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Exiting the European Union (Customs)

Volume 658: debated on Monday 8 April 2019

I beg to move,

That the draft Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2019, which were laid before this House on 15 March, be approved.

I am pleased to be able to open this debate on the regulations. These regulations amend provisions of regulation (EU) No. 2019/125 of 16 January 2019 concerning trade in certain goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.

The EU regulation divides these goods into three distinct categories. First, I will begin by explaining to the House that the regulation prohibits the import and export of goods that have no practical use other than capital punishment or torture. These goods include, among other things: gallows; guillotines; electric chairs; airtight vaults; electric shock devices intended to be worn on the body; cuffs for restraining human beings that are designed to be anchored to a wall; batons and shields with metal spikes; and whips with barbs, hooks and spikes. These are appalling instruments of torture, and the Government have a clear position that the trade in such goods from the United Kingdom is absolutely unacceptable. Their export and import are prohibited, and the only exception to this rule is if the items are to be displayed publicly in a museum.

What discussions has the Minister had with his EU counterparts, for example, about how we will enforce these regulations when we leave?

I thank the hon. Gentleman for that question. The aim of these regulations is to transpose the existing system, which is reliant on EU law, into purely UK law. However, he rightly identifies the issue of co-operation with other countries in the EU. We will have our own discrete regime. We have no intention of making changes to it. We will be looking to co-operate with our colleagues in the EU—and beyond—in making sure that these appalling goods are not trafficked around the world.

Secondly, the regulation imposes controls on the trade in specified goods that have legitimate uses—for example, in law enforcement—but that also carry a risk of being used for torture. These goods with potential torture application include oversized handcuffs, shackles, gang chains, spit hoods, electric shock dart guns and pepper sprays.

The third category involves those goods listed in annexe IV of the EU regulation. The annexe lists several short-acting and intermediate-acting barbiturate anaesthetic agents such as amobarbital, pentobarbital and secobarbital. These goods have a legitimate use in medicine, in research laboratories and in university chemistry departments, but they have also been approved for use—and, in some countries, actually used—either on their own or as part of a cocktail of drugs for execution by lethal injection. We will not help any country with capital punishment, and we will continue to lobby against and seek to influence countries that continue the practice, with a view to ending capital punishment. We do not license the export of these barbiturate products to countries that have not abolished the death penalty without an end-user assurance that they will not be used for capital punishment, and we will not do so after EU exit.

All of us will have the immediate reaction that it is terrible that the UK should ever be involved in the trade of any goods that could be used for capital punishment or torture. I am confident that we can all agree that the United Kingdom does not want to be a country that makes its living trading in such possible tools of torture. These goods have been controlled by European Union regulations for well over a decade, and the United Kingdom intends to carry on with those controls in a similar way. Let me reassure the House that exports from this country of such goods have been minimal over the past decade, averaging 10 licences per year, and we do not expect that to change. The types of goods exported under licence include handcuffs for prison service use and pepper sprays for use by the police in places such as the Crown dependencies, Australia and New Zealand. We have also licensed barbiturate anaesthetic agents for medicinal use and laboratory testing. The quantities are low, and the export value is small. We do not envisage any growth in exports of those goods after EU exit.

Let me be clear about the purpose of these amending regulations. In their absence, existing European Union law would not be effective in UK domestic law on the day we exit the European Union, and our ability to control these goods would be undermined. After EU exit, this legislation will enable the Secretary of State to control the export from the UK of the listed goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As far as is possible, the legislation will operate as it does now, but controls on the goods will apply when they are exported from the UK rather than from the EU.

I do not believe that UK exporters want to be involved in a trade in torture goods, and I do not believe that these are the sorts of goods that UK businesses want to make, sell or export. Nevertheless, our export controls have an important part to play in promoting and ensuring global security, by controlling the goods that leave our shores. The Government have a responsibility to be prepared for any exit-day scenario, and we need to ensure that these controls continue to function properly. These exit-related regulations are just a part of the necessary legislative building blocks to ensure readiness on exit day.

The European Union (Withdrawal) Act 2018 enables a functioning statute book on exit day by providing Ministers with the tools to deal with deficiencies in domestic law arising as a result of our exit from the European Union. These regulations thus take another step towards completing the legislative part of controlling the export of strategic goods in preparation for a no-deal exit scenario. The Department for International Trade will continue to work to provide detailed advice and guidance about export controls and trade sanctions through EU exit and beyond. If these regulations are no longer required on exit day, we expect to revoke or amend them. Alternatively, commencement could be deferred to the end of an implementation period.

I want to take this opportunity to remind the House that these regulations are solely about preparing for European Union exit and ensuring that we have a functioning statute book in any scenario. These amendments must happen because of EU exit, but EU exit is not happening because of these amendments. Parliament needs to ensure that the existing controls remain in place. Negotiations about the future relationship between the United Kingdom and the European Union or the wider world are a separate matter. They play no part in this debate today. Broadly, all the provisions applying to exports from the EU customs territory today will instead apply to exports from the UK. For this reason, the Government have made every effort to provide certainty for businesses and the public wherever possible. There is no new marketing opportunity for the export of the tools of torture.

In August last year, we published a technical notice on export controls that explained our plans for post-EU exit export control licences. We will use our “Notices to Exporters”, which has 20,000 subscribers, to advise and communicate with UK businesses. We have also included EU exit advice in the export control training programme and at the annual export control symposium, as well as giving extensive advice to key sector trade associations.

I hope that the House will work in the interests of the nation to ensure the passage of this legislation, which is essential to ensuring we are prepared for EU exit and that we continue the ban on the trade in torture goods and the control over the trade in goods with the potential for torture application. I commend the motion to the House.

The statutory instrument before us today contains extremely important measures to ensure that the United Kingdom has a robust export controls regime in place after Brexit. It is needed to prevent UK exports from being used for torture activities, capital punishment or the suppression of citizens and their human rights in other countries. It is absolutely right that we ensure the continuance of this regime once we leave the European Union. Indeed, such is the seriousness of the matter covered by the draft regulations that we should take every opportunity to review and, where possible, improve our efforts in this area.

The draft regulations are set out in this draft instrument, together with measures voted on a few weeks ago in respect of an additional instrument. The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 were initially integrated into a single draft instrument tabled on 11 February and subsequently withdrawn. I would be grateful if the Minister could confirm why the Government withdrew that initial draft and split the measures contained in it. If there was defective drafting, can he confirm that the Government are satisfied that the revised wording properly remedies the defects?

The draft regulations operate to ensure that goods that could be used for the purposes of torture or capital punishment are banned from export and/or import or, where appropriate, that an authorisation must be sought and granted prior to their export. That is entirely right, and it is welcome that the Government have sought to continue the existing EU regime more or less unchanged in a UK-specific context after Brexit. This is by way of a series of amendments to a recent Council regulation which, as I understand it, has not yet otherwise been incorporated in our domestic statute book. For the most part, as with a number of recent statutory instruments, the draft regulations proposed by the Government seek to ensure that references to the European Union or European Community are replaced by references to the United Kingdom, our customs territory or the Secretary of State.

However, there are amendments whose intent requires clarification, and I will come to those points shortly. Fundamentally, these provisions seek to prevent the trade in goods that may be used for torture or to administer capital punishment. How we treat our citizens, including those who have committed even the most heinous of crimes, reflects the society that we strive to be. In that respect, I am proud that it was a Labour MP who brought about the end of capital punishment in this country. As I have said before, we in the Labour party want to ensure that a robust and rigorous control system is in place in respect of dual-use items, firearms and other sensitive material. That includes any items that may be used for the purposes of torture or capital punishment. Indeed, we have called for a tighter approach to our export controls regime and for the cessation of exports to countries where there is a concern that they will be used to violate international humanitarian law. It is therefore concerning that in 2015 the Government decided to drop explicit references to the Foreign Office’s long-standing commitment to making efforts to encourage the abolition of the death penalty overseas. Although I welcome the Minister’s comments, will he confirm whether the Government have any plans to make subsequent amendments to the draft regulations once the United Kingdom has left the European Union?

Regulation 2(24) amends article 24 of the existing regulations to allow the Secretary of State, by negative resolution, to vary our schedules to add or remove items and procedures, so it is crucial that we understand the Government’s policy intention in this regard. The use of the negative resolution procedure to lift restrictions currently in place is extremely concerning. Will the Minister therefore confirm whether he is satisfied that these measures are sufficient to prevent the UK’s participation in the trade in torture goods or in drugs administered for the purposes of capital punishment, including the transfer of intellectual property within international corporate structures, such that UK-developed products might be reproduced or R&D transferred intragroup for such purposes?

Paragraphs (12) and (17) of regulation 2 remove the requirement to refer decisions made in the past three years by other EU member states in respect of these regulations. It seems entirely sensible to refer to precedents established by other countries, particularly where those countries ostensibly operate the same regime as our own. Perhaps the Minister can clarify whether the Government intend to continue to refer to any such precedents in any future decisions made by the Secretary of State. Indeed, paragraph (12) removes the EU from the list of competent bodies whose findings should be referenced, so I would be grateful if the Minister clarified the Government’s intention in that regard.

Paragraph (17) of regulation 2 removes the obligation of the Commission and member states to develop best practice approaches, alongside paragraph (31), which clearly ends the UK’s participation in the anti-torture co-ordination group. Although the Government might consider that to be necessary once we have withdrawn from the EU, it would be helpful if he set out how the Government intend to continue dialogue with our international partners, particularly in the EU, on common approaches to controlling torture goods.

Furthermore, paragraphs (14) and (15) of regulation 2 seek to remove references to the national treatment provisions in respect of the trade in leg irons, gang chains and portable electric shock devices. Again, I ask the Minister to put on the record what the Government’s intended approach to these measures will be.

Paragraph (32) of regulation 2 omits article 32 of the European regulations, which requires the Commission to publish a periodic report on the impact of these measures every five years and to include proposals for improvement. How do the Government intend to report on these measures in a UK-specific context?

Finally, paragraph (33) of regulation 2 removes the national determination of appropriate penalties provisions. I would be grateful if the Minister also put on the record what the Government’s proposed penalties for breaches of these regulations will be.

I rise to support the motion, because this subject is close to my heart. One of the inalienable rights that this House has secured in this realm, and indeed on which it has exerted its influence around the world, is the absolute right not to be tortured. We enjoy many rights through the universal declaration of human rights, and indeed through the laws, customs and practice that this kingdom has established over many generations, but most are qualified rights. The right to life, for example, is not an unqualified right; if it were, every doctor would be required always to provide the most invasive surgery and treatment, whatever their patient’s stage in life, even though for some that would be an act of cruelty. Many other rights are qualified in different ways, such as the right to family life, which is qualified when people commit crimes of such gravity that their rights must be legally withdrawn.

However, the right not to be tortured is an absolute right. There are no grounds on which torture can ever be acceptable. That is something that our country has recognised for many years. Those Members who have visited the Tower of London—I admit that I have not been for many years—will have seen the signatures produced by that famous traitor Guy Fawkes before and after he was tortured; the first shows the florid script of Tudor handwriting, while the second is a scratchy, ink-stained scrawl across the parchment, demonstrating the harm caused by the rack.

Sadly, elsewhere in the world torture is still used to this day, and indeed in some places it is extremely common. We have heard time and again of the terrible crimes committed against the Yazidis by Islamic State—crimes of torture that really do cry out for justice. Women have been raped, parents have been separated from their children, men have been murdered in the most horrific fashion, and children have been enslaved, to become either sex workers or murderers for Islamic State. We see all too clearly that torture is alive and well.

Sadly, torture is also alive in certain states. Most recently this was brought to our attention in relation to Brunei. It is a moment of great sadness to many of us who know that Brunei Darussalam, as it calls itself—Brunei, the abode of peace—has been a great friend to the United Kingdom for many years. Today it finds itself reintroducing the penalty, under hudud and sharia, of stoning to death for homosexuals. If that is not a form of torture, and of unbelievably cruel and unusual punishment, I do not know what is.

Torture is alive and well today, despite the 1948 universal declaration of human rights, the 1966 international covenant on civil and political rights, and the 1984 convention against torture, which has now been signed and ratified by over 150 nations and therefore stands part of ordinary law and of the common understanding of rights that people enjoy.

It is worth considering why we are now domesticating these rights and not just allowing existing rules to stand. Of course, they will not stand as we step away from the European Union. It is also worth thinking about why these rights were introduced in Europe in the first place. Of course, many of these rights were introduced not by the European Union but by the European convention on human rights, the amazing piece of drafting that was crafted by lawyers in the aftermath of the second world war—that paragon of torture; that terrible moment when the world looked the devil in the face and the devil really did take hold. In the aftermath of that appalling moment, those laws were drafted by Conservative lawyers—in fact, one of them became a Conservative Attorney General, I am pleased to say—and by people who realised that when the world turns its face to evil, the only thing that occasionally can restrain it is the law.

I am therefore delighted that today we are again recognising that the law requires the ability to control the export of items of torture in order to ensure that we can continue to play our part.

The hon. Gentleman will be able to confirm that there has been no suggestion whatever that our departure from the EU will in any way impinge on our support for the European convention on human rights, which stands alone and is unaffected by our membership of the EU.

The hon. Gentleman is absolutely right. The ECHR was signed in the 1950s, coming well before and standing separate from the EU. Indeed, it underpins many aspects of the laws that have been signed with our neighbouring states, as he will know only too well. Of course, the ECHR was not at all about the import of European law into the United Kingdom; it was about the export into Europe of UK laws written in the aftermath of the horrors of the second world war. It is of great importance that we remember that the EU and the ECHR are different things.

In closing, it is important to recognise that not only is the export of items of torture horrific but it goes against all the values for which this House and these great islands stand. It is therefore a great pleasure to support the Minister.

It is a pleasure to follow the Chair of the Foreign Affairs Committee, and I look forward to seeing what the hon. Member for Ochil and South Perthshire (Luke Graham) has to say. I welcome and agree with much of what the Minister said, but I will echo one or two of the shadow Minister’s concerns, including those about article 24 and delegated powers. I will also raise one or two further concerns later on.

Like other Brexit-related legislation, these draft regulations are pretty technical and perhaps not the easiest or most exhilarating of reads but, as other Members have said, they have an important aim and can contribute to making life more difficult for regimes that continue to practise systematic torture and implement the death penalty, doing so using products that are traded and shipped internationally. Domestic export bans have helped tackle the issue, and the so-called torture goods regulations are the EU’s equivalent. It is therefore vital that we retain and even build on the provisions that ban the import and export of goods that can be used only for torture and that we establish a system of licensing for goods with legitimate uses that can also be used for torture. Not only are the provisions consistent with the European convention on human rights, as the Government are obliged to state, but they may help to enhance the protection of those rights in a small but significant way around the world.

However, one issue that I want to raise relates to something set out in the explanatory notes. One of the changes made by the draft regulations is that the

“Member State notification requirements are omitted.”

Those requirements are found in article 23 of the torture good regulations, and they require member states who turn down or annul authorisations to trade in goods that can be used for torture to notify other member states and the EU Commission of that fact. That means that other authorities can be alert to applications from the same traders and be alive to the issues that led to their general refusal or annulment in the first place.

Why has that requirement been completely removed from the draft regulations? I accept that it is a reciprocal arrangement that the Government have the power to correct under the European Union (Withdrawal) Act 2018, but I see no good reason why it should be corrected by taking the requirement out altogether. It is not a typical Brexit-related reciprocal arrangement whereby we would otherwise be left under an obligation for no good reason at all or to the benefit of the EU. In this case, there is a good reason to continue to notify EU member states and the Commission, and the beneficiaries of such notifications would of course be those who would otherwise be on the receiving end of torture if such applications were successful. I regret and query why the requirement to notify has not in some way been preserved. It would be useful to hear more about whether the Government will be seeking to work to come to a similar arrangement with the EU and other member states in future.

More generally, will the Government ensure that this country continues to play its part in tackling the trade in torture goods, including through its membership of the Alliance for Torture-Free Trade? This initiative, started by Argentina, the European Union and Mongolia, brings countries together with the aim of ending the trade in such goods. It promotes controls and restrictions on the goods, best practice, the exchange of information, co-ordination to support monitoring and enforcement, and technical support for countries wanting to take such measures themselves. The UK is a member state in its own right, not simply through the European Union, which is obviously welcome, but I hope that this country will continue to be an active member of the organisation.

In short, the draft regulations are important, and they have the SNP’s full support. However, we must do all that we can to inhibit regimes around the world from perpetrating torture and enforcing the death penalty.

I stand to speak in support of the draft regulations. They may sound elementary, but it is important that the UK is explicit in its opposition to instruments of torture. The UK’s commitment to that is exemplified by our being one of the signatories of the Alliance for Torture-Free Trade, which the UK has helped to champion around the world, and that sends out a signal internationally.

The United Kingdom has been a leader on human rights for a long time. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) has already referred to how strong the United Kingdom has been in the past, and this is not just about the recent past. Back in the19th century, this Parliament was one of the first among the advanced nations to abolish slavery. Yes, the United Kingdom was involved in the slave trade, but it is often overlooked that this was one of the first Parliaments to abolish it. Not only did we reinforce that decision in British waters but we enforced it in international waters around the globe. All merchants in England, Scotland, Wales, Northern Ireland and throughout what was then the empire were led by this House and told what the right actions were to take and what the moral course was. They were told why trade should be not just about profits but about overall prosperity and moral righteousness.

Statutory instruments such as this are becoming increasingly important. We must ensure that our legal system is explicit, both domestically and internationally, about the element of transparency. Before I came to this place, I worked in finance—I draw Members’ attention to my entry in the Register of Members’ Financial Interests—and I was able to work abroad. I worked in several Asian countries that are far less democratic than our own, and I regularly heard of cases in which people were subjected to overt, covert, explicit and emotional torture. No one was ever held to account. There was no transparency in the judiciary to hold people accountable, there was certainly no authority to hold the Government to account or, indeed, individual traders or merchants involved in supplying the materials that facilitated torture. When people who were taking part in political demonstrations, the likes of which we see outside this place every day, are taken away, bundled into a van and then never heard of again, one starts to understand the importance of this type of legislation and why the United Kingdom’s position as a leader in human rights and against torture is so important.

Maintaining standards is also important. We in this House are acutely aware of that just now, and it is certainly something that we should probably reflect on more and more. However, this is also about our country maintaining standards across the world. Over the past two decades—certainly when I was going through my education—I have seen the United Kingdom soften its lines and sometimes let standards slip. Whether in the misadministration in Iraq or not adhering to red lines in Syria, mistakes have cost so many lives, both at home and abroad. The ghosts will haunt us for many years to come. We cannot dare to repeat those kinds of mistakes in this place or elsewhere.

We must continue to champion human rights and to reinforce the international order. We must also continue to set new standards, so that when new challenges to the international order emerge—in whatever form they may be—this House can rise to meet them and ensure that we lead people together in prosperity, in peace and in moral authority.

It has been a great pleasure to participate in this debate. We have heard powerful speeches, not least from the Opposition spokeswoman but also from the SNP spokesman and from my hon. Friends the Members for Tonbridge and Malling (Tom Tugendhat) and for Ochil and South Perthshire (Luke Graham).

Most of the questions came from the Opposition spokeswoman, as is appropriate. As for what happened with the process, the original draft regulations had to be withdrawn when the EU regulation was codified into a new version. Splitting the UK legislation was the most expedient way of dealing with the problem, and I really do appreciate the hon. Lady’s support for what we are trying to do tonight. We have no plans for further amendments, and I can confirm that the Government will maintain strong controls over the trade in goods usable for capital punishment or torture.

The hon. Lady asked about precedent from other states. When we leave the EU we will no longer receive information from other member states about licences that they have refused. We will, however, continue to take account of all relevant information that comes our way when assessing licence applications and—this goes to the heart of the question asked by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) of the SNP—we would welcome the opportunity to continue co-operation with the EU, but that will be subject to whatever settlement we finally agree.

The hon. Member for Bradford South (Judith Cummins) asked about reporting and transparency. We will report annually. Right now, we publish more information than almost any other nation and we want that transparent approach to continue. Of course, the UK operates one of the most rigorous and transparent export licensing systems in the world, and all export licence applications are considered on a case-by-case basis against the consolidated EU and national arms export licensing criteria. We are not changing those. We publish quarterly and annual statistics on our export licensing decisions, including details of export licences granted and refused.

I have been asked about penalties. Breaches of regulation can lead to up to 10 years in prison. We plan to maintain the existing regime. We will also continue—this issue has also been raised—to be an active member of the global Alliance for Torture-free Trade after leaving the EU.

We have a responsibility to ensure the safety and security of our people. The regulations support that objective and I am grateful to colleagues from across the House for supporting them. I commend the regulations to the House.

Question put and agreed to.


That the draft Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2019, which were laid before this House on 15 March, be approved.


Motion made, and Question put forthwith (Standing Order No. 118(6)),

That the draft Electricity Capacity (No. 1) Regulations 2019, which were laid before this House on 28 February, be approved.—(Amanda Milling.)

Question agreed to.