Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2019

Lord Paddick Excerpts

Thursday 11th April 2019 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am grateful to the Minister for explaining this instrument. However, I have some concerns not only about the instrument, but about what she has just said. On execution by lawful injection, she said that the UK would not help any country with capital punishment. I regret to say that recent developments show that that is not the case. I will explain what I mean.

There have been and continue to be concerning developments in the Government’s attitude towards the death penalty in other countries, contrary to what the Minister has just said. In a recent case of suspected so-called Islamic State terrorists, the United Kingdom did not seek the usual death penalty assurances from the United States in providing evidence to assist in the prosecution of the alleged terrorists. The Government stated that it was a wholly exceptional case.

During the passage of the Crime (Overseas Production Orders) Act, which enables UK law enforcement to make application to UK courts for orders to secure data from overseas companies, the Government refused to guarantee that any treaty that such orders would rely on would contain a death penalty assurance. I understand that negotiations are ongoing between the UK and the United States to agree a data-sharing treaty that would also enable US law enforcement to secure evidence from the UK for use in American criminal trials, which could result in the death penalty. It was made clear that, should the US refuse to sign such a treaty if it contained a death penalty assurance, the UK would not include one. In other words, the “wholly exceptional” case of not seeking a death penalty assurance in the case of the alleged ISIS terrorists would become the norm.

It appears to me that the direction of travel of this Conservative Government is to reverse the UK’s long-standing commitment to make efforts to encourage the abolition of the death penalty wherever it was legal to carry it out. Against that background, while additions to the goods covered by these regulations can and should be made by the Secretary of State by negative resolution, I am concerned that the removal of any goods from those currently listed as those that could be used for capital punishment should be by the affirmative resolution and not the negative.

It was explained that such a data-sharing treaty with the United States was potentially so valuable that we were prepared to forgo the death penalty assurance. I am concerned that a future free trade agreement with the United States might be so valued by this Government, or any future Government, that they might be prepared to remove certain goods from the list of those that could be used for capital punishment at the request of the United States, if this was necessary to ensure such a free trade agreement. The Government are already prepared to provide evidence to United States law enforcement even if it results in someone being sentenced to death. I am now concerned that this Government may also be prepared to provide the United States with the goods that would enable the US to carry out such an execution, without the explicit consent of both Houses of Parliament. I look forward to the Minister’s assurance that this will not be the case.

[Lord Lennie (Lab)]

My Lords, I thank the Minister for her introduction to this important statutory instrument and the noble Lord, Lord Paddick, for raising the issues concerning our relationship with the United States. Before the debate started, I promised myself that I would not take up too much of your Lordships’ time before we break for Easter, but the right honourable Lady kicking the can down the road in the other place has rather taken care of that.

There are some observations to be made and questions to be asked in addition to the points made by the noble Lord, Lord Paddick. As the Minister said, the regulations deal with trading certain goods that can be used for capital punishment, inhumane or degrading treatment, or punishment as is seen fit. Some of these goods are currently banned, while a licence must be obtained before export for others that could be used for torture. Back in the day, in the early Noughties, the Blair Government introduced the current triple lock on the export of these products, giving the Ministry of Defence, the Foreign Office and the DTI, as was—now BEIS—a say on whether the export of such goods that could be used for torture or capital punishment should be licensed, with the DTI making the final decision on the outcome of the discussions. This was an embodiment of, or follow-up on, Labour’s ethical foreign policies, as introduced by the former Foreign Secretary, Robin Cook, and was designed to make our Government think twice before licensing the exports of such goods.

Since the Brexit referendum, responsibility has passed from BEIS to the Department for International Trade, as the Minister said. I wonder whether there has been any relaxation in the application of rules and standards since then. Can the Minister tell the House whether the granting of export licences has increased, decreased or remained much the same, or is expected to do any of the above, since that transfer of responsibility? She talked about the average referred to in the other place of 10 grants per year, but I do not know whether that is expected to change in the years to come. Should Brexit occur, the UK Government will inherit responsibility for licensing the export of these goods from the European Union, as was said. The Explanatory Memorandum to the SI states:

“The impact on business, charities or voluntary bodies is a new requirement for torture goods export licences”.


This being the case, can the Minister tell the House why no impact assessments have been produced for this statutory instrument? It seems that there is a requirement on the Government to do so on behalf of the businesses, charities and voluntary bodies for which there is a new requirement regarding torture goods export licences.

By how many UK businesses will these changes be felt? As I said before, a figure of an average of 10 grants per year was used in the other place by way of explanation, but communication about these new export licences would happen through a notice to exporters, which includes some 20,000 companies. Could the Government not be more precise about their communication on this extremely serious matter—that is, could not the 10 or thereabouts companies per year that engage in the export of such goods be communicated with directly concerning the changes in and requirements of the transferal of the law from the EU to the UK? Can the Minister explain the new criteria justification for permitting the export of such goods? Will there be any changes to the current criteria or will they remain the same? It is assumed that compliance with international standards will remain an obligation on the Government, but that will be made more difficult as the UK will no longer be in the EU’s tent, so to speak, to communicate about these matters. Can the Minister confirm that the Government will continue to comply with international standards and explain how they will get information about what is being considered, what has been rejected and what has been accepted—or, indeed, denied—for licensing by the European Union or other international bodies, post Brexit?

We are considering the most important part of the UK’s continuing reputation as a country that places human rights at the centre of our international relations. Although, on these Benches, we support the requirement of the SI, it is necessary that the Government address these and other questions before the House agrees to it.

--- Later in debate ---

The noble Lord, Lord Lennie, also asked about impact assessments. I reassure him that I raised this point myself with officials. I understand that impact assessments are not required for these EU exit regulations because the impact on businesses is nominal and we will continue to do what we are currently doing. Lastly, perhaps I may reassure the noble Lord once again about the number of businesses that will be affected. In the past few years only seven companies have had licences to export these goods. We have made every effort to communicate with the companies that are affected, and of course we will continue to do so.

[Lord Paddick]

My Lords, the specific question I put to the Minister was that if an item is currently included in the list because it can be used in the course of capital punishment, it would be a very serious matter if such an item was removed from the list simply because the Secretary of State decided that that should be the case. That decision would be brought forward in regulations made under the negative procedure. Surely, given that this is such a fundamental issue and bearing in mind what we have seen—I understand that issues related to data sharing are not within the scope of this instrument—regarding the Government’s attitude towards capital punishment in other countries, such a decision should be subject to the affirmative procedure. Were the Minister to decide to add items to the list of goods that should be restricted I could understand why that could well be dealt with through the negative procedure, but such an important step as removing items that could be used in capital punishment from that list should be taken only by the affirmative procedure.

[Baroness Manzoor]

I understand the point raised by the noble Lord. We will work closely with the EU on the regulations that it has in place to ensure that when we consider any regulations relating to exports, we will look carefully at whether items should be either taken off the list or added to it. We are not currently making any policy changes at all and there are no plans to do so. If there are any plans to change the policy, I understand that they will go before the Commons and the Lords under the negative procedure. However, there are no plans to add to or change any element of the policy as it stands.

I understand the point the noble Lord is making: he feels it should be under the affirmative rather than the negative procedure. As it stands, it is under the negative procedure should the Secretary of State wish to add anything to that list. If I have not understood that question clearly, I will write to the noble Lord so that there is greater clarity on the affirmative or the negative—

[Baroness Manzoor]

As I indicated, we have no plans to remove or change the policy. The list is as it is. I understand the point the noble Lord is making. At the moment, that is how it stands. Should we need to change the policy at a later stage if something comes off the list, it will be done in the usual way, going to the Commons and here. But I can reassure both noble Lords that, as I understand it, the current intention is not to take something off the list. I am turning to my officials to check that that is correct and they are nodding furiously. That is the policy as it stands; there is no consideration of changing that policy and taking anything off the list at the moment. There is nothing further I can add to that, but I undertake to write to both noble Lords if I can fill out that answer a little more.

[Lord Paddick]

Perhaps I can help the noble Baroness by clarifying the question that she has agreed to answer. At the moment, it is presumably the European Union that decides what is on the list and what should be taken off it. By this statutory instrument, the Government are taking the power so that the Secretary of State can decide what is and is not on the list. If they are going to remove from the list something that can be used in the course of capital punishment, it should be by the affirmative and not the negative procedure.

[Baroness Manzoor]

As I said, I understand quite clearly the point that the noble Lord made. It is not our intention to take anything off the list, but I have undertaken to write to the noble Lord if I can add anything further. There is no policy change in this SI.