoken in support of the rule of law. I would have thought that all of us would be committed to it.

Some of our colleagues have mentioned our role as a revising and scrutinising House, but our role goes beyond that. Those of us who have the fortune to be in this House are stewards of the constitution. We are also the protectors of the rule of law. We are the people who guard rights and preserve for future generations the things that really sustain this society. We are also the people who are supposed to look at the long term when government may be pressed into or encouraged to think short term.

I urge this House to support the amendment from the noble and learned Lord, Lord Judge. I am a director of the International Bar Association as well as a practitioner at the English Bar, and I recently hosted two webinars on this very Bill. Thousands of lawyers attended not just from the United Kingdom but from around the world. One of the webinars was on the impact on international law, and another on the effects here in the United Kingdom.

The legal profession in this country is united in its opposition to the Bill—the Bar Council, the Law Society, the lawyers and judges. Let me tell you, it is a very small club indeed who think that this Bill does not contravene the rule of law. It seems to me to be following a regrettable trend of undermining law more generally. We are seeing attacks on lawyers and the judiciary, and an effort to undermine the judiciary and its discretion. We are also seeing attacks on judicial review and other aspects of law.

When the webinars took place, international lawyers, much to my surprise, engaged from all over the world, shocked at the fact that Britain was doing this. They said, “It’s to you that we look when we are having difficulties with our own Governments. It’s to you in the United Kingdom that we look as the standard bearer for the rule of law.” One of our distinguished commercial judges, recently retired, said that the City’s position as a world-leading financial services centre is underpinned by our reputation in law. That is not something to play around with, even if you are doing it for a pragmatic reason rather than out of principle. As one or two other noble Lords have said, this is a matter of principle, and I believe that principle at times has to take precedence over party loyalty.

In one of the webinars, the noble and learned Lord, Lord Neuberger, reminded us that we are asking a lot of our citizens in the United Kingdom at this time because of the pandemic. We are asking them to abide by certain rules that constrict their lives. We are asking them to obey the law. That our Government should be dismissive of law and be prepared to break the law at this time sends a very bad message. The Government should listen and remove the offending clauses and the whole of Part 5. I am afraid that to disregard the law is really a very poor prospect for this country.

Brexit: Consumer Protection (European Union Committee Report)

Baroness Kennedy of Shaws Excerpts

Wednesday 16th January 2019 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

To move that this House takes note of the Report from the European Union Committee Brexit: will consumers be protected? (9th Report, HL Paper 51).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, this report was prepared by the Justice Sub-Committee, which I chair, of the European Union Committee. I thank the members and staff of the committee for their support and hard work. It really is an incredibly stimulating committee that works incredibly hard.

The European Union Committee of this House has done sterling work across the board. Its sub-committees have produced 40 different reports, and we have contributed quite a number. The idea of those reports was to inform Parliament and the public about issues arising from the decision to leave the European Union. I know that they have been valued in some quarters, but in others they have fallen on deaf ears. At times, the Government’s responses have not treated them with the seriousness we would have liked.

The United Kingdom has been at the core of developing European Union consumer protections, pushing for high standards and strong rights to apply across the single market. We have been at the heart of this and sought that they be enforced throughout the European Union by a court order made in any member state. That means that if you have an issue with a faulty purchased item, you can get an order in your local court in Croydon, for example, and it will become enforceable across Europe. United Kingdom consumers have benefited from this strong regime of standards and redress. When making purchases in the UK, cross-border purchases or when visiting other EU countries for work or holidays, if something goes wrong there can be restitution, compensation or enforcement, as set out in our report. UK companies have said that they have benefited by being able to trade across the European Union with customers who can be confident that the system is consistent and dependable.

EU-wide consumer rights are based on cross-border co-operation between consumer protection organisations, and in the development of this area of law. We are fearful that this will be lost. The UK will be leaving that infrastructure, those mechanisms and those forms of co-operation, whether we have some cobbled together new deal or there is no deal.

Our inquiry, which reported in December 2017, looked into what might be lost by leaving those systems of co-operation, and asked what could be done in order for the UK to continue to participate. In this we were greatly assisted by evidence from consumer advisory bodies and regulators, which I would like to thank for sharing their expertise and advice.

On the one hand, many purchases by UK consumers are made in the UK, and the UK could decide to maintain high standards of consumer protection for domestic purchases; that goes without saying. Indeed, our report tentatively welcomed the EU withdrawal Bill—now an Act—as a means of mirroring in UK domestic law the individual consumer rights introduced by EU legislation, so we are at least able to welcome that formally into our own law.

On the other hand, there is great uncertainty about purchases made from the EU or made in the EU by UK-based consumers travelling in the remaining member states. Our witnesses told us of the loss to consumers, across all sectors of the economy, if the UK does not continue to participate in the EU co-operation mechanisms. They told us of the challenges of participating as a third country outside the EU. That is particularly true if the UK insists on being beyond the jurisdiction of the European Court of Justice, which was one of the red lines. The European Court is the final arbiter for interpreting the rules we have made together. Our report pointed out that the EU withdrawal Act,

“cannot ensure the protection of UK consumers’ rights when they visit the EU 27 post-withdrawal. Nor can it guarantee the UK’s continued access to the EU’s shared network of agencies, mechanisms and infrastructure that police, secure, develop and underpin consumer rights across the Single Market”.

So we are going to be outside of that body of agencies and mechanisms.

When we heard evidence from Margot James MP, the former Minister for Small Business, Consumers and Corporate Responsibility, she reiterated the Government’s aspiration for,

“a deep and special relationship with the EU post-Brexit”.

But she provided no detail on how to overcome the challenges we were describing to her, and in no way helped us to understand how we would participate in these consumer protection arrangements.

The Prime Minister’s deal gave us little comfort, and a no-deal outcome would tear up the rule book. So our report concluded that,

“it is important that the UK’s access to the European Union network should be maintained post-Brexit”,

but questioned whether the Government had given any thought to how they might address the problems. We called on the Government to produce a clear plan addressing these problems as a matter of urgency—how to be part of that infrastructure of agencies and mechanisms.

The Government’s response to our report, received in February 2018, was pretty pathetic. In his covering letter, the then Minister, Andrew Griffiths, thanked the committee for its interest in this “important area” and its,

“thoughtful analysis of the issues”.

He pledged that from the day the UK leaves the EU, the Government will remain,

“committed to maintaining high standards of consumer protection, delivering the stability and continuity consumers need to continue to make purchases”.

He added that in its negotiations with the EU 27, the Government’s objective was to retain,

“effective protections in place for consumers purchasing goods and services across borders”.

He expressed this as an intention that they would co-operate closely.

While the committee and the Government agree that the UK’s strong history of championing consumer rights can continue after we leave the EU, and while we agree on the benefits of cross-border co-operation, the Government’s response was vacuous. It lacked detail on how to address the significant issues at the heart of our report; it failed to address the loss of the reciprocal relationships, institutions and infrastructure that underpin and develop consumer protection policy; and it suggested no potential replacements for any of that, so it was really blather. We are hoping to hear something more solid from the Minister tonight.

The Minister who replied to us assured us that the Government had given “substantial thought” to these issues, had considered,

“in depth, a wide range of options”,

and was,

“continuing to undertake detailed work on this”.

That was a year ago. But the response did not engage in the detail of our concerns, nor with any of our proposed solutions. Either they were ignored or the Government gave vague aspirations but felt unable to share any detail, because these matters remained subject to the Brexit negotiations. We were told that it was all part of that great whispering thing—that they could not give anything away because they were negotiating.

Even on matters fully within the UK’s remit, the Government’s response to our report lacked a clear plan. For example, on the issue of increased pressure on national regulators, there was a vague aspiration to work closely with the Competition and Markets Authority,

“to ensure it is appropriately resourced for any new responsibilities after the UK leaves the EU”,

but there was no detail on those resources or responsibilities. Similarly, the Government maintained its view that the issue of increased pressure on trading standards bodies remains a matter for local authorities, stating that they must remain,

“responsible for their own finances and recruitment, and accountable to their local electorate”.

So it is all down to the local authorities, despite the fact that, as we all know, their central funding has been savagely cut, they are having difficulty funding most of the things they do and they are certainly likely to find this difficult to fund.

At the moment of receiving that response we had 13 months to go, so we lived in hope. In July 2018, our hopes soared: the Government published Command Paper 9593, setting out their “ambitious” plan for post-Brexit relations with the European Union. Three paragraphs of that paper dealt with consumer protection. The Government noted that the UK had a “strong track record” in protecting consumers and repeated their commitment to “maintaining high standards”. The paper concluded:

“There should be cooperation on enforcement, including provisions to allow mutual exchange of information and evidence, and a framework to work collectively”,


on wider consumer issues. But again, when there were eight months to go, there was hardly a detail included in that Command Paper on how this co-operation would be achieved. There was an absence of anything concrete; it was enough to make one weep.

In November last year, the withdrawal agreement and the political declaration were published and presented to Parliament, and the European Union Select Committee published its report on them on 5 December. As a result of yesterday’s vote, we are into uncharted constitutional waters but let us for now continue to consider that some kind of deal is still an option. Whatever is to be concocted in a new withdrawal agreement, one hopes it might mean that consumer protection will be involved. During the transition period, the UK would retain all the responsibilities of EU membership—such as conforming to EU law on consumer protection—but without the related institutional privileges; for example, membership of the EU’s institutions and agencies that set and enforce consumer protection rules.

However, Article 128 of the withdrawal agreement allows for the UK to be involved, to some extent, with EU initiatives and agencies. My questions for the Minister here are: what protections would UK consumers have under the arrangements in the withdrawal agreement? Will there be obligations on the UK relating to EU consumer protection rules? What would Article 128 mean in practice for the UK’s involvement in EU agencies? I would be delighted to hear a reply on these matters from the Minister. Can he also explain, with regard to the Irish backstop and the requirement that if it is used the UK will have to maintain a level playing field across a range of EU policies covering state aid and competition, why consumer protection was not included?

We all understand that the Prime Minister is going to go off and speak to other parties, possibly to find some kind of resolution with them which will make for greater numbers supporting a deal in the Commons. If there is a new or amended withdrawal agreement, we can assume that the political declaration will remain as it is, linked to that withdrawal agreement. I imagine that that might not in itself be changed. I want to ask about the political declaration because, as has been mentioned in other debates today, it is so full of aspiration and so lacking in anything solid.

The political declaration addresses consumer protections in, I suggest, an inadequate way. It deals with their relevance with regard to specific sectors of the economy, including financial services, digital matters, aviation and road transport. My questions are: what protections will the Government seek for UK consumers, including redress mechanisms through courts? What obligations would the Government be willing to have relating to EU consumer protection rules? What access will they seek to negotiate with the EU agencies that set and enforce the rules? British consumer organisations want to be party to those.

Finally, I turn to the rather ghastly prospect of the UK departing without a deal, which would be so detrimental to this whole area of consumer protections. We know already that the way to get a trade deal is to lower your standards; that is what places such as the United States of America will expect. All over the place, it will be expected that we will lower standards to secure trading deals. I am afraid that many of us are anxious as to whether we will go that far to cut the deals that might be necessary if our economy is suffering as a consequence of taking that dire step.

The Government argue that:

“UK consumers should not see any immediate differences in protection between UK law and that of EU Member States as UK and EU law is highly aligned”.


In that regard, we and the European Union may remain aligned for quite some time. However, the Government acknowledge our concerns about purchases in or from the EU, saying that,

“there may be an impact on the extent to which UK consumers are protected when buying goods and services in the remaining Member States”.

There is an admission that if there is no deal our protections are likely to be lowered.

I see that my time is up. The other question here is: what will we have to do about courts? Will UK traders and consumers have to go off and enforce judgments and have to go to courts in the other parts of the European Union, rather than seeking redress in our own courts? I would like to hear what the Minister has to say on that.

In conclusion, we find that consumer protections—which are vital and in which we have played a crucial part—should be a source of concern to us at this time, when we are talking about the possibility of no deal. Certainly, while we are in this process of putting together some sort of deal, if one can be achieved, this is an area where we should be sticking to our guns and trying to get something more solid than the vague aspirational commitments that stand. I beg to move.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I too thank everyone who took part in this debate. I assure the House that I have not paid handsomely for the tributes that have been paid to me. It is fair to say that our committee is a happy place because we all agree that hard work is best done if you can create a conducive atmosphere. We have very different, divergent views, but the committee’s spirit is to listen and we contribute in a spirit of collaboration. That is one thing that we know: collaborating produces good outcomes. We might miss that when we leave the European Union.

I will reiterate something said by others. We have a very good secretariat in this committee. We could not do this work without them. One of them is here tonight: Alex Horne, who is a really formidable lawyer. He and his colleague, Tim Mitchell, provide us with incredibly fine lawyerly advice. Others on the secretariat serve the committee very well.

The noble Lord, Lord Bilimoria, said something very important: “Now we know”. In many ways that should be the strapline for what has happened over the two and half years since the referendum. Many of the things that are the subsoil of our relationship with the rest of Europe were not known to all of us. On this committee I have learned hugely about the collaboration and co-operation, about the ways we, the British, have contributed to a good and energetic Union. Out of that come positive things which make the world a better place.

That is something we should be saying. We did not say it hard enough in the years when we were in the European Union, and it is regrettable that at this late stage we are having to communicate to each other the incredible benefits that have come by working together. Now we know. If only we could get that out to the general public and to some of the people who so vociferously argue against the Union. I thank everyone. I beg to move.

Motion agreed.