Sanctions (EU Exit) (Miscellaneous Amendments) (No. 2) Regulations 2022

Viscount Waverley Excerpts

Monday 17th October 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, I rise briefly to intervene in this debate on the point which the Minister helpfully set out in his opening remarks, one of the two issues raised by the Joint Committee on Statutory Instruments. This instrument amends the Burundi (Sanctions) (EU Exit) Regulations 2019 but, according to the legislation.gov.uk website—the definitive source—those regulations were revoked by the Burundi (Sanctions) Regulations 2021. Commercial websites on UK legislation also refer to the 2019 regulations having been revoked. That would make today’s proceedings a little odd, because we would be amending something that was no longer law.

However, this is not the case. As the department explained in its memorandum to the Joint Committee, although the revoking SI was debated in 2021, it was not approved by both Houses of Parliament within the required 28 days. Therefore, under the terms of the Sanctions and Anti-Money Laundering Act 2018, as a “made affirmative” instrument, it expired. The Joint Committee agrees with the department’s view that the original regulations have not been revoked and can therefore be amended tonight.

I raise this matter because it is important that affected citizens and businesses, and their lawyers, can establish with clarity what the law is or was at a relevant time. In this instance, the only sources to which you could have turned to find out—not only government but commercial sites—had got it wrong. I raise it as a warning of the pitfalls of complex legislation by statutory instrument—of which we have a lot coming down the track—and the need to be absolutely clear about what is and is not law in force. The committee has written to the hard-working team at the National Archives to ensure that the matter is put right there. The committee’s advisers should be commended for identifying it. It is important that we get these things right.

Not on behalf of the committee in any way, perhaps I could also raise the question that the Minister touched on: what is the Government’s current view of the relevance, purpose and desirability of sanctions against Burundi?

[Viscount Waverley (CB)]

My Lords, I apologise if this is Burundi-specific. I would like to address to the Minister a particular point that has been drawn to my attention. He spoke about the economic crime Act and loopholes. Some people from overseas register a company, open a bank account through lawyers and then, when everything is in place, there is a transfer of shares to a party, which rather defeats the object of the exercise. I am sure that the Minister does not wish to go into detail about this today. However, would he care to reflect and pass on to his officials that, in the spirit of the economic crime Act, they might wish to address that situation?

[Baroness Kramer (LD)]

My Lords, I point out that I am speaking as a winding-up speaker, just in case there is anyone else who is interested in speaking from the Back Benches.

The Minister has explained that this statutory instrument brings into the sanctions orbit both crypto asset exchanges and custodian wallet providers. We agree that that is necessary, but I would like to get some clarity from the Minister. Very few crypto asset exchanges are actually located in the UK—I was struggling to think of one. Some of the most popular, such as Binance, are registered in British Overseas Territories. Just to continue the example, Binance is one of the major exchanges and is registered in the Cayman Islands. What impact does this SI have on the regulation of these exchanges and wallet custodians? To stay with the Binance example, that organisation claims that it does not have the authority to sanction or freeze all Russian users’ assets, leaving the expectation that sanctioned individuals are freely using it under assumed or friendly names.

I would also ask how adequate resources are to make regulation and enforcement effective. As the Minister is aware, the FCA is underresourced and, frankly, demoralised. It does from time to time act against small organisations, which would seem to include misbehaving crypto exchanges, and I think that the crypto group in the FCA is actually one of its stronger sections. But the complexity and global nature of crypto makes it very tricky to supervise. The National Crime Agency has only 118 staff to cover all of the powerful and complex world of finance. Would the Minister consider giving the FCA and the NCA a share in the fines and confiscations from successful prosecutions, in order to build their capacity? Will further legislation come forward, despite the Conservative mantra of “deregulate, deregulate”, to deal with the dark side of the crypto industry, which has a real mix of responsible players and sheer anarchists, which obviously is an avenue for running sanctions that makes no use of the respectable exchanges and wallet custodians?

Will the Government also go after the enablers—the lawyers, accountants, property developers and others who facilitate sanctions-busting through a variety of routes? In a sense, I am picking up the point from the noble Viscount, Lord Waverley; he described one such route. These firms are a major part of the infrastructure of what is widely known, unfortunately, as the London laundromat. Would the Minister agree that we need a “failure to prevent” sanction to put genuine pressure on and change the behaviour of these enablers?

This statutory instrument—and this is true for upcoming legislation—still fails to give proper protection to whistleblowers or to champion follow-up on their disclosures, even though they are crucial to exposing wrongdoing, particularly in the areas of sanctions-busting, which crosses complex borders and is very hard to track through conventional routes used by regulators or enforcement agencies. This SI once again fails to include as whistleblowers the wide range of people who speak out, and it continues the limitation of the definition of whistleblowers to employees.

This statutory instrument gives confidentiality to disclosures made by employees to proscribed organisations; it lists a long list of proscribed organisations among its various regulations. But this kind of confidentiality is frequently useless. The identity of many whistleblowers is hard to hide, particularly when dealing with kleptocrats, oligarchs and authoritarian states, which, frankly, use all kinds of aggressive means to find the identity of those who have exposed them.

Under the current law, recourse for a whistleblower, who is at risk of retaliation, is to an employment tribunal. That hardly seems meaningful protection to someone whose income, family and life, very likely, are on the line. The Minister will be aware from his portfolio that far too many whistleblowing reports remain anonymous because people are terrified. The regulator then uses the fact that the report is anonymous, and therefore it cannot ask more questions of whoever has been doing the reporting, as an excuse not to follow up on the information that has been provided. Frankly, we have a very sorry track record in acting against these entities. The advice that has been given by so many in this field is, if you can, go to the Americans, because they will be fierce and they will act. That is a very sad story to tell.

I have a Private Member’s Bill that would create an office of the whistleblower to be a proper champion. It is an updated version of the Bill promoted by a Conservative MP, Mary Robinson, who chairs the APPG on whistleblowing, so I assure the Minister that there is no party-political issue here. In light of the Minister’s concern over sanctions and in catching people who bust sanctions, will he give us his support?

Horn of Africa: Famine

Viscount Waverley Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I have spoken regularly to representatives of the Climate Vulnerable Forum, and they make a very strong argument on loss and damage. They would probably agree that it is because of our presidency of COP 26 that loss and damage now has a chapter within the annual COPs where that can be discussed. It will be for the donor countries at COP 27 to determine how far they want to go, but the UK’s position is that the arguments are very strong, we will maintain our commitment to £11.6 billion for international climate finance, and are doing everything we can to encourage other countries to step up as well.

[Viscount Waverley (CB)]

Although I agree with the Minister that the bolstering of humanitarian aid is critical and essential, does he accept that the mantra of poverty alleviation should be to achieve more with less? With that innovation, much more can be done to assist peoples around the world. How might that be achieved, and might not the private sector play a critical part in that process?

[Lord Goldsmith of Richmond Park (Con)]

The noble Viscount is absolutely right. There is no way these problems can be solved through ODA or other aid alone; it is just not possible. That is why the UK has taken an innovative approach to trade, for example. I believe that 65 poorer countries now enjoy simpler, cleaner trade access to the UK than they had before. In many respects, in many of those countries, that is worth more than they could ever expect to receive in aid. That is just one example of what the UK is trying to do to leverage our position to deliver more than just 0.5% or, I hope soon, 0.7%.

Sri Lanka

Viscount Waverley Excerpts

Wednesday 13th July 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

On the noble Lord’s first observation, he is of course absolutely right. As with a number of other countries, Chinese infrastructure support—economic support—in Sri Lanka has in itself had a quite disabling effect on its economy. Regarding the noble Lord’s second question, I am certainly not aware of any specific engagement or involvement of that nature.

[Viscount Waverley (CB)]

My Lords, can the Minister give any insight into the extent to which the Armed Forces will be providing support and ensuring security on the island, as requested by the Prime Minister?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we have not looked at that specifically. What we have said, as I have already indicated, is that our focus is and must be first and foremost on the humanitarian situation. As I have said in previous answers to the noble Lord, Lord Purvis, and the noble Lord, Lord Collins, if at all possible that includes where, how and to what extent we can channel humanitarian support bilaterally, particularly food. Equally, the next important element should be political and economic stability, and that is what the Government are focused on.

NATO Accession: Sweden and Finland

Viscount Waverley Excerpts

Thursday 7th July 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with the noble Lord on his first point on the border issue. Any country bordering Russia has concerns at the moment—I visited Estonia, which is part and parcel of NATO but, notwithstanding that, it has concerns. Indeed, to broaden that point, there are other countries, and the noble Lord will know of the key votes taken at the UN when this war was first initiated. We saw strong support—a vote of 141—but also a series of abstentions. However, some of those abstentions were what I would term qualified abstentions. There are many countries on the borders of Russia that are concerned, and they have their own Russian-speaking minorities. On the issue of defence spending, I hear the insight and expertise that the noble Lord provides in this regard and I will certainly share that with my colleagues at the Ministry of Defence. I agree with him on the principle that we need our defence forces to be fully aligned to the challenges of 2022 and also to play a bolstered leadership role within the alliances that we are part of—NATO is a central one.

[Viscount Waverley (CB)]

My Lords, it is right that we start referring to the Arctic and relating matters. The accession of Finland and Sweden into NATO draws into stark reality the whole situation regarding the Arctic, but also brings in the question of China, which has a vested interest in what goes on in that part of the world. The Statement went beyond just Finland and Sweden; is the Minister able to shed light on the rationale behind the leaders also agreeing NATO’s strategic concept, which addresses China and its systematic challenges to collective security? Is it to suggest that, for the very same reasons that Finland and Sweden are in accession mode, Taiwan might eventually apply? That would then secure and provide scope for a collective defence, should China opt to invade the island. This would of course also bring into play the relationship with AUKUS.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the issue of Taiwan is slightly different in the sense of its geographical location, but the Government’s position on Taiwan has not changed: whatever approach is taken, it is a matter for both sides on the Taiwan Strait. The noble Lord talked about the mention within the Statement of the strategic concept and how it “addresses China”—for the first time—

“and the systemic challenges to our collective security that it poses.”

I have already alluded to the work that China does to strengthen not just its military presence but its economic presence. This results in, and eventually leads to, economic dependency, which we are seeing around the world. We are also increasingly seeing evolving threats. As much as technology is an opportunity, it is an evolving threat as well. Therefore, through organisations such as NATO, but also through the United Kingdom working with other key strategic partners, including those in the Asia-Pacific, we need to look at enhanced protection, for example, when it comes to cyber security. Within the context of the Commonwealth, for example, we are working with key partners, such as Singapore.

Prime Minister’s Meeting with Alexander Lebedev

Viscount Waverley Excerpts

Thursday 7th July 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

As the noble Lord will know from his own detailed experience and insights on national security matters, all agencies take a very robust attitude in terms of ensuring full scrutiny. As I have already said, the Prime Minister will write to the Liaison Committee on the broader issues that the noble Lord has raised. I am sure the noble Lord will also realise from his own experience of being a very senior Minister that, yes, there are rules and obligations that we as Ministers have to adhere to. I mentioned previously the issue of integrity, and it is for all of us, whether we are Ministers, or in your Lordships’ House or in the other place, to uphold them—and equally, where there are meetings which take place, that they are minuted or documented to allow for an assessment of records. Let us await the response from my right honourable friend, and I am sure there will be details provided in that.

[Viscount Waverley (CB)]

My Lords, does this call into account the whole question of the use of private phones by Ministers in meetings, and in other matters of official import? Could it be assured that the questions asked today are added to the questions put to the Liaison Committee, and the appropriate people are encouraged to respond accordingly?

[Lord Ahmad of Wimbledon (Con)]

On the noble Lord’s second point, of course there were questions asked directly of the Prime Minister, and I am sure Hansard will be read, and officials will feed back also on the discussions we have had. On the point on the use of devices, be they personal or official, I can speak from experience that, whenever you travel to particular parts of the world, in terms of the IT you carry there are quite robust procedures deployed by officials at the FCDO, which ensure that whatever checks and balances need to be done for security and protecting the integrity of what is contained within the equipment, it is also safeguarded.

Nigeria

Viscount Waverley Excerpts

Tuesday 5th July 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the right reverend Prelate for his kind remarks. In terms of the UN Security Council, it depends very much on who is chairing a particular session during a given month of presidency. The issue of religious freedom is high up the United Kingdom’s agenda, and I will certainly take on board his suggestions when it comes to Nigeria, and indeed other countries.

[Viscount Waverley (CB)]

My Lords, will the Minister note the extraordinary influence of Africa’s traditional rulers? One could cite the Ooni of Ife and the close friendship he had with the Emir of Kano, which encapsulates peace in the land of Nigeria.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the history of Nigeria, and indeed other parts of Africa, is important in determining how different communities and tribal loyalties also play into the unity of a given country. As we are attempting to do at this conference, it is important to bring together civil society leaders with decision-makers to ensure that, as we help and construct an important, bright and inclusive future for religious freedom, we talk to the people who are directly impacted.

Tigray

Viscount Waverley Excerpts

Monday 4th July 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord makes a very valid proposal and I assure him that in our engagement with Kenya the importance of the situation in Ethiopia is part and parcel of our discussions. I think there will be a change of leadership very shortly in Kenya, with President Kenyatta stepping down. But it is equally important that we engage proactively to ensure that whoever then goes on to lead Kenya is fully engaged in finding a solution to this process.

[Viscount Waverley (CB)]

My Lords, the question of arms sales has been raised. Does the Minister accept that consistency by the United Kingdom on the provision of licences for arms sales around the world would be extremely helpful, rather than the current inconsistent way in which such issues are addressed? Does he concur that peace in this troubled region would be enhanced by sustained and unhindered humanitarian access, the restoration of internet and banking services, and bringing to an end youth conscription throughout the region, all of which would be most welcome?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second suggestion, I have already alluded to the fact that some of the very points the noble Lord has raised are being discussed directly, and one hopes that the outcomes of these discussions—as and when they take place—will see a real focus on the priorities that he has articulated. On arms sales, I have to disagree; as I said, we have a process that we seek to follow in every negotiation and discussion we have. Of course, there are always learnings to improve that process and we adapt those accordingly.

Ukraine: Defence Relationships

Viscount Waverley Excerpts

Thursday 9th June 2022 Lords Chamber

[Viscount Waverley (CB)]

My Lords, the broad conclusions of the more general integrated review were correct, but reference should also be made to the defence Command Paper. I propose to the Government that both be updated regularly to reflect changes in circumstances.

I am concerned that this war of attrition masks the fact that Ukraine, from Russia's perspective, is a means to an end and not a strategy in isolation, representing an attempt to craft a new world order with a reconstruction of its role in international affairs. Events are the consequences of 20 years of strategic thinking on Russia’s part. It follows, therefore, that the Euro-Atlantic community should frame a Russia strategy in the longer term, and not as a problem of the last century, looking forward not backwards, with all its future implications.

Russia has returned to its traditional role of an aggressive, expansionist state, and an effective response to this remains to be shaped. A senior British defence official said in 2016:

“Russia is a reality on the world scene and we cannot go on pretending it is not”.


That is correct, with all the opposing ideology, interests and explicitly differing values. A new generation of Russian leaders will change little. We must work to understand more than I suspect we do or face sleepwalking deeper into the quagmire.

The scale of the reconstruction required defies comprehension, with President Zelensky estimating in April that $7 billion monthly, totalling $600 billion, is required. From where is this to come and with what conditionality? A future Ukrainian state awash with money and flooded with arms could itself become a challenge.

HMG will be only too aware also that democratic politics can usher in a new guard. With elections supposedly due in a year or so, there will be many from a military background who will enter politics and, depending on outcomes, bring with them a differing approach. I must ask the Minister, therefore, what HMG’s assessment of that situation is. Are election assistance and process planning being conducted, or are we in active consultation with the electoral commission in Kyiv about a delay to a future election?

On the world stage, it would appear that Russia is hell-bent on building an Iran-China-India axis, in addition to quietly making inroads on relationship building in South America and Africa, with the Indo-Pacific also in its strategic planning. I have been calling around, and it has become clear that a large number of states wish to remain neutral, which is not good.

A vision of Russia would appear to be multiregional, now strengthened by the Arctic route becoming more realistic. That will be of particular appeal to China, which is already investing in securing land for its future infrastructure and military needs along that route.

London is acting in important ways in Ukraine, but very much in the now. Now and looking ahead are essential, and in this context the integrated review is right: Moscow will be a challenge for London through the 2020s. The UK has positioned itself as Moscow’s enemy 1.5, with our strategists having to manoeuvre through a minefield of British policy and determine how global Britain will manage a ubiquitous Russia. It is legitimate to ask what kind of threat Russia might pose to the UK. Moscow has not yet used its strategic assets in this war, but we should be prepared for an intensified cyberthreat.

On a practical note, I am reminded of the loss of the depth of expertise in the FCDO on Russia and the Russian language. We urgently need to build a cadre of Ukrainian expertise and language capability.

In the search for common ground with Russia, while always being explicit that London has very many policy and value disagreements with Moscow and vice versa, urbanisation, climate change, infrastructure, and issues of the 2030s, including how to manage ageing social disruption, might be areas of commonality of challenges.

The war in Ukraine has reignited great power competition. If we are ever to move forward, the institutions that govern the world order must adapt to new ways of thinking and new ways of working.

Russia (Sanctions) (EU Exit) (Amendment) (No. 9) Regulations 2022

Viscount Waverley Excerpts

Monday 23rd May 2022 Grand Committee

[Viscount Waverley (CB)]

My Lords, the noble Lord, Lord Rooker, has just raised an interesting point. Adding to the Channel Islands and the Isle of Man, it is conceivable that maybe the overseas territories ought to be in someone’s sights as well. That may be a point for consideration by the Minister.

The noble Lord, Lord Purvis, made a very good point about VPNs. In Russia they use them as a means to get information about what is going on around and about, so that is also helpful. For the record, I have ensured that the global website I have, covering every country in the world, has no content in relation to Russia.

[Lord Collins of Highbury (Lab)]

My Lords, I start by saying once again that we are absolutely at one with the Government on their sanctions in relation to holding Putin and his Government to account for their outrageous violation of international law. It breaks multiple treaties and commitments, including the fundamental principles of the UN charter, and it is rightly condemned by all nations. I do not think there can be any space for equivocation when we are faced with this evil that Putin has unleashed.

In relation to these specific sanctions, at lunchtime I had the opportunity to hear from Dame Barbara Woodward, the UK’s representative in New York, in the UN APPG. She highlighted a number of things, and of course the briefing somewhat followed Chatham House rules, but she is absolutely clear on the threat posed by Russia’s campaign of misinformation. It is not only the usual propaganda stuff but things such as this accusation that there are chemical weapons in Ukraine, holding the UN down and deliberately spreading those sorts of stories. That sort of misinformation campaign goes well beyond the propaganda we have seen.

Putin is desperate to silence the truth about his invasion from his own people and the world and is pushing that information out. It is absolutely right that the international community considers how best to curtail this, and therefore the regulations before us are very much a welcome tool. The exact sanctions in relation to online services include blocking certain URLs, ensuring that platforms take precautions over the content they publish and taking steps so that the application stores do not allow certain software to be downloaded. They also allow the Secretary of State to designate persons to whom these online restrictions will apply and give new powers for Ofcom to impose penalties. Each of these provisions is a welcome step in the right direction.

I just want to pick up a couple of points, particularly the point made by my noble friend Lord Rooker on the role of Ofcom. Can the Minister explain whether any further resources have been allocated for it to carry out these new responsibilities? Have any fines yet been issued? Liaising with other departments, such as GCHQ, will be vital to its ability to carry out these responsibilities.

As the noble Lord, Lord Purvis, said, co-ordination with international allies is vital on these issues as well as others. I would be grateful if the Minister told us what engagement there has been with counterparts on these new powers to ensure that such action is replicated everywhere. Also, what steps are the Foreign Office and other departments taking to work with platforms to ensure the closure of any loopholes that may emerge in respect of disinformation campaigns which may seek to work around these new regulations?

A number of noble Lords have asked about Crown dependencies and overseas territories. Every time we have dealt with such statutory instruments, the Minister has assured us that they do and will apply, and that the department is liaising with both the British Overseas Territories and the Crown dependencies to ensure that. However, we need not only that reassurance but to know that there is constant contact with those territories to ensure that, where difficulties emerge, we can respond to them properly.

The noble Lord, Lord Purvis, raised an issue that I was going to raise: the Minister’s assertion that we are in lock-step with our allies. Sadly, that does not always seem to be the case. As the noble Lord said, the latest example of that is our failure to follow Ottawa’s lead, which is extremely worrying, particularly when it comes to the individual the noble Lord mentioned. Alexander Lebedev not only is a former KGB agent but has business interests in the media, particularly the UK media. Of course, he bought the UK’s Evening Standard and Independent newspapers. Ottawa announced these sanctions on Friday, and there was no response. I know the Minister will repeat the mantra that he will not comment on future designations, but that is not the issue here. We need to hear from the Government that they will seek to work in lock-step with our allies. The questions that noble Lords have raised concern not only making effective the sanctions that we impose, and therefore want allies to replicate, but allies imposing sanctions and us becoming the loophole or escape route for some of these individuals. Apart from the mantra that he will not comment on future designations, I want to hear from the Minister that we will ensure that, where our allies impose sanctions, they are effective and that we will do nothing to undermine their ability to hold Putin to account.

[Viscount Waverley (CB)]

On loopholes, in June the St Petersburg International Economic Forum will take place, and it will involve many organisations from around the world. I understand that its mantra will be, “New markets, new opportunities”. I also understand that some 60 or 70 organisations can in one part or another be semi-designated as associated with the United Kingdom, and the intention is that that be used to show that the UK is in play in matters relating to internal Russian trading issues.

[Lord Collins of Highbury (Lab)]

The noble Viscount is absolutely right. The real issue here, on our policy of ensuring that Putin cannot act with impunity, is that this Government act with one voice and that all departments—be it the FCDO, the Home Office or the Department for International Trade—act in concert. I hope the Minister can respond to that point.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for responding. I question two aspects. One regards VPNs. I understand entirely the point the Minister made, which is sensible, but he will be aware that, as I mentioned, although we do not seek to extend the criminalisation to users, there seems to be evidence, with the increase in traffic, that designated persons under our law will be able legally to upload information to providers in another country where a VPN user would be able to designate and have free access to anything from RT or Sputnik. My question was about the companies that offer VPN services, not the users; I would be happy for the Minister to write to me on that point.

My second point regards working with Canada. The points that the noble Lord, Lord Collins, and I raised are significant. Alexander Lebedev is now a Schedule 1 person under the Canadian Special Economic Measures Act. This means that, under Canadian law, it is an offence for anybody to provide financial or related services to, or for the benefit of, that designated person. I want to know whether this means that any family member of Alexander Lebedev who provides any financial interactions with him will not be breaking UK law but will be against the spirit of the Canadian law. That is of great significance for our relationship with Canada.

[Viscount Waverley (CB)]

My Lords, I will just take this opportunity briefly to address VPNs. VPNs are a two-way street: a VPN can also enable information from outside Russia to get into Russia to enable those Russians who wish to understand what on earth is going on better to do so. That may be somewhere in the mix, but this is a rhetorical question; the Minister does not need to respond.

[Lord Ahmad of Wimbledon (Con)]

The noble Viscount partly answered my point on VPNs. He is quite right that they are used as an important tool and we are working with key organisations on this. What is very different with the BBC World Service, for example, is that it reports independently of government and autonomously. However, the use of VPNs has a benefit. That is why I suggested to the noble Lord, Lord Purvis, that we could perhaps meet to address some of these issues.

As to the noble Lord’s other question, I have gone as far as I can at this time. Our responsibility is for what applies in the United Kingdom. In the designations we have made we have acted to ensure that, where we identify family members who may be involved—in this case we looked directly at the family members of Mr Putin, for example—they are individuals who we look at very closely and designate as appropriate. As I said, we continue to look at all situations concerning individuals and organisations, and will keep this under review. We are also mindful of the actions our allies are taking. With that, I once again thank noble Lords for their contributions and their continued support of the Government’s position.

Working Practices (International Agreements Committee Report)

Viscount Waverley Excerpts

Thursday 19th May 2022 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I wholeheartedly congratulate the committee and all its members, led by the noble Baroness, Lady Hayter. By coincidence, I had the pleasure to have spoken alongside the impressive UK director-general for trade negotiations in the Department for International Trade, Amanda Brooks, this week at an Institute of Directors dinner, on scrutiny of FTAs and the need to rebalance the relationship between Parliament and the Executive. To say she was a master of her brief would be frankly understated.

My contribution will focus on the narrow remarks regarding governance. Trade today impacts all walks of life. The 2018 document A Trade Model That Works for Everyone set out four principles of best practice: consensus building, transparency, democratic oversight and net benefit for all. These four principles provide the foundations on which to build public trust in the trade system. Credit where credit is due, however: the Government have come a long way since the publishing of that document and have negotiated some good deals—with Singapore and New Zealand to name two. For example, I have been asked to meet Beef + Lamb New Zealand, which, I gather, welcomes the agreement, and it looks forward to the opportunities for British farmers to export, as well as sharing best practice in areas such as marketing products abroad, animal welfare and sustainable farming.

There are various models of treaty scrutiny in other countries, which the UK Parliament could benefit from understanding. These can be divided into models of parliamentary scrutiny, transparency and civil society consultation. The UK’s scrutiny process does not tick all the boxes compared to key partners, with the EU coming out on top, followed by the US a more distant second. Considering the evidence provided, the All-Party Parliamentary Group for Trade and Investment, which I co-chair, offered recommendations to government to build on and improve what is in place and included a broad range of views from business, academia and civil society. I shall say a word on three aspects: transparency, democratic oversight and net benefit for all.

First, on transparency, securing trade deals should take place with stakeholder consultation throughout the process, thus allowing all voices to be better reflected throughout key stages of negotiations. There should be a statutory obligation on government to publish all key documentation relating to international trade and easy digital access to those documents. The use of non-disclosure agreements with members of trade advisory groups has limited the ability of experts to advise properly. The need for use of NDAs needs to be balanced with common sense and trust to allow those advising government, having been vetted, to be properly briefed and the constituencies they represent properly consulted. It is felt that NDAs highlight a deeper problem: a lack of trust in business.

Secondly, there is democratic oversight. Parliamentarians, too, are in the dark until it is too late in the process to make a difference. Parliament should be provided with a statutory right to debate the draft mandate in advance of any proposed negotiation. In line with the approach taken by the EU and US, government should have a statutory duty to provide timely, substantive briefings, draft texts and related documents to all MPs and Peers. Government should publish treaty texts before the treaty is tabled in Parliament, thus allowing for proper scrutiny and examination. Parliament should have the final ratification in a timely manner on trade deals proposed, negotiated and agreed by government.

Thirdly, there is net benefit for all. Government should be under a statutory obligation to publish detailed impact assessments which evaluate the economic, environmental and social impacts of any proposed agreement, including a clear statement of the net benefit of any proposed trade deal.

Based on these principles, 10 recommendations might be considered: first, build a strong mandate underpinned by business engagement; secondly, secure comprehensive buy-in for the negotiations by publishing mandates; thirdly, set up a high-level strategic EU trade advisory group for the EU negotiations; fourthly, establish a series of thematic working groups to tackle cross-cutting issues; fifthly, expand the remit of DIT’s expert trade advisory groups to create a series of sector trade advisory groups to provide detailed technical advice for specific sector negotiations for EU and non-EU trade; sixthly, appoint a new chief business trade envoy to co-ordinate the gathering of business intelligence, ensure coherence of policy and provide businesses with a single point of contact; seventhly, take business delegations to negotiating rounds to strengthen the UK’s presence and give negotiators easy access to technical expertise; eighthly, publish proactively the membership of advisory groups; ninthly, release summaries of negotiating rounds as they are completed; and 10thly and lastly, use non-disclosure agreements only when essential.

As the noble Baroness, Lady Hayter, touched on, devolved Administrations ought to be able to co-determine the negotiating mandate in areas of devolved competency enshrined in law as part of a new constitutional settlement. An interparliamentary mechanism should be created to involve devolved legislatures in treaty scrutiny.

In summary, government should be required to ensure that Parliament is immediately and fully informed at all stages and provided that information in sufficient time to take Parliament’s views into account—a point put most admirably by the noble Baroness, Lady Liddell. Government should disclose negotiating mandates immediately after their adoption and publish final trade agreements texts in advance of the legal revision being completed. To further facilitate this, MPs should be provided with access to restricted documents, including negotiating texts, in a secure reading room with a list published of those being consulted. I note that the WTO, for example, publishes submissions made by member states during negotiations. After the negotiations, Parliament must, of course, approve the deal to ensure that negotiation objectives have been met.

I have one brief final point. I am particularly drawn to the model of the Cotonou agreement between the EU, African and Caribbean countries, which sets out a framework for stakeholder engagement, thus enabling groups to put forward alternative market access schemes that offer better development opportunities.

The United Kingdom has the potential to be the global partner of choice for trade, investment and development, promoting a rules-based trade system, forging investment and advancing partnerships and technology that have potential for both sides. To best achieve this, however, the country would be better served by embracing a closer relationship with Parliament; we are more likely to be able to find solutions to challenges if all parties are around the table.

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[Lord Goldsmith of Richmond Park (Con)]

I am afraid, as I said, that I am not familiar with the words she used. I am sure that if an error was made, that error will be corrected, but I am not aware that an error has been made. MoUs on international migration are not uncommon. For example, there is a memorandum of understanding in place between the UN High Commissioner for Refugees, the African Union and Rwanda on the relocation of migrants at risk in the conflict zones of Libya.

On implementing legislation, the United Kingdom’s dualist system means that treaties do not automatically become part of our law, a point made by a number of noble Lords today. In accordance with parliamentary supremacy, entering into international obligations under the royal prerogative cannot change UK law; that can happen only through legislation. Having said that, not every treaty requires implementing legislation. The Government are always mindful of the potential need for domestic legislation to implement the UK’s international obligations when negotiating a treaty. Where such legislation is required, it is beneficial, and sometimes essential, to have the flexibility to pass it before, during or after CRaG scrutiny of a treaty. This flexibility should, we believe, be preserved.

In several continuity agreements the Government ensured that the relevant secondary legislation was in place prior to beginning CRaG and published the details of the legislation in the accompanying Explanatory Memorandum. We consider CRaG an appropriate legislative framework, providing sufficient flexibility to enable Parliament to undertake effective scrutiny prior to ratification of a treaty. We do not agree with the three proposals for reform of the statutory framework made by the committee in paragraph 94 of its report. These proposals are not suited, we believe, to the UK’s constitutional settlement as a dualist state where treaties are negotiated under the royal prerogative. This may not reassure the noble Lord, Lord Hendy, but I hope it at least answers his question.

I welcome the experience of the EU system that the noble Baroness, Lady Ludford, conveyed to us in her speech. The Government agree that the UK’s treaty scrutiny system is broadly comparable to other dualist, Westminster-style systems; in particular, those of Canada and Australia. Indeed, in some respects, particularly with regard to free trade agreements, the Government’s commitments to Parliament go beyond what is provided for in other systems. I underscore the point that we consider CRaG fit for purpose, allowing the Executive to negotiate for the UK and Parliament to conduct the necessary scrutiny. Indeed, the Constitution Committee agreed with the Government’s position in its report of 30 April 2019, noting that existing parliamentary mechanisms, supported by the work of the designated treaties committee, should be sufficient to provide effective scrutiny.

That committee also noted that mandates for treaties should not be subject to parliamentary approval. In fact, a number of the issues raised by the committee in its 2019 report were discussed at length by Parliament during the passage of the Trade Act 2021. In particular, amendments regarding Parliament’s role in the objectives and mandate-setting process and pre-signature scrutiny were explicitly considered on a number of occasions and rejected by considerable majorities in the House of Commons.

There have been multiple exchanges between the Government and the International Agreements Committee in the last two years on matters of transparency and predictability. We have listened to the Committee’s views and adapted our processes. These exchanges are clearly working, they are certainly valued and I have no doubt that they will continue. We welcome the committee’s scrutiny and I thank the noble Baroness, Lady Hayter, once again for tabling this debate and all noble Lords for their contributions.

[Viscount Waverley (CB)]

My Lords, the Minister might wish to consider speaking to the Rwandan high commissioner here, who is an august Minister for Justice and will, I am sure, be looking at his overall remarks most closely. He gave us a full briefing about various matters relating to the agreement and understanding. It would be appropriate, if there is to be a strong relationship with that country, that the situation be explained to him.

[Lord Goldsmith of Richmond Park (Con)]

That is noted. Thank you.