House of Lords
Monday 15 June 2020
The House met in a Hybrid Sitting.
Prayers—read by the Lord Bishop of Durham.
Arrangement of Business
My Lords, a limited number of Members are here in the Chamber, respecting social distancing. Other Members will participate remotely, but all Members will be treated equally wherever they are. For Members participating remotely, microphones will unmute shortly before they are to speak—please accept any on-screen prompts to unmute. Microphones will be muted after each speech. I ask noble Lords to be patient if there are any short delays as we switch between physical and remote participants.
Northern Ireland: Paramilitary Groups
My Lords, journalists play a vital role in our society, as do the public representatives who have defended press freedoms. It is unacceptable that they should find themselves threatened for doing their job. We give the fullest possible support to efforts to tackle the threat from groups involved in terrorism and paramilitarism in Northern Ireland, supporting the PSNI with additional security funding and the Northern Ireland Executive’s programme to tackle paramilitary activity, criminality and organised crime.
My Lords, does my noble friend agree that the recent death threats to journalists and politicians in Northern Ireland from paramilitary groups are, quite frankly, beyond despicable and have no place in any society based on democracy and the rule of law? The 2015 fresh start agreement, which I helped to negotiate, contained a number of commitments to tackle paramilitary activity. However, while some progress has been made, it is limited. Does he agree that everyone in Northern Ireland should be able to go about their daily business without threat or the fear of threat, and that we now urgently need a renewed, serious effort to put all paramilitary groups—they were never justified in the past and have no justification today—out of business for good?
My noble friend makes some excellent points. I read his article this morning and share his frustration. Ending paramilitarism and the harm caused by it is a priority in the new programme for government. He will know that these are complex issues which require a long-term approach. A targeted approach to tackling paramilitarism across the Executive is also recognised in the New Decade, New Approach agreement.
My Lords, as the noble Lord, Lord Caine, has said, these threats to journalists and politicians are outrageous. What about terrorist attacks, such as those on Jennifer McNern, who lost both her legs? This week she is having to drag herself to the High Court in Belfast to force the Northern Ireland Executive to meet their legal responsibility to implement the victims payments scheme for those, like her, severely injured through no fault of their own. Is it not utterly shameful that the Secretary of State, the First Minister and Deputy First Minister have still not resolved the funding and other issues so retraumatising Jennifer in this way?
The noble Lord has made these points before. He is absolutely right that we must put the victims first but, as he will know, the key to unblocking progress is the designation of a department to provide administrative support to the victims’ payments board. The Justice Minister has indicated that she is prepared to take on that role, and I reassure the noble Lord that the Secretary of State is working as hard as he can to take matters forward. It is urgent.
My Lords, whether it is paramilitaries intimidating politicians and journalists in Northern Ireland or fascists beating up photographers in Parliament Square just this weekend, such actions represent a direct assault on our democracy. Will the Government therefore consider whether an aggravated criminal offence is necessary to deal with those who attempt to impede our democracy in this way?
I take note of the noble Lord’s point. To echo his thoughts, I say that a free, independent media is a cornerstone of our democracy. It is vital that the media and elected representatives can continue their work without the fear of attack or threat.
My Lords, I suggest to the noble Lord, Lord Caine, that when the Secretary of State next meets representatives of the republican movement he could remind them that they were admitted into the talks process only when they committed themselves to democratic and peaceful means. That commitment has somewhat frayed after senior members of the republican movement have tried to justify the terrorist campaign. We have to take that seriously. It reminds me of how we made the Belfast agreement—to which, incidentally, the recent actions of the republicans have been contrary. We did so by voting. All the parties voted for it, and then Sinn Féin did not support the agreement. That tells you something about the character of the organisation. I quote from somewhere else: the maintenance of peace requires constant vigilance.
My Lords, these are complex issues, which demand a long-term, thoughtful approach. The UK and Irish Governments, and each of the parties in the Northern Ireland Executive, including Sinn Féin, made a clear commitment to tackle paramilitary activity in Northern Ireland in the New Decade, New Approach agreement. The paramilitary crime task force has also reported a number of successful investigations into and disruptions of the activities of republican paramilitary groups.
My Lords, it would be foolhardy not to recognise and be sensitive to the many current challenges of Northern Ireland. Are the Government open to think afresh or amend any policy, possibly in consultation with Brussels and Dublin, to ensure that a peaceful environment in Northern Ireland continues to be built upon, with hope and well-being? While I concur that intimidation should be taken seriously and that democracies should never yield to these threats, which will lead nowhere, what advice is special security offering, and which terrorist group or groups are threatening politicians and journalism?
The noble Viscount makes a good point, which is that all parties must continue to work together. The Secretary of State and the Northern Ireland Executive are working very hard with them to achieve what he sets out: namely, a permanent, long-lasting peace. There is absolutely no place in any society for threats or violence, and certainly not in Northern Ireland.
My Lords, does the Minister agree that the solidarity across all parties in Northern Ireland, civic society and the two Governments on this issue should send a clear signal to these paramilitary thugs that they have no place in the Northern Ireland of today? Will he accept that further reconciliation will be improved by the immediate granting of pensions to victims of the Troubles, as mentioned earlier by my noble friend Lord Hain?
I have certainly answered the question on victims’ payments. The noble Lord is right: there is absolutely no place for dissident terrorists or paramilitary groups to exert control over communities through violence or threats, or to exploit those communities for their own ends. Those involved in these groups offer nothing but harm to communities.
There is absolutely no justification for any threats to journalists or politicians that raise the prospect of a descent back into the spectre of violence that the Good Friday agreement sought to end. I am a member of the National Union of Journalists, and journalists and politicians must be free to report facts and express opinions right across the political and community spectrums, while avoiding amplifying inflammatory statements that could encourage conflict and violence. Does the Minister agree?
I agree, and the noble Lord will know that the campaign by the National Union of Journalists is important. Journalists play a vital role in Northern Ireland, and I say again that they must be free at all times to do their jobs without fear of violence. The Secretary of State made that clear last month when he signed the public statement issued by the National Union of Journalists.
I will certainly take that back to the Northern Ireland Office and speak to my noble friend about it offline. The PSNI works tirelessly to prevent crime and harm to individuals, including journalists, and it is important to bring those responsible before the courts. It has and must have our fullest possible support.
My Lords, the noble Viscount said that we had to take a long-term, thoughtful approach to these matters. It is now 22 years since the Belfast agreement was ratified by referendum, yet every single one of the paramilitary organisations in Northern Ireland, plus a few that have developed since, are still functioning. Surely that demonstrates the need for an absolutely fresh start regarding tackling this paramilitary violence.
I stick by my lines: it is a long-term matter, and I am sure that the noble Lord will agree. We have worked with the Northern Ireland Executive to ensure a clear, strategic approach: long-term intervention, building confidence in the justice system, tackling criminal activity, and building capacity to support transition. There is no complacency. We need to move as fast as we can, but that is the strategy.
Fixed-term Parliaments Act 2011
My Lords, under the Fixed-term Parliaments Act, the Prime Minister is required, between June and November 2020, to make arrangements for a committee to undertake a review of the operation of the Act. Announcements about arrangements for such a committee will be made in due course.
Given that the Government have a manifesto commitment to remove the Fixed-term Parliaments Act from the statute book, as indeed do the Opposition, and given that one has to put something in its place because the old arrangements are not automatically resuscitated, do the Government agree that the committee that has to be set up on the Act is an ideal vehicle for generating—quickly—a replacement measure to enable the Government potentially to legislate by next year?
My Lords, my noble friend is an outstanding authority on these matters, and I am sure that all contributions from him will be heard on all sides of the House. He is quite right to say that the Government made a commitment in their manifesto to repeal the Act. However, I can only repeat that detailed announcements about how we will proceed will come in due course.
My Lords, I served on the Constitution Committee during the passage of the then Bill. We heard extensively about the many concerns regarding it, which eventually came to pass during 2017-19. If ever a demonstration was needed that the Act is unsuited to our constitution, the last few years provided it. Can the Minister therefore please press for the review to be announced as soon as possible so that we have the legislative time to pass the necessary legislation to do away with it?
My Lords, this Act has clearly served Parliament badly but I worry that we are getting too many reviews and commissions confused together. Bearing in mind that many other parliaments around the world have a fixed term and that we are in a completely new age from the point of view of the electorate, who are now digitally empowered, is not the length of parliamentary Sessions a prime subject for the constitutional commission? Should not the review of the workings of this Act somehow be worked into the commission, where we will look closely at the effectiveness and functioning of Parliament, which has not been too good in the past and where people are now looking for a very much more effective and stronger performance?
My Lords, again, my noble friend makes important points. It is certainly the Government’s intention to improve electoral procedures—separate announcements have been made on that—but Section 7 of the Act lays specific duties on the Prime Minister, and the Government must observe the law of the land.
The Political and Constitutional Reform Committee’s report in September 2010 on the Fixed-term Parliaments Bill received evidence that the Bill had been prepared on an extraordinarily rushed timetable and introduced with no prior consultation and no Green or White Paper; nor had time been allowed for pre-legislative scrutiny. The committee’s concerns were entirely justified. We cannot go on making quick-fix changes to resolve short-term political problems. Does the Minister agree that we need a thorough overhaul of our constitution, particularly on the role of the nations and regions in the post-EU United Kingdom?
My Lords, in their manifesto, the Government emphasised the need for long-term consideration of our constitutional arrangements, as my noble friend Lord Howell of Guildford said. The noble Baroness is correct that this should not be hurried. The Government will bring forward their proposals on how we should proceed in due course.
My Lords, in the last few years, there has been a great deal of discussion, particularly from within the Conservative Party, about the need to strengthen the principle of parliamentary sovereignty. If we abolish the Fixed-term Parliaments Act, we will go back to a substantial role for executive sovereignty in the UK. Does the Minister accept that we cannot go backwards by abolishing the Act and that we need to strengthen Parliament’s role in organising its own meetings, terms, Prorogation and Dissolution?
My Lords, as I said, many matters will be considered and we will make further announcements in due course. I think the noble Lord would agree that Parliament did not have its finest hour under the aegis of the Fixed-term Parliaments Act. That is why, partly to restore Parliament’s reputation, we need clear arrangements that command support.
My Lords, I want to comment on my noble friend’s constant references to “in due course”. The Parliamentary Constituencies Bill, already under consideration in the Commons, is affected by any changes to the Fixed-term Parliaments Act; and the noble Lord, Lord Shutt, is chairing a committee in this House giving consideration to electoral legislation, which will also be affected by any such changes. I ask my noble friend to expedite both the commission’s implementation and its completion.
My Lords, my noble friend refers to important legislation relating to modes of election. We are talking here about the timing of elections. I assure him that the Government remain completely committed to implementing their manifesto proposal on this Act.
It is a rather misnamed Act—is it not?—because the Fixed-term Parliaments Act actually allows for two unscheduled elections at the time of the Government’s choosing. I hope that, as the noble Lord, Lord Hayward, said, we can move with some speed on this. Will the Minister ensure that representatives of the regions and the nations—perhaps also of the Opposition—are included on this committee? It is too serious an issue to leave to just a handful of Government-appointed people.
My Lords, if I recall correctly, we were told by our Liberal Democrat colleagues in 2011 that the purpose of the Fixed-term Parliaments Act was to provide stability. The Act did that under the coalition Government but it has been nothing but problematic ever since. The Act should have included a sunset clause. With that in mind, does my noble friend the Minister agree that now is the time to return to the usual method and that tinkering with the constitution without proper checks and balances can have the exact opposite result to that of stable government?
My Lords, I agree with my noble friend. On the details, I must ask again for the House’s patience. She is quite right to say that the Act was born in unusual circumstances: it was part of a doubleton with plans for proportional representation, which the Liberal Democrat party hoped at the time would enable it to hold the ring in Parliament and change horses whenever it wished.
My Lords, again, the noble Lord tempts me to go ahead of where we are now. I do not agree with the idea advanced by a number of noble Lords that, axiomatically, the Prime Minister’s power to dissolve works in that Prime Minister’s interest; for example, it did not do so for Mr Heath in February 1974.
My Lords, returning to the membership of the committee, the Act states:
“A majority of the members of the committee are to be members of the House of Commons.”
I support my noble friend Lady Hayter in saying that those Members should represent the different parts of the United Kingdom, but can the Minister confirm that Members from this House of Parliament will also be on the committee?
My Lords, again, I cannot anticipate the announcements that the Government will make. The noble Lord is quite right, as always: the Act stipulates that the majority on the committee should be Members of the House of Commons, but it says nothing about the others.
Covid-19: Furloughed Space Grant Scheme
My Lords, the Chancellor has announced unprecedented support for businesses affected by coronavirus, including giving them access to cash to pay their rent, salaries or suppliers. The Government have also taken steps to protect commercial tenants from eviction and are working with the sector to publish a code of practice to guide and encourage all parties to work together to protect viable businesses and ensure a swift recovery. The Government keep all policies under review.
I thank the Minister for her Answer. However, the code is not cash. It has no teeth. The Government have rightly spent billions furloughing workers, but that money will be money down the drain if they blink now and fail to support businesses who employ such workers; instead, the Government will have to pay many millions in benefits to the burgeoning number of the unemployed. Why not make the grant aid subject to a negotiated settlement between landlords and tenants, based on the code? This would provide valuable support to businesses that are paying and giving what they can afford; it would also encourage others to follow suit and do the same.
The code is designed to encourage landlords and their tenants to find a solution that works for them both. On cash support, in addition to the Coronavirus Job Retention Scheme and others, we are getting cash directly to businesses, providing business rates relief worth more than £9 billion and providing grants to eligible businesses worth over £10 billion.
My Lords, tens of thousands of businesses are still not receiving support from the Government’s existing schemes. The latest figures show that 45,000 smaller businesses are still waiting for a loan through the Coronavirus Business Interruption Loan Scheme, and 60% of larger businesses still waiting too. What action are the Government taking to speed up the approval of loans to businesses, many of which have been facing cash flow difficulties for months already?
The noble Lord is right: some businesses have had trouble accessing the initial loan support schemes. One thing that the Government have done to change this was the introduction of the bounce-back loan scheme, which has significantly increased the speed of approvals for those businesses that qualify. We are also doing other things to help with cash flow that do not rely on such approvals. As I said, 99% of eligible businesses that are also eligible for a rates holiday have already been granted that and we have released £10 billion of cash grants to them as well.
My Lords, many of the landlords of the retail properties now in need of the sort of help being discussed are local authorities. They are allowed to borrow money from the Government to invest in commercial property to the tune of £6.6 billion. This was always going to end in disaster, so will the Minister give an assurance that in future, the Government will lend to local authorities only to invest in social housing, not in ill-judged ventures into commercial property?
My Lords, I refer to my interests as set out in the register. Even without the Covid crisis, does my noble friend agree that the trading position of many of our high streets has become problematic? Will the Government consider amending the proposed business rates holiday to benefit property owners with vacant premises by extending the current short exemption period while new tenants are found for those premises?
The noble Lord is right to say that we need to do more to support our high streets. That is why we have a £1 billion Future High Streets Fund. On business rates, the Government committed to and published the terms of reference for a fundamental review of business rates in the March 2020 Budget.
My Lords, I am grateful to the Minister for explaining that the Government are going to review business rates, which are part of this problem. Does she accept that the system of business rates, based on open market rental value, is effectively broken and that urgent action is required to reform the system?
My Lords, I declare my interests as set out in the register. I agree that property costs are a major issue for the retail and hospitality sectors. But as I have been saying for many weeks, the biggest concern affecting the ability of retail, including restaurants and pubs, to open economically is the two-metre rule. Perhaps I may press the Minister yet again for a speedy review of that and, over the longer term, as others have said, for a rebalancing of the business rates regime so that it bears less heavily and unfairly on physical outlets at a time of digital explosion?
The Government are very cognisant of the impact of the two-metre rule on businesses and it is kept under constant review. The biggest support we can give businesses is to bring transmission of the virus down. That will allow us to take steps forward out of lockdown, as we have been able to do with the opening of non-essential retail outlets today.
My Lords, with consumer confidence at its lowest for a decade, and with local convenience shops, which have been a lifeline for many during the lockdown, relying on the extra hours of trading time on a Sunday evening to keep them viable, what is the economic case needed for the Government to consider a change to the Sunday trading laws?
The noble Baroness will know Sunday trading laws are a topic that has come up numerous times both in this House and elsewhere. There is an economic case for changing them, which is being considered alongside other arguments related to cultural cases with regard to Sunday trading.
My Lords, it will take a long time for shopping to return to normal and shops will need help throughout. As well as providing the short-term cash and rates relief help needed to help tide shops and their staff over during the coming autumn and winter, when the Government undertake their fundamental review of business rates, will they include looking at changing their structure to a fairer one, based on the sites the shops occupy?
My Lords, there are currently two categories of business, among others, not covered by support. Those are B&Bs and hotels that pay council tax in lieu of business rates and businesses operating on industrial estates and in shared workplaces. My understanding is that neither category of business currently qualifies for support. Will my noble friend look kindly on them, in particular B&Bs and hotels, which until now have been so badly hit by the lockdown?
I can happily make a commitment to my noble friend to take that back. My understanding is that local councils have also been given money to fund additional discretionary grants to address those kinds of gaps, but I will take her specific examples back to the Treasury.
My Lords, does my noble friend agree that at this time it is important that commercial landlords should bear their share of the pain? Will she therefore institute a register of those landlords that sign up to the code of practice and fulfil their obligations under it so that in the future, when businesses look to choose which landlord to contract with, they will know who behaved well during this time of crisis?
That is an interesting proposal from my noble friend. At the moment, our focus for the code of practice is to ensure that tenants, commercial landlords and lenders all find solutions so that viable businesses are able to continue working while we deal with the period of lockdown. However, we may want to look at such things in the future.
Covid-19: Child Poverty
My Lords, in addition to the £5 billion increase in benefit rates from April 2020, this Government have introduced an unprecedented package of support of over £6.5 billion to help families on benefits cope with the financial impact of Covid-19. This has increased universal credit and benefited over 4 million of the most vulnerable households; it has increased the local housing allowance rate, putting an average of £600 into people’s pockets; there is a £16 million grant to provide food for those struggling; Defra has put £3.5 million into food charities; and on 10 June the Prime Minister announced a £63 million fund to local authorities for a local welfare assistance programme. The Government are doing everything they can in these difficult times.
My Lords, the pandemic is nevertheless having a disproportionate economic impact on low-income families, as child poverty grows and deepens. Last week, the official Social Mobility Commission warned that the Government urgently need to recognise that benefit cuts to families with children are increasing child poverty. On top of these cuts, including the two-child limit and the benefit cap, there is no extra weekly financial support for children during the crisis. Can the Minister therefore explain how these policies, which effectively discriminate against children, will help meet the manifesto goal to reduce child poverty?
I accept that the Social Mobility Commission report has highlighted some important poverty issues and gaps, but compared with 2010—notwithstanding the Covid-19 virus—there are 100,000 fewer children living in absolute poverty. We are taking action in 20 targeted areas to open up more opportunities and investing £90 million in activities to address disparities in youth unemployment. As for the benefit cap and all the important points that the noble Baroness has continued to make—and I have done everything I can to give her access to people to talk about it—I have no update other than has previously been given.
My Lords, sadly, my home city of Leicester has communities among the poorest in the country. Will my noble friend look at how she, with her colleagues in local government, can help support hard-working families who are furloughed and struggling to provide basic needs to their children by looking at reducing their council tax bills for 12 months after the pandemic has ended? It does not help that we have seen a more than 4% increase in council tax bills in Leicester, alongside other utility increases.
I am well aware of the situation in Leicester; there has been much in the press about it. The Government are absolutely committed to supporting hard-working families. While any reduction in council tax relates to MHCLG, I am pleased that the Government have provided significant funding to reduce council tax bills for a short period. I will write to the noble Baroness on that.
There are currently about 700,000 children with no access to internet facilities at home. On 20 April, the Education Secretary announced a £100 million fund to ease this problem. Can the Minister please tell me what percentage of this fund has been distributed and how many families there are left to help?
My Lords, as well as the Social Mobility Commission, the Minister could have cited the IPPR calculations that the pandemic could put 200,000 more children in poverty this year, the Trussell Trust figures showing the numbers of families with kids needing emergency food parcels twice as high as this time last year, or even the powerful open letter from Marcus Rashford today highlighting child hunger. I am sure the Minister is doing her best, but if the Government will not buy our proposals to suspend the two-child limit and the benefit cap, what is the Government’s alternative to stop more kids in Britain going hungry?
I am aware of the letter and the Trussell Trust figures the noble Baroness refers to, but we have put more money into helping with food poverty, as I have said before. We had an all-Peers briefing about universal credit at which the two-child limit and benefit cap were talked about at great length. I am sorry that I cannot add anything to that at the moment.
Half the total number of children in one-parent families are in poverty; the pandemic is disproportionately affecting these families. What specific measures will the Government take to improve the circumstances of these doubly disadvantaged children?
My Lords, our current focus is on supporting people financially through these unprecedented times. We are actively reviewing all measures at our disposal to identify how we can best support the economic recovery and ensure that the best possible employment support is in place. We will continue to look at these things. We understand the impact on single parents and lone parents, and I assure the House that the Government are doing everything they can at the moment to help in these difficult times.
My Lords, children in families with no recourse to public funds are at increased risk of facing poverty due to the pandemic. The increases the Government have announced do not offer support to the thousands of children whose parents have “no recourse to public funds” attached to their immigration status, making them extremely vulnerable to the pandemic’s effects. Will Her Majesty’s Government consider lifting the NRPF condition to protect children from poverty?
The changes we have made to the welfare system are part of a broader range of measures brought in across government to meet the need of those affected by Covid-19. We are doing all we can. The Home Office recently lost a judicial review case—not entirely on the subject of NRPF—but we continue to review the situation.
My Lords, we know that families in which two parents are working full-time are the least likely to be in poverty and that over the last few years there has been significant progress in supporting lone parents out of poverty, with a reduction in the number of lone parents in poverty. What steps are the Government taking to support lone parents during this time, when many on low incomes have been furloughed or had their hours reduced, and to protect fragile couple relationships—which we know have been under strain during Covid—to prevent a future impact on child poverty?
I have already mentioned the unprecedented fiscal package we have at our disposal to deal with this, but I would also like to talk about the Reducing Parental Conflict programme, which has a key role in supporting families during this challenging time. We are working with local delivery partners to ensure that the programme continues to be delivered during social distancing restrictions and being flexible and innovative in the ways we can reach families that require support to minimise the negative impacts of conflict on outcomes for children.
My Lords, others have referred to the troubling consequence of child poverty on children’s diets. The Minister says nothing more can be done, but the free school meal vouchers system ends in July, whereas the prolonged lockdown is now turning into the prolonged holiday. We need provision of free school meals and support for access to food, such as brunch clubs and breakfast clubs, all the way through to September. Why cannot the Government do what has been done in Wales and provide more such facilities for children in deprived areas here in England?
We are aware that the free school meal vouchers scheme is working for thousands of schools. I am pleased to say it has been reported that more than £120 million-worth of vouchers have been used. Under the benefits-related criteria, 1.3 million of the most disadvantaged children are eligible for and claiming free school meals. It is a matter for the DfE, so I will get my noble friend Lady Berridge to respond to that important point.
Arrangement of Business
My Lords, a limited number of Members are here in the Chamber, respecting social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Other Members will participate remotely, but all Members will be treated equally wherever they are. For Members participating remotely, microphones will unmute shortly before they are to speak—please accept any on-screen prompts to unmute. Microphones will be turned to mute after each speech. I ask noble Lords to be patient if there are any short delays as we switch between physical and remote participants. I should remind the House that our normal courtesies in debate still very much apply in this new hybrid way of working. Please ensure that questions and answers are short.
Black Lives Matter: Protests
Private Notice Question
My Lords, I understand the strength of feeling around the death of George Floyd and peaceful protest remains a vital part of a democratic society. However, coronavirus remains a real and present threat to all of us and mass gatherings for whatever reason risk spreading the disease. I condemn all forms of illegal activity. Changes to the urban architecture should be affected through democratic processes and not by criminal damage.
I thank the Minister for her response. Racism is deeply embedded, and it affects every part of society, including the Church. We all have much to do to confront it. Indeed, it is possible to remove statues from public places without dealing with the fundamental nature of the problem. Will another commission be any more successful in stopping the demolition of statues than the Lammy review, the Angiolini review, the Windrush Lessons Learned Review, and the review from the noble Baroness, Lady McGregor-Smith? Would it not be cheaper and quicker for Her Majesty’s Government to implement the recommendations of those reviews, committing proper resources and leadership to drive through the change we so desperately need?
The right reverend Prelate mentioned a number of reviews. I know that the Government are working through the Angiolini review’s recommendations. The review by my noble friend Lady McGregor-Smith also awaits comment. He is right that the Government are considering a number of recommendations. Overall, the strategic response to everything we have seen over the past couple of weeks is that we have to work together, not only in government but in society, locally and nationally, to affect the societal change that is so desperately needed.
My Lords, whatever one thinks of the merits or demerits of individual statues or the events of last weekend, those events highlight the living reality of racism in our country. Following on from her most recent answer, can the Minister assure us that the announcement of the Prime Minister’s commission into these matters will not delay the Home Office’s implementation of the reports on deaths in custody, the criminal justice system and Windrush, which are currently on her desk and which she has explained so well to us in the past? Can we have a categorical assurance that those will be implemented and not delayed pending publication of the Prime Minister’s cross-departmental report?
I thank the noble Lord for making that point. The Wendy Williams review has to be answered in a timely fashion and my right honourable friend the Home Secretary has committed to doing so. Wendy Williams was very clear in her recommendation that she did not want the Government or the Home Secretary to rush to respond but to reflect on the very good points she had made in her review. The Prime Minister’s commission will not in any way undermine the work that the Home Office is doing. The noble Lord talked about the review being on my desk. It is not on my desk, but we all share responsibility for it.
My Lords, monuments are intended to commemorate important and significant events in our history. Black history needs to be addressed. I am proud to chair the Windrush Commemoration Committee, which, under the auspices of the Ministry of Housing, Communities and Local Government, will unveil in 2022 a Windrush monument at Waterloo station, where thousands of Caribbeans arrived. There will also be an IT educational element to it, celebrating major contributions that Caribbeans have made to Britain. This must not be a one-off, so will the Government consider commissioning more such monuments, such as a national slavery monument, to document our history and demonstrate that black lives really do matter?
I commend the noble Baroness on all that she has done in securing a Windrush Day and on the work she has done on the Windrush monument at Waterloo to commemorate those people who arrived here to rebuild this country after the war. On a national slavery monument, I do not know whether the noble Baroness knows the International Slavery Museum in Liverpool—I bet she does. I am racking my brains to remember whether there is actually a statue outside it, but positioned as it is, in the very heart of a city built in many ways on slavery, it is a reminder to us all of why black lives matter.
My Lords, do not take down statues; take down racism. These were the words of Sir Geoff Palmer, Scotland’s first black professor and currently emeritus professor of life sciences at Heriot-Watt University. I agree with these sentiments and believe that the statues should remain, but they should have a clear description attached detailing the contributions made by the subjects and how they achieved their wealth and status. When I worked as a young surgeon in Ghana in the 1970s, I was struck by a bust of Queen Victoria on a pedestal in Victoria Park in Cape Coast—the very place where slaves left to go to America. Ghanaians may have many reasons for wanting to remove the bust of Queen Victoria—a queen who represented Britain at the height of its imperial power. That statue remains because it is part of Ghana’s history. We should leave the statues where they are but explain why they are there. Will my noble friend undertake to do this?
I wholeheartedly agree with my noble friend. To take things down is to erase history, and erasing history is absolutely not what we should be about in educating our children about the misdemeanours of the past, as well as the great things of the past—the people who built our country. He is absolutely right: we should take down racism but not legacies of our history, which seek to educate us all. I pass many statues in and around Westminster. Some of them are offensive to me. I understand why others are there and they are a learning point for history.
I agree with those who say that we should not attempt to erase history, but our public spaces, just like our curriculum, our cultural narratives and our public institutions, reflect only a partial history of Britain. Protestors are not trying to forget that; rather, they are demanding to be remembered. This morning, the PM wrote that he will resist with every breath in his body the editing or photoshopping of history, but perhaps the Minister will acknowledge that the most egregious editing in the last week was not the removal of the statue of a slave trader in Bristol but the Government’s decision to delay publishing the Public Health England recommendations that found that systemic racism and inequalities led to excessive deaths of BAME Britons from Covid-19.
My Lords, I cannot concur with the noble Baroness. This Government have acted on the advice of scientists. Any life that is lost is a life too many, and this is a novel virus that has affected some communities more than others. We are still trying to understand why, but we should not conflate that with addressing where the roots of racism lie in our country, because there is no doubt that the events of the last two weeks have not just happened randomly. There is a deep-rooted feeling of inequality in some communities in this country.
My Lords, can the Minister see that for both sides of the argument on the removal of statues, every day that the statue of Winston Churchill remains boxed up is a day when the banner of anarchy is raised over Parliament Square? Does this direct action on statues not echo horribly the fascist days of Islamic State, when it attacked the city of Palmyra and publicly decapitated the archaeologist in charge? Has the Minister read the compelling speech by the young American black activist Candace Owens, on the appalling murder of George Floyd?
I confess that I have not read it, but my noble friend is right to point out that we can all think of attempts through the ages to erase culture and history for various reasons. The boxed-up Churchill is such a sorry sight. I understand that it was boxed up for its protection against some of the protests at the weekend. The sooner the Churchill statue is freed and he is commemorated once again as one of the greatest people who ever lived, the better.
As the right reverend Prelate said, the Government do not lack information on the reality and impact of the racial discrimination which has driven the recent peaceful protests, as opposed to lacking the determination to act with speed on that information. If the Government reject this view, can the Minister say what specific action to address racial discrimination has been taken as a result of the release of data from the Government’s own racial disparity audits over the last two and three-quarter years, and what has been the impact of that action on reducing racial disparities and discrimination?
My Lords, we certainly do not lack a determination to act. As I said, the Home Secretary is committed to addressing the Wendy Williams report by the appropriate date, having given it full thought and consideration. In terms of disparities, we collect more data than ever before—including search data, the race of the person searched, what was searched for and how often objects were found—in each force. That data is published online, allowing local scrutiny groups, the PCC and others to hold forces to account, and we discuss it with the relevant NPCC leads. In terms of race disparity, the previous Prime Minister was the first to publish the Race Disparity Audit, which has helped immeasurably in the Government committing to looking after their own back yard in improving race disparity across the piece in government.
My Lords, it is ironic that the removal last week of the statue of slave trader Edward Colston has provided more information about Britain’s role in the Atlantic slave trade than any history lesson in our schools. I have not heard any political party asking for the removal of statues. The Prime Minister has said more about Churchill’s statue than he has about the number of BAME people disproportionately dying of Covid-19 and the racism they face, which has already been mentioned by the right reverend Prelate and in all the reviews that have taken place, the recommendations of which the Government have singularly failed to implement. To demonstrate the Government’s said commitment to eradicate racism and address the concerns of Black Lives Matter, will the Minister recognise that the recommendations in the Covid-19/BAME review need to be fully implemented, as does the report by the noble Baroness, Lady McGregor-Smith, on workplace discrimination, which is now three years old? Will the Government also do more to make sure that all schools address the vacuum regarding Britain’s colonial history, which will help to ensure that black and minority ethnic children and young people understand their history and their sense of identity in this country?
My Lords, as far as I am aware, no political parties are asking for statues to be removed, but some of them have talked about a democratic process for removing them. The point is, it is a democratic process. The noble Baroness’s comments go to the heart of the problem, which is that the criminal damage done has completely taken away from what we should be discussing: our history and educating children. This country is one of the best in the world in which to live. But making that understanding should be much more a part of a child’s education.
Arrangement of Business
My Lords, a limited number of Members are here in the Chamber, respecting social distancing. Other Members will participate remotely, but all Members will be treated equally, wherever they are. For Members participating remotely, microphones will be unmuted shortly before they are to speak, so please accept any on-screen prompt to unmute. I ask noble Lords to be patient if there are any short delays as we switch between physical and remote participants. I remind the House that our normal courtesies in debate still very much apply.
Extradition (Provisional Arrest) Bill [HL]
My Lords, I shall begin by setting out how these proceedings will work. A participants’ list for today’s proceedings has been published and is in my brief, which Members should have received. I also have lists of Members who have put their names to the amendments, or expressed an interest in speaking, on each group. I will call Members to speak in the order listed. Their microphones will be muted by the broadcasters except when I call them to speak. Interventions during speeches, or at the end of speeches using the words “before the noble Lord sits down”, are not permitted, and uncalled speakers will not be heard.
Members other than the mover of an amendment or the Minister may speak only once on each group. Short questions for elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
Debate will take place on the lead amendment in each group only. The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press to a Division an amendment that has already debated should give notice of that in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make that clear when speaking on the group. We will now begin.
The Schedule: Power of Arrest for Extradition Purposes
1: The Schedule, page 3, line 15, leave out from beginning to end of line 19 and insert—
“(3) The person must be brought as soon as practicable before the appropriate judge (see further, section 74D).”Member’s explanatory statement
This amendment requires a person to be brought before the appropriate judge as soon as practicable after arrest. The Bill currently requires this to happen within 24 hours. The Minister’s other four amendments are consequential on this amendment.
My Lords, before I begin my speech on this amendment, I would like to note that this is a historic moment. This will be the first opportunity, in history, to vote remotely in the House of Lords.
The Government have tabled Amendment 1 regarding the 24-hour time limit for the arrested person to appear before a judge. Amendments 4 to 7 are consequential upon that main amendment. These amendments seek to replace the 24-hour time limit with “as soon as practicable”, which reflects current practice under Parts 1 and 2 of the Extradition Act 2003.
At Second Reading, in Committee and on Report, there was considered and stimulating debate in this House on the requirement under the Bill regarding the time limit within which a person arrested under this power should be put before a court. As noble Lords know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003 as currently written or as amended by the Bill, are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland, and Belfast magistrates’ court for Northern Ireland. Currently, a person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, if this amendment is not made, that must occur “within 24 hours”.
The Bill was originally drafted in that way to strike a balance between getting arrested individuals before a court as quickly as possible and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before the appropriate judge within 48 hours of arrest. However, I am conscious that this drafting departs from the general requirement that is currently imposed on the police after they make arrests under the other existing powers in the Extradition Act 2003.
I have listened carefully to the concerns raised at Second Reading and in Committee and have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act, and that it should therefore mirror the wording “as soon as practicable”. That will ensure that individuals are not detained for any longer than is strictly necessary before being put before a judge. If, for example, an individual was arrested in central London, “as soon as practicable” would in all probability be considerably less than 24 hours. Our operational partners have already proved themselves very effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the “as soon as practicable” requirement.
Additionally, if an individual is arrested and for legitimate reasons it is not possible to get them to court within 24 hours—for example, if they are arrested in a remote part of the UK or in an area affected by an extreme event—this change in wording will make the legislation operable across all parts of the UK in all circumstances.
Accordingly, I am introducing a government amendment to that effect to address the concerns expressed about this important issue both by noble Lords and by operational law enforcement partners. Although the language does not explicitly rule out production on weekends or bank holidays, these factors will of course be relevant to the practicability of bringing an individual before the appropriate judge. If public holidays or court opening times were to change in the future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person will be brought before a judge sitting in court, so court sitting times, which are determined by the judiciary, will be relevant to the concept of “as soon as practicable”.
There might of course be a multitude of other factors, such as geographical distance, natural disasters or illness of the arrested individual, that affect, in the individual case, the practicability of bringing an individual before a judge. Therefore, we continue to think that it is right that the judiciary are the arbiters, in the individual case, of whether this test of “as soon as practicable” is met, and they will be able to do so in determining any application for discharge under Section 74D(10).
I previously gave an undertaking to formally confirm that the Government intended to move this amendment today. It has the same overall purpose and effect as the one that the noble Baroness, Lady Hamwee, tabled on Report. I hope that noble Lords will be able to join me supporting this amendment. I beg to move.
My Lords, I am grateful to the Minister for pursuing this issue. We raised it at the early stages of the Bill, and I am grateful to my noble friend Lady Ludford for continuing the argument on Report. I should also acknowledge today the critique of the Bill at Second Reading by the noble and learned Baroness, Lady Clark of Calton—I know that she discussed it subsequently with the Minister. She said then:
“There is nothing provisional about the consequences of being arrested.”—[Official Report, 4/2/20; col. 1743.]
Her remarks prompted me to think about the provisions of new Section 74A, taking account of weekends, bank holidays and so on. It was that—the extension from 24 hours to over a weekend or, in the case of Easter, even four days —which caused me to pursue the matter in Committee. That Committee marked the first outing of the noble Lord, Lord Parkinson of Whitley Bay; I hope he feels some sense of achievement for his part in this. He explained that it was the Government’s intention to replicate the existing provisions of the Extradition Act. That, of course, drove me to the Act and to this amendment; the Minister, as she said, agreed to bring the matter forward at this stage.
I note that, in the papers for today’s proceedings, the Minister’s explanatory statement refers to the 24-hour period, which, if it had stood alone without the possibility of extension, could have been acceptable, but I agree with her that it is right to have consistency throughout the Act. I confess to a bit of continuing anxiety, and not just about consistency within the Act. I have to say I was fairly confused when I came to look at the Act; it is a mighty beast. The Minister explained on Report, and I mention it today, that the original drafting was to achieve a balance between getting the arrested individual before a judge as quickly as possible and allowing the police sufficient time to gather supporting information. It is the latter that concerns me. The police must have the information to make the arrest, so what more is needed? Can the Minister expand on that when she winds up?
I am also slightly anxious because, inevitably, a fixed time period is clearer—it is much more easily enforceable; but that is a concern about the 2003 Act more broadly. I was reassured at earlier stages by the two very eminent noble and learned Lords, with their experience as two of the most senior members of the judiciary, who spoke about the 24/7 availability of judges. What is practicable now—as the Minister has explained in talking about geography and so on—is much more than a few years ago. I am very happy from our Benches and virtual Benches to support the amendment.
My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the purpose of the amendments in this group, all of which are in her name. I am content with the explanation she has given, which is clear; the intent is sensible, practical, proportionate and, as noble Lords have heard, consistent with wording used in similar relevant legislation. On that basis, I am happy to support the amendments today.
My Lords, I have a question to which others may know the answer; forgive me if it is widely known. The Minister said in relation to Scotland that the court applicable was Edinburgh Sheriff Court. Can she let us know why Edinburgh Sheriff Court in particular was chosen, and why only Edinburgh Sheriff Court? Scotland is a very large country stretching from the border with England right up to Shetland. I wondered whether there might not be some practical problems if only Edinburgh Sheriff Court was applicable. So, what was the criterion and why only Edinburgh?
Amendment 1 agreed.
We now come to the group consisting of Amendment 2. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to Division should make that clear in the debate.
2: The Schedule, page 4, line 38, at end insert—
“( ) The Secretary of State may only make regulations under subsection (7) if the following conditions are first met—(a) the Secretary of State has consulted on the merits of the change with—(i) each devolved administration, and(ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest,(b) the Secretary of State has laid an assessment before each House of Parliament on the risks of the change, and(c) if the regulations are to add a reference to a territory to Schedule A1, the Secretary of State has laid a statement before each House of Parliament confirming that the territory does not abuse the Interpol Red Notices system.”Member’s explanatory statement
This amendment would create further requirements before adding, varying or removing a reference to a territory.
My Lords, Amendment 2 in my name would insert the new subsection as detailed in the Marshalled List. The amendment requires certain conditions to have been met before the Secretary of State can make a regulation under new subsection (7) to either add, remove or vary a reference to a territory. This proposal is both reasonable and proportionate and should present no problem to the Government. It should be accepted willingly today.
It is important to note that nothing in my amendment stops the Government doing what they want to do. It goes through a process; that is all—a process of consultation and assessment. Where the proposal is to add a territory, it requires a statement confirming that the territory does not abuse the Interpol red notice system. The first part of the amendment places a requirement on the Secretary of State to consult on the merits of the change. There are two groups in the consultation proposed here: first, the devolved institutions, which can be a source of valuable information relevant to changes being proposed, and, secondly, non-governmental organisations which in the opinion of the Secretary of State have a relevant interest. Discretion is given to the Secretary of State here but, equally, the Secretary of State has to act reasonably. They will not be able to get out of consulting appropriate organisations; they will get themselves into all sorts of difficulties if they attempt to do otherwise.
My amendment requires that, after the consultation, an assessment be laid before Parliament of the risks of the proposed changes and, finally, that where the proposal is to add at a territory, the territory does not abuse the Interpol red notice system. There is considerable evidence that some jurisdictions abuse that system. I hope that we would not want to deal with such countries on future extradition agreements. I know that a number of my noble friends will shortly speak specifically about abuse of the Interpol red notice system. I beg to move.
My Lords, I support Amendment 2 in the name of my noble friend Lord Kennedy of Southwark. The amendment would put in place a process to properly consider and then stop extraditions to countries that abuse human rights. It would require consultation, a risk assessment and a statement by the Home Secretary before any new or amended treaty was agreed.
Clearly there are times when treaties need to be, or indeed should be, amended. For example, in its current state the US/UK extradition treaty does not offer confidence to British citizens that they will not be surrendered to the US, when the British justice system is both qualified and able to try relevant cases here without prejudice. I hope the Minister will agree that this is an area in need of urgent reform. When the Government make reforms of this nature, as I hope they will in this case, consultation and parliamentary scrutiny, as outlined in the amendment, are therefore critical.
The amendment would also ensure consultation with the devolved Administrations. There is a strong case for this as there will be certain powers in these Administrations relating to justice, policing and prisons that need to be considered.
Respect for human rights must be a priority consideration when changing or entering into a new treaty. The NGOs have direct experience of the countries concerned. They understand better any issues that arise from individual territories, especially regarding human rights records. They need to be consulted, which is what the amendment seeks to do. It would open up the decision-making process. Being transparent about why decisions were taken about individual countries, and allowing proper parliamentary scrutiny of those decisions, will build trust and confidence in our extradition system.
I turn to red notices. Time and again, international organisations continue to report the widespread abuse by some states of red notices for political ends—for example, to persecute human rights activists, refugees or critical journalists. This violates international standards and human rights. The Government should therefore be mindful of those countries that abuse red notices. Through the guarantees given in the amendment, the Government would signal that they recognised that red notices from countries that abuse the system have no legal value, and would show that, as a country and as a Government, we will help to protect those individuals targeted by such countries that abuse the system. I hope the Government will agree to support the amendment.
I am very happy to support this excellent amendment moved by my noble friend Lord Kennedy. I hope that if the Government do not accept it, he will press it to a Division.
The first aspect of the amendment is, as my noble friend Lady Kennedy has just spoken about, consultation with the devolved Administrations, an issue that I will come to in a moment, but also, rightly, with NGOs, as my friend also said. I had a lot of dealings with human rights NGOs and those involved with press freedom when I was general rapporteur on media freedom and the safety of journalists for the Council of Europe, and I found them very helpful for knowing up-to-date information about each country that we dealt with.
As far as the devolved Administrations are concerned, there is—with no disrespect to the noble Baroness, Lady Williams—an awful lot of talk of consultation but very little real, meaningful consultation with the devolved authorities. For example, on Covid recently, the Prime Minister talks about consulting but for a month now he has not chaired a meeting of COBRA in which the First Ministers have been involved. That is not the consultation that could be taking place, so we have to write it into legislation. The Joint Ministerial Councils, which ought to be working, are not working effectively, while the European arrest warrant was abandoned by this Government in spite of objections from the Scottish Government and other devolved Administrations. Consultation must be written into this.
The second reason I strongly support my noble friend Lord Kennedy’s amendment relates to the red notice system. I want to mention the terribly tragic death of Harry Dunn at the age of 19, with his whole adult life ahead of him, in a hit-and-run accident. It was really terrible. The driver of the car, Anne Sacoolas, an American citizen, the wife of a diplomat, escaped justice by fleeing from the UK back to America. That was disgraceful. Her diplomatic immunity itself was very doubtful. Can the Minister confirm that an Interpol red notice has been issued in relation to Ms Sacoolas? I think the Prime Minister has said that she should return, but what are the Government doing to insist on that and take action?
For those two reasons, I strongly support the amendment. As I say, I hope my noble friend will take real courage in his hands and call a Division on this matter if the Government refuse to accept his very strong and persuasive arguments.
My Lords, in Committee on 5 March the Minister said:
“The Government have no intention of specifying countries likely to abuse the system to political ends”—
that is, the Interpol system. Obviously, that was an important pledge, but it does not conflict with the need for Amendment 2 in the name of the noble Lord, Lord Kennedy, with an assessment of the risks and a statement confirming that the territory does not abuse Interpol red notices.
I also agree that devolved Governments and NGOs should be consulted. Fair Trials International, of which I have been a patron for two decades, has long campaigned to ensure that Interpol does better at filtering out abuses of its system before information is sent out to police forces across the globe. When abusive “wanted person” alerts slip through the net, victims should have redress through an open and impartial process. There is no court in which to pursue an appeal. Fair Trials has highlighted shocking cases of injustice and the devastating impact that these alerts can have on those affected. Bill Browder has said that your life as a human being is over.
Fair Trials has helped dozens of people who have been subject to abusive Interpol alerts from countries including Russia, Belarus, Turkey, Venezuela, Egypt, Sri Lanka and Indonesia. FTI has also worked constructively with Interpol to develop realistic reform proposals. It held a positive meeting with Interpol’s secretary-general, Jürgen Stock, to discuss reforming the red notice system.
In the context of mounting political pressure for reform, changes were introduced in 2015, when Interpol announced that it had taken the first steps towards implementing reforms, including the introduction of a new refugee policy. Then, in 2017, Interpol introduced a number of further reforms, including greater independence, influence and expertise of the supervisory authority, the CCF; better transparency and respect for equality of arms; reasoned and public decisions on individual cases; and a working group to review red notice operations.
The Minister said, again on 5 March, that
“the UK is currently working with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.”—[Official Report, 5/3/20; col. 364GC.]
Can she tell us any more about what further changes and reforms have been introduced since 2017 to prevent abuse? Although that is essential, I still hope that she can tell us that she will accept Amendment 2.
My Lords, I cannot imagine that the Minister is going to tell us anything other than that the Government would consult the appropriate authorities before exercising the power under paragraph 7 of the Schedule, so the obvious question is: if the Government are committed to consulting, why will they not put it in the Bill, given the extent of the concerns that have been raised?
My Lords, I too support the amendment of the noble Lord, Lord Kennedy of Southwark, but with one reservation about where it can be strengthened in relation to NGOs. The noble Lord, Lord Foulkes of Cumnock, has just spoken convincingly about their importance. In proposed new sub-paragraph (a), the amendment reads that the Secretary of State should consult
“on the merits of the change with … (ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest.”
For me, this gives the Secretary of State carte blanche to consult or not, as he or she thinks fit. It might be better to add: “iii) those non-governmental organisations which have made representations to the Secretary of State.” That said, I still support the amendment.
My Lords, I support my noble friend Lord Kennedy’s amendment as it would add to the system of fairness and justice, since a further check and balance would be written into the Bill. It ensures that the territory in question would not abuse the Interpol red notices system. As noble Lords will know, a red notice is a request by Interpol on behalf of one member state to all other member states to locate a suspect or convicted person, and take steps to facilitate their surrender to the requesting state. Extradition proceedings then follow.
However, not every country treats red notices as a valid warrant and the legal effect therefore currently differs between states. In February 2019, the European Parliament published a study that examined abuse by some states of Interpol’s notice system to persecute national human rights defenders, civil society activists and critical journalists in violation of international standards of human rights. The study, entitled Misuse of Interpol’s Red Notices and Impact on Human Rights—Recent Developments was commissioned by the European Parliament’s sub-committee on human rights. The study acknowledged that the reforms implemented in 2015 have improved the situation. However, abuses of the Interpol system against individuals, including refugees, continue.
There is still a lack of established rules and procedures to govern the vetting process and adherence to Interpol’s constitution. It is therefore of utmost importance that we in this House have the opportunity to finesse and refine the statute so that weaknesses in established systems are not exacerbated by any vague legislation coming from this House. I therefore support my noble friend Lord Kennedy’s amendment.
My Lords, in this amendment the noble Lord, Lord Kennedy, has successfully combined a number of issues raised during the passage of the Bill. As noble Lords know, it is very difficult to resist even an affirmative instrument. That is the reality of the system, so it is particularly important that the Government are transparent and inclusive.
I went back to look at the Delegated Powers memorandum and realised—I had not noticed this before—that we are told as part of the justification for taking the power that a
“response to changing circumstances”—
which I will come to—
“provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example, if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation.”
We had quite a bit of debate at the beginning as to whether the Bill is really preparing for us not being part of the EAW system, so there will be some interesting debates to come as territories are added.
As a member of the EU Select Committee, I have had the opportunity of hearing the Chancellor of the Duchy of Lancaster mention this on a number of occasions. He said that what is important is to preserve our sovereignty, matters of proportionality and the state’s readiness for trial. As I say, there will be quite a bit to discuss as we add other countries.
The delegated powers memorandum also says:
“in the unlikely event of a deterioration in the standards of the criminal justice system of a specified category 2 territory, it is likely to be appropriate to remove”
it; well, the United States has been mentioned already by the noble Baroness, Lady Kennedy of Cradley. I suppose the answer to that is in the question of deterioration, because there are plenty of concerns about its processes now.
The House will be aware of our enthusiasm for consultation. I know that they do not claim this, but the Government do not have the monopoly of wisdom. Like other noble Lords, I am often very impressed by the knowledge that NGOs have. My noble friend Lord Paddick raised this point. I hope the Minister can confirm that, in legislation-speak, the Secretary of State’s opinion must always be a reasonable opinion and can be challenged on the basis that it is not reasonable.
I tabled an amendment in Committee to the effect that the designated authority—in our case, the NCA—must be satisfied that the request is not politically motivated. The Minister responded carefully and in detail, and I was grateful for that. The Committee was then reminded that the Extradition Act has safeguards in respect of requests motivated by a person’s political views. I want to make a distinction between that amendment and the one in the name of the noble Lord, Lord Kennedy, which is about the abuse of the red notice system. I think that is different; it is to do with the requesting territory’s approach on a wider basis. I hope that the House will accept that the narrower amendment has been disposed of, as it does not deal with the wider point. From our Benches, we support the amendment.
My Lords, I thank noble Lords who have spoken to this amendment. Amendment 2 deals with the proposed statutory requirements for a consultation, the laying of statements before Parliament setting out the risks of any amendment to add, vary or remove a territory to the Bill and, in the case of additions, confirming that a territory does not abuse the Interpol red notice system prior to laying any regulations which seek to amend the territories subject to the Bill.
The Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territories should come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will, of course, be accompanied by an Explanatory Memorandum that will set out the legislative context and the policy reason for the instrument. This procedure will give Parliament the opportunity to scrutinise proposals and allow the House to reject any proposals to add, remove or vary any territory to, from or in the Bill. The reasoning put forward will need to satisfy Parliament that the territory in scope does not abuse Interpol red notices or create unacceptable risks.
While extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice. They would of course engage with them as a matter of good practice were any secondary legislation to be introduced in relation to it. Similarly, several relevant NGOs and expert legal practitioners have been consulted by officials in the normal way; this answers the questions of the noble Baroness, Lady Ludford. All external stakeholders are able to make direct contact with parliamentarians so that their views are included in all debates connected with secondary legislation associated with the Bill, as they have done during its current passage by contacting several noble Lords in this House.
A number of noble Lords, including the noble Baronesses, Lady Hamwee and Lady Ludford, talked about the abuse of Interpol channels. I will expand on that a bit. In arguing that maybe a power should not be enacted, given previous abuse of Interpol channels by some hostile states, the noble Baroness, Lady Ludford, cited the case of Bill Browder. International organisations like Interpol are critical to international law enforcement co-operation and are aligned with our vision of a global Britain. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, which I was delighted about. It is the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol notices and diffusion task force, to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.
In terms of the specification of non-trusted countries, the power will be available only in relation to requests from the countries specified in the Bill—countries in whose criminal justice systems we have a high level of confidence, and that do not abuse Interpol systems. The Government will not specify any country that is not suitable. The addition of any country must be approved by both Houses, and I trust that neither House will be content to approve the addition of a country about which we have concern.
I will try to make it easy for the House, because we will now have our first ever virtual vote in the House of Lords. I understand that noble Lords would like to divide on this, and I hope that they will join me in resisting the amendment.
My Lords, this has been a good short debate. I thank my noble friends Lady Kennedy of Cradley, Lord Foulkes of Cumnock, Lady Wilcox of Newport and Lord Adonis, as well as the noble Baronesses, Lady Ludford and Lady Hamwee, and the noble Lord, Lord Paddick, for their support. All noble Lords carefully set out the need for this amendment in a most convincing way. I am not persuaded by the response of the noble Baroness, Lady Williams of Trafford, which I found disappointing. I will not disappoint her, and I will make it very clear that I certainly wish to test the opinion of the House in this first ever virtual vote.
3: The Schedule, page 4, line 38, at end insert—
“( ) Regulations made under subsection (7)(a) shall designate no more than one territory.”Member’s explanatory statement
This amendment would require regulations which add, vary or remove a reference to a territory under Schedule A1 to contain no more than one territory. This will allow Parliament to reject a particular territory.
My Lords, the noble and learned Lord, Lord Judge, has added his name to Amendment 3, as the noble Lords, Lord Kennedy and Lord Anderson, did to a similar amendment at an earlier stage. I am grateful to my noble friend Lady Ludford, who dealt with the matter on our behalf on Report, when, with the leave of the Minister, it was agreed that it be taken at Third Reading.
We often hear from the mover of an amendment: “This is a simple amendment.” Often, it is not quite that simple, but I believe this one is straightforward. When the Secretary of State lays regulations under new Section 74B(7)
“to add, vary or remove a reference to a territory”—
it is the addition that is the issue here—those regulations should apply only to a single territory. What I hope makes this simple to noble Lords is that there is nothing to prevent several instruments, each relating to one territory, being laid at the same time so that several territories can be specified within a matter of minutes of each other. But the crux is that Parliament should be able to reject one territory while happily accepting others.
In Committee, I used the examples of the Netherlands, a country which we respect, and Turkey, whose human rights record has regressed. I will use another pair today. I couple them only to distinguish between them: Sweden is a country we admire; Venezuela is one we do not, in this regard. If Parliament is presented with the choice of rejecting Sweden from the system because it wants to reject Venezuela, or accepting Venezuela because it wants to accept Sweden, how can Parliament possibly do the job we are all here to do when faced with an SI which is not amendable? The Minister has said previously that she would not present an SI that includes a country whose extradition requests we could not have confidence in due to their human rights record and would risk Parliament refusing extradition arrangements with a country that respects the rule of law. What the noble Baroness as an individual Minister might do is not the issue. I do not for a moment challenge her as an individual. This is a matter of system and procedure, not for an individual.
The previous amendment, which has just been agreed, referred to political motivation, and we must all be aware of the different criteria that different countries apply to the decisions they take as a state. Given the issues around relationships with countries regarding arms sales, for instance, is it any wonder that noble Lords are concerned about extradition to a country whose values, including valuing human life, are not our values?
The shortcomings and difficulties in procedures for dealing with secondary legislation are not a new point, but the fact that no amendments are possible is the most relevant one today. But, for once, we have a solution, which is to deal with these proposals one country at a time. I cannot understand an objection which seems to amount to no more than “It wasn’t invented here” or “not common practice”, to use the phrase used in Committee.
I need say no more, as I know that other noble Lords will contribute to the debate. Unless the Minister concedes, which I do not expect, I will test the opinion of the House, but for the moment I beg to move.
My noble friend Lady Hamwee has covered the strong case for this amendment and, to be quite frank, I cannot see on what grounds the Government can resist it. There is no good argument on administrative, parliamentary or human rights grounds not to have one territory per SI, so that Parliament can carefully discriminate between those territories where we are happy to have a law enforcement relationship and those that are, quite honestly, unreliable.
The way that the Government have resisted this improvement throughout the passage of the Bill in your Lordships’ House raises some concerns. Those are not linked, as my noble friend said, to the person of the Minister, but to any and every Government. We know that there will be pressures on this country, which has chosen—wrongly, in my opinion—to exit from the EU and make itself vulnerable to pressures in the context of seeking trade agreements. Those pressures are being discussed in a lively way, as they were last Wednesday in our Second Reading of the Agriculture Bill, when we discussed chlorinated chicken, hormone-treated beef and so on, and one can foresee similar kinds of pressures when countries seek favours from the United Kingdom in order to give us a trade concession. It would be all too tempting for a current or future Government to throw in a favour in a completely different area, such as law enforcement co-operation, in order to win a point for one economic sector or another in a trade deal.
In order to stop any such development in its tracks, it is completely reasonable to ask the Government simply to let Parliament decide on a country-by-country basis whether we want to add them to this system of provisional arrest. The onus is really on the Government to convince this House why it is reasonable to lump them together and not allow us to decide territory by territory, which is the obvious way to proceed.
We need a sensible extradition regime, and at the moment we have one. I strongly support it and nobody can think of a single reason why we should not work in a mutually acceptable way with territories, as the Act calls them—or countries, as ordinary people call them—that we trust: those we trust, those we trust to trust each other and those who we are confident will abide by the ordinary rules when seeking extradition of British citizens and vice versa. We all work together.
In this particular situation, as the noble Baroness, Lady Ludford, just said, we have a Government who would produce a list of countries or territories with which we would all be happy, and, bingo, the affirmative resolution is passed and we all go away happy, and for myself I cannot imagine that a Government led by Sir Keir Starmer would be any different. But the future is long, and the problem is that, undoubtedly, the time may come—I am not saying that it will, and I hope that it never does—when a Government seek a favour from this country or we seek a favour from them. An example might be, “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” I can also envision the possibility, not immediately but not so remotely either, of a Government of the day wishing to associate themselves with a country that shared that Government’s political views but was nevertheless not a desirable country with which to have these arrangements.
As the noble Baroness, Lady Hamwee, has just explained, we have this ridiculous situation where affirmative resolutions cannot be amended—you either take the package or you lose it. Parliament could be faced with this situation: there could be a list of a number of countries with which it was entirely desirable and sensible to have a mutual arrangement plus one other, with which it would be extremely undesirable to have such an arrangement. What would happen then? Do we reject the territory and country that we think it would be totally inappropriate to have such arrangements with and therefore lose similar arrangements with all the desirable countries, or do we simply keep all the countries we think it would be a good idea to have and include the other one, although it is undesirable? That is a ridiculous situation, and the amendment is designed to avoid such an absurdity. As the noble Baroness, Lady Hamwee, has already said, and I emphasise, the amendment proposes an utterly simple, totally uncomplicated system. It may cost the department a few more pages of paper, but not that many, and it may take a fraction more time, but it would be time valuably used. Statutory instruments should always be limited to one country.
The second reason I support the amendment has already been touched on. Through the passage of this legislation, from the beginning to where we are today, this House has raised this issue time and again. We have never yet been given a single good reason why the proposal in this amendment is unacceptable, would create difficulties for the extradition regime or would be unworkable. The Minister has not invented any spurious reason for that, for which we are of course grateful and unsurprised, but there are no reasons. No reason has yet been given. As a matter of common sense, as well as on a sound constitutional basis, the amendment has never been contradicted by a reasonable argument and should find favour with the House.
My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.
It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.
My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.
This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.
My Lords, as the noble Lord, Lord Paddick, said, the simpler the amendment, the more repetitious we become. But I want to go back to 2003, which was mentioned by the noble Baroness, Lady Hamwee, in the debate on the previous amendment, and to the Act that I piloted through, with the support of an excellent Home Office team. The noble Baroness called it a “mighty beast”, which it was; it was extremely difficult, as were other mighty beasts of that year, including the Criminal Justice Act, the Proceeds of Crime Act, the Sexual Offences Act, and the Domestic Violence, Crime and Victims Act. When I look back on those days, I wonder when any of us slept. We were, quite rightly, taken to task: we leaned on legislation too quickly.
However, in a simple amendment such as this one, we have clarity of thinking, as the noble and learned Lord, Lord Judge, indicated, and as the noble Lord, Lord Anderson, reinforced. There is a simple, clear reason why, 17 years on from the original Extradition Act, we should take this sensible step, which avoids the Government not being able to carry an order for countries with which we would be extremely pleased to have extradition arrangements because another country listed is unacceptable to us. Turning it on its head, on the danger of agreeing a country that we do not wish to have an extradition agreement with, and being unable to get Parliament to agree to an order that it would otherwise want to go along with, it makes absolute sense for the Government simply to concede.
I repeat what I said last week: I have a great deal of respect for the Minister. I hope that, even at this late stage, texts might be going from her staff to the Home Secretary to say, “Please give permission to concede on this, because we oppose it for no good reason whatever”.
My Lords, I support Amendment 3, tabled by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge. As noble Lords have heard, this issue has been considered by the House as the Bill has made its progress through the various stages. What is proposed here today is simple, effective and, I contend, good government.
Surely it must be right that when we are designating countries that we wish to form an extradition agreement with, after the detailed work has taken place, Parliament should have the opportunity to accept or reject the designation for an individual territory. Parliament generally, and this House in particular, does not often vote down regulations. We may pass Motions to Regret or debate the merits of what is proposed, and many may express deep reservations, but fatal Motions are very rare.
This amendment is important; it is good practice and what good government should be all about. It guards against this or any future Government, of whatever political persuasion, seeking to group together a number of countries and push them through en bloc where, for example, nine of the 10 countries proposed have good reputations, a good track record and respect for the rule of law, do not persecute dissidents, do not abuse human rights and do not abuse Interpol red notices, but the remaining country has a more questionable record on one, or a number of, the issues I have raised. In such a case, it would be wrong for the Government to try to force through an agreement under the cover of Parliament not wanting to reject the other territories, and would give the country about which questions have been asked some form of protection that it does not deserve, making the approval a fait accompli. Parliament should, in all circumstances, guard against that.
If passed, this amendment would allow Parliament, on the rare occasion that it rejects regulations, to do so quite clearly on the record of the individual territory that the Government propose to sign an agreement with. That is right, proportionate and the sensible way to deal with this important part of public policy; no other agreement will be put at risk. It is good government, and I hope noble Lords will support the amendment if it is put to the vote.
My Lords, on previous occasions this House has spoken at length on the question of what constitutes appropriate parliamentary scrutiny, in the wider sense, in relation to the addition of any territory, and has just done so again on Amendment 2. I will now expand further in addressing Amendment 3, in the names of the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, which seeks to mandate that this be done by individual statutory instrument for each suggested country.
I was slightly dismayed to hear noble Lords talk about mutual extradition arrangements because, as I have clarified on several occasions, this has not, and never has been, about mutual extradition arrangements. We do not do this on behalf of other countries, and if, for example, we did it on behalf of Turkey, the courts would throw it out—even if the Government could get it through Parliament, the courts would throw it out.
When this issue was debated in Committee, it was pointed out that statutory instruments that seek to specify new territories are not amendable. Some feel that this may create a difficulty for this House if regulations were laid which sought to specify multiple countries. As I have said before, the process of potentially listing multiple countries already exists for adding territories to both parts of the Extradition Act 2003.
It was further pointed out that there are countries in the world which do not respect the rule of law and a concern was raised that a future Government may seek to add such countries to this legislation, countries that this House and the other place together may think it inappropriate to add. Again, even if the Government could get it through Parliament, the courts would throw it out.
It was put to me that somehow this House cannot really grapple with considering a country to which there are objections unless it appears in a statutory instrument alone. The answer to that concern is very simple. If a country is proposed by any Government, either now or in the future, that this House does not want to be specified under this Bill then the job of this House is to win that argument and vote down the relevant regulations.
To quote my noble and learned friend Lord Mackay of Clashfern, who as always put it very succinctly, being a former Lord Advocate and Lord Chancellor,
“a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.”—[Official Report, 5/3/20; col. GC 386.]
I have often made such considerations when considering statutory instruments. This House and the other place will have the ability to reject regulations which contain multiple countries, which will incentivise any Government to heed my noble and learned friend’s advice.
It was also suggested in Committee that having multiple instruments specifying a single territory would take just “a little longer”—a bit more typing and printing. The noble and learned Lord, Lord Judge, alluded to that today. That is to rather belittle the potential impact of this amendment on parliamentary business. The description that this would not cause,
“much more than a few more pieces of paper—a little more typing and standing up and sitting down”—[Official Report, 5/3/20; col. GC 387.]
simply does not adequately describe the impact of unnecessary regulations. We are all in the middle of an abject lesson in the reality of entirely unexpected time having to be diverted for vital emergency parliamentary work for the good of the whole of the UK. Unnecessarily burdensome legislation is simply not consistent with the Government’s duty to have proportionate systems in place that afford regulations only the proper and necessary time and resources needed.
Despite the crisis that has engulfed normal and parliamentary life in the UK, we need to press on with this Bill because some of the horrors it seeks to mitigate are already present on our streets. I have said more than once that thousands of international arrest alerts are already circulated for fugitives by the countries in scope. UK police officers need the arrest powers not because of other countries but to keep our streets safe. This law will prevent fugitives responsible for such crime continuing to evade justice through an operational loophole which puts the public at risk.
From the tone of the speakers, I think there will be a desire to test the opinion of the House. I hope noble Lords will join me in resisting this amendment.
I will test the opinion of the House, but I will first respond a little to what has been said. I thank all noble Lords who have supported this amendment.
As the noble and learned Lord, Lord Judge, said, we need a sensible extradition regime and I do not seek to subvert that. This is also not about mutual arrangements. I am flattered that the noble and learned Lord attributes to me an awareness of and sensitivity to the constitution and common sense. I hope this amendment achieves both. He gave examples of situations where the Government might be tempted down a route which was not perhaps the best because of other matters in play politically. It occurs to me that the topical discussion might be, “Do you want our vaccine? Do you want our PPE?” This amendment would let the Government, in advance, off the hook that they might create for themselves, giving them a way out of facing that unpleasant discussion.
We are proud of our values; this is a way of applying them. The Minister says that we might win the argument and vote down regulations because they included an “undesirable” country—I use the term as shorthand. However, in this example, that would not reflect the views of Parliament because it would not be able at that point to accept the desirable country.
We have had to adapt our procedures over the last few weeks. Great and very successful attempts have been made to ensure that procedure reflects good governance. We should extend that today. This is a proportionate response to the issue. The Minister says that the Government want to press on with the Bill; I have no doubt that they do. It will have to go to the Commons, and we know that it already contains a provision which the Government will not be very happy with. As I say, this amendment is proportionate, sensible and one that the House should accept. I would like to test the opinion of the House.
Amendments 4 to 7
4: The Schedule, page 7, line 2, leave out “within 24 hours of” and insert “as soon as practicable after”
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
5: The Schedule, page 10, line 8, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
6: The Schedule, page 10, line 9, at end insert—
“( ) In subsection (7), for “or 74(3)” substitute “, 74(3) or 74A(3)”.”Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
7: The Schedule, page 10, line 10, leave out sub-paragraph (4)
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
Amendments 4 to 7 agreed.
My Lords, I thank the noble Lords who engaged very constructively with the Bill, particularly the noble Lords, Lord Kennedy and Lord Paddick, the noble Baroness, Lady Hamwee, the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Mackay of Clashfern. The Chief Whip’s beeper is going so I think he wants me to keep my comments short.
Extradition is not an easy subject, but this has been most interesting legislation, with very well-drafted and thoughtful amendments. Everyone will benefit from the work done on this. I particularly thank officials from the Home Office, who have supported me so brilliantly throughout. I beg to move.
My Lords, I echo the noble Baroness’s comments. I thank all noble Lords who have taken part in the proceedings on the Bill. I enjoyed working with everybody concerned. I think that we have made the Bill better. As always, the noble Baroness has been courteous and kind and always prepared to engage with me constructively. I also thank all her officials from the Home Office for the way they have worked with me during the Bill’s passage.
My Lords, I too thank everyone who has been involved with the Bill. As the noble Baroness, Lady Williams, said, it is not an easy subject, although some of the amendments that we have had to consider have in fact been relatively straightforward. I suspect we will discuss extradition quite a lot over the next few months and years, so we will all get to know the subject even better. I congratulate her on seeing this through. I really appreciate the help of officials and staff. Who thought, when we started on the passage of the Bill, that we would have had such an extraordinary experience?
Bill passed and sent to the Commons.
Arrangement of Business
My Lords, a limited number of Members are here in the Chamber, respecting social distancing, and if the capacity of the Chamber is exceeded I will immediately adjourn the House. Other Members will participate remotely, but all Members will be treated equally, wherever they are. For Members participating remotely, microphones will unmute shortly before they speak—please accept any on-screen prompt to unmute—and be muted after each speech. I ask noble Lords to be patient if there are any short delays as we switch between physical and remote participants. I remind the House that our normal courtesies in debate still very much apply in this new hybrid way of working. I call the Government Deputy Chief Whip to make a short statement on the business.
My Lords, with the leave of the House, I thought that this would be a good opportunity to remind noble Lords of the timings for this important debate. My noble friend Lord Younger has eight minutes to speak at the start of the debate and will close it with a 10-minute speech. The noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin have six minutes. The noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Smith of Basildon, both have six minutes. All other speeches must be limited to one minute. I realise that this will be difficult, but I will interrupt noble Lords if they go over one minute.
Abortion (Northern Ireland) (No. 2) Regulations 2020
Motion to Approve
My Lords, noble Lords may be aware that these represent the second version of the regulations. Given the unprecedented changes created by Covid-19, we had no choice but to remake them and give Parliament an additional 28 days to consider them. I am pleased that we can now debate the regulations today. In particular, I look forward to the remarks of the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, who will speak to their amendments.
The regulations provide the new legal framework for access to abortion services in Northern Ireland and ensure ongoing legal certainty from service provision starting with effect from 31 March 2020. As many noble Lords will be aware, prior to these changes, starting with decriminalisation in October 2019, abortion in Northern Ireland was accessible only where a woman’s life was at risk, or the pregnancy would adversely affect her physical or mental health in a manner that was “real and serious” and “permanent or long term”. This meant that women and girls were forced to travel to England to access services—1,014 in 2019 alone—or look to unsafe alternatives outside the healthcare system, thus potentially putting themselves at risk, and feeling scared to receive proper aftercare health treatment given the criminality. I can only start to imagine the distress that this has caused.
I recognise that this is an emotive issue and that views on all sides of the debate are strongly held. I am sure that this afternoon will be no exception. These are extremely difficult and often distressing decisions for women and girls and, where involved, partners and families. However, the essence of these regulations is to provide women and girls with the opportunity to be able to make individual informed decisions based on their own health and wider circumstances. As a result of the absence of the Assembly and a functioning Executive, Parliament placed this duty on the Government to act to protect the human rights of women and girls.
The Government have to provide lawful access to abortion services in Northern Ireland in a way that implements the recommendations of the CEDAW report on Northern Ireland, the underlying important premise of which is to ensure that abortions are delivered as part of safe sexual and reproductive healthcare services. Parliament voted through Section 9 of the NIEF Act with a two-thirds majority in support of decriminalisation of access to abortions, except for late-term abortions where the offence of destroying a child capable of being born alive would still apply.
The regulations set out the specific parameters within which abortions could legally take place. They first properly protect and promote the health and safety of women and girls and, secondly, provide clarity and certainty for the medical profession. We consulted on this: there was a six-week period, including briefings with the Northern Ireland parties and engagement with a range of representative groups and individuals with lived experience, followed by careful analysis of the submissions received. I acknowledge that there was a vote in the Northern Ireland Assembly on 2 June, but it was on one issue—severe foetal impairment—and was not a motion to vote down these regulations. As abortion remains a devolved issue, the Assembly is now able to legislate, or indeed amend the regulations, should it so wish, but only if it can agree a way forward that remains CEDAW and convention-compliant.
I will now give a brief overview of the key elements of the regulations. They provide for access to abortions without conditionality up to 12 weeks’ gestation. This ensures a system that avoids any further trauma or a barrier to access for victims of sexual crime, as required by CEDAW. This provision is necessarily different from the law in the rest of the UK, given the decision by Parliament to decriminalise abortion in Northern Ireland, which creates a different starting point for the statutory framework. These different parameters do not result in unintended consequences, such as allowing sex-selective abortions, as some have suggested. The regulations also set out a further three circumstances in which an abortion is possible.
The first is: up to 24 weeks’ gestation in cases where continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or girl, greater than the risk of terminating the pregnancy. The second is in cases of severe foetal impairment and fatal foetal abnormalities, with no gestational time limit. This is where there is a substantial risk that the condition of the foetus is such that the death of the foetus is likely before, during or shortly after birth; or, if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled. We recognise these are very distressing circumstances, usually arising in cases of wanted pregnancies, and appropriate support and provision of information are key so that women can make informed decisions, based on what is right for their health and wider circumstances, including if they want to carry the pregnancy to term and have proper support going forward. The third is in cases where there is a risk to the life of the woman or girl, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or girl, with no gestational time limit. In such cases, the regulations require that two medical professionals certify in good faith that the ground for the abortion has been met. While CEDAW’s report is silent on the question of gestational limit in such circumstances, we consider the aforementioned grounds an appropriate way of delivering on our statutory duty and implementing the recommendations of the CEDAW report in a way that will work effectively in practice.
The regulations allow for abortions to be provided by a doctor, nurse or midwife. They may be carried out in general practitioners’ premises, clinics provided by a health and social care trust, and health and social care trust hospitals, operating under the overall Northern Ireland health and social care framework. The Department of Health in Northern Ireland has a power to approve other places. Medical professionals are required to notify the Northern Ireland CMO of the abortion, alongside other relevant data specified in the regulations, with subsequent annual publication of data.
Finally, the regulations impose a criminal sanction on anyone who intentionally terminates or procures the termination of the pregnancy of a woman otherwise than in accordance with the clear requirements and conditions set out in the regulations, including the certification and notification requirements. This is about where someone is acting dishonestly or negligently—not where a medical professional forms an opinion as to risk in good faith and certifies that an abortion can take place but makes a factual error—and requires the consent of the DPP before proceedings can be brought under the regulations. Other criminal laws also continue to apply, including Section 25 of the Criminal Justice Act 1945, which prohibits the destruction of a child otherwise capable of being born alive, but abortions provided in accordance with the grounds of the regulations are exempt from this and no woman or girl can be prosecuted with respect to ending her own pregnancy.
I know that many noble Lords have expressed concerns that this has resulted in a more liberal regime than Great Britain’s, but this is not the case. The regulations deliver equivalent outcomes in practice and access to services to those in the rest of the UK while still implementing what CEDAW requires. The Government stand ready to provide whatever support and guidance we can to the Northern Ireland Minister for Health and his department to assist with setting up abortion services in line with these regulations.
I look forward to the debate and will seek to address as many questions as I can in closing. I hope that the regulations will be supported. I beg to move.
Amendment to the Motion
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because they (1) have been rejected by the Northern Ireland Assembly, (2) are legally flawed by being in breach of section 6 of the Northern Ireland Act 1998, (3) do not prohibit abortion on the grounds of non-fatal disability, (4) perpetuate stereotypes towards persons with disabilities, including Down’s syndrome, and (5) do not prohibit abortion on the grounds of sex selection during the first twelve weeks of gestation, as is the case in Great Britain, and therefore perpetuate negative stereotypes and prejudices towards women.”
My Lords, these regulations apply only in Northern Ireland; we now have a functioning Northern Ireland Assembly. Abortion is a devolved matter; the Assembly voted to reject these regulations on 2 June. The wording of the Motion was to “reject” these regulations. Of our 90 MLAs, 75 voted against the provisions for grounds of disability. When the NIO carried out its short consultation, 79% of respondents rejected these proposals. In the past few days, over 18,000 people have signed an open letter to Peers and MPs—I sent it to all noble Lords on Friday. They ask that you listen to them, and to the Northern Ireland Assembly, and do not approve these regulations. The Government have said that the vote is of no consequence: Northern Ireland must comply with its international human rights obligations. The CEDAW convention does not mention abortion. Article 29 is clear that nobody has the power to read in rights and none has been read in.
The report to the unelected, non-judicial UN CEDAW committee is not international law. There is no international legal obligation to pass these regulations. Parliament voted last July to require compliance with Articles 85 and 86 of CEDAW. The obligation makes it one of national, not international law. What Parliament makes, Parliament can unmake; we could repeal Section 9. No international human rights obligations derive from the CEDAW report. The Government say they have to table these regulations; that is not right. Section 9 says that, having tabled a set of amendments, the Secretary of State has a discretion, not a duty, to make further regulations.
There are 41 speakers in this debate. Eight of us from Northern Ireland have just 13 minutes in which to speak while the other 77 minutes are for Members who are not from Northern Ireland. Ninety minutes are not enough, given that no Northern Ireland Members are on the JCSI or the SLSC. The SLSC drew the regulations to the special attention of the House because Parliament was denied an opportunity for scrutiny and this is the first occasion on which your Lordships have been able to consider this radical change. There is no opportunity for amendment.
Some of these regulations do not even comply with CEDAW. Article 85 expressly stipulates that expanded access to abortion on the basis of disability must be made
“without perpetuating stereotypes towards people with disabilities”.
That is what these regulations do. They afford viable unborn babies from 24 weeks’ gestation protection from abortion, while saying that viable babies of exactly the same age can be terminated just because they have a non-fatal disability. Are the Government interested in achieving compliance not with Article 85 but with approving the 1990 discriminatory law in Great Britain which is now subject to legal challenge?
The regulations make sex-selective abortions lawful because there is no impediment to such abortions in them. The Minister has written to the noble Baroness, Lady Eaton, to say that the absence of an impediment does not mean that sex-selective abortion is permissible. In our legal system, anything is lawful unless it is unlawful. Canada introduced access to abortion without conditionality and the Canadian Medical Association Journal says that Canada is now regarded as a “haven” for sex-selective abortion. The identification of sex is available to pregnant mothers between seven weeks and 10 weeks of gestation. The Government have said that this is an abhorrent practice which is illegal in Great Britain because the grounds on which one can get an abortion do not include the sex of a child. In January of this year, the Government said that that is what English law states. These regulations will make abortion up to 12 weeks’ gestation lawful for any reason, which must include foetuses of the wrong sex. People think that we are being asked to vote for this measure to send a signal that sex-selective abortion should be accommodated throughout the UK. CEDAW has said that it
“aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
The regulations are silent on the matter of coercive abortion. The Istanbul convention requires protection against coercive abortion. I know that it has not been ratified, but we are supposed to be becoming more and not less compliant with it. In 2019 the Government said that Section 58 of the Offences Against the Person Act covers such behaviour, but it has been decriminalised and this House voted to remove it. Moreover, the regulations fail to provide the new, explicit offences that were promised by the Government. The only penalty for any offence is an inadequate fine of up to £5,000.
The Northern Ireland Attorney-General and many other eminent QCs have argued that Regulations 7, 12 and 13 are ultra vires. This resulted in a letter that was sent to all Members by a group of 38 Peers and MPs from across the UK and five different political groupings, highlighting that these regulations are not intra vires. Indeed, the repeal of part of the Criminal Justice Act is not even mentioned in the CEDAW report.
The Secondary Legislation Scrutiny Committee has expressed serious concerns about the inadequate nature of the consultation process. Be in no doubt: if you vote for these regulations, you will be giving discrimination a fresh mandate for GB, not just Northern Ireland. The regulations are not consistent with Section 9 and they have been rejected by the Northern Ireland Assembly. The proposals were rejected by 79% of respondents. Repeated demonstrations have occurred and an earlier letter to the Northern Ireland Minister was signed by 23,000 people. The regulations are not even compliant with CEDAW on disability discrimination and sex selection. This is not an international human rights obligation on the UK.
I ask noble Lords to listen to the people of Northern Ireland and listen to our Assembly. Do not approve these regulations. I will call a Division.
Amendment to the Motion
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because (1) they are drafted in such a way as to promote the stereotype that those with non-fatal disabilities are worthy of less protection in law than those who are not disabled; (2) to that extent they do not comply with the recommendation in paragraph 85 of the United Nation’s Committee on the Elimination of Discrimination against Women’s report Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, published on 21 March 2018, in particular that legal grounds for abortion should be expanded ‘without perpetuating stereotypes towards persons with disabilities’; and (3) to that extent they are counter to the decision of the House on 17 July 2019 in amending the Northern Ireland (Executive Formation etc) Bill to implement the recommendations of paragraph 85 of that report.”
My Lords, I rise to speak to my amendment and in support of the amendment moved by the noble Baroness, Lady O’Loan, with specific reference to paragraphs (3) and (4). Many of us will have received an update from our party Whips about today’s business. My update stated unambiguously that, “Even though this is government policy, it will be a free vote.” There is no beating about the bush: this is official government policy which we are being asked to support. I think that that bears closer examination. In asking noble Lords to support the fatal amendment in the name of the noble Baroness, Lady O’Loan, I make it clear that while I will not be moving my amendment to a vote, I am asking them, in supporting the noble Baroness, to reject the official policy of the Government and therefore of the Conservative Party because it undeniably promotes and perpetuates disability discrimination.
As the youngest member of the National Disability Council, which was created some 25 years ago by the then Conservative Government to advise on the implementation of their ground-breaking Disability Discrimination Act, I helped to define in codes of practice what disability discrimination actually looked like. Central to the concept was the premise that there should be evidence of less favourable treatment on account of a human being’s disability. I would be interested to know how my noble friend the Minister thinks denying a human being who has been diagnosed before birth with a non-fatal disability such as mine the equal right to be born is somehow not less favourable treatment.
I have seen disability discrimination close up and I know what it looks like. That brings me to a report by the UN Committee on the Elimination of Discrimination Against Women. I am sure that my noble friend is familiar with Article 85 of Section VII, on page 21. But just in case he is not, let me remind him of what it says, and incidentally what the Government are deliberately choosing to go against. As the noble Baroness has explained, it states that abortion services should be expanded
“without perpetuating stereotypes towards persons with disabilities”.
No doubt my noble friend will be able to quote back to me Article 62 of Section VI on page 16. If not, let me jog his memory. It states that
“the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
I will be intrigued to hear from my noble friend the Minister how what the Government are pushing through Parliament is compliant with the committee’s recommendations in Articles 85 and 62, which I have just read out. But perhaps I am being stupid; after all, I am only a disabled parliamentarian. Perhaps I am missing something, or perhaps I am not.
Perhaps the Government could not care less about flouting not only the committee’s instructions but your Lordships’ House’s clear instruction, given almost a year ago today on 17 July 2019, when it amended the Northern Ireland (Executive Formation etc) Act 2019 to implement the recommendations of paragraph 85 of the CEDAW report.
Why does my noble friend the Minister think CEDAW, your Lordships’ House and, more recently, the Northern Ireland Assembly have all focused on the danger of stereotyping? It is hardly rocket science. The answer lies in two words, which both begin with the letter D: disability discrimination. That is what the Conservative Party claimed to have outlawed when it passed the Disability Discrimination Act 1995, yet here we are a quarter of a century later, with the Conservative Party back in government, asking people to continue to believe that it is against disability discrimination while imposing it on the only part of the United Kingdom that is a safe haven for human beings diagnosed with a disability before birth.
In conclusion, I implore the Prime Minister to intervene and save the credibility of his promised national disability strategy, which I presume is to counter discrimination. As a proud Conservative, I reject this government policy of disability discrimination and urge all noble Lords to do the same.
My Lords, while I respect the views of others who disagree on this highly sensitive issue, as the referendum on abortion bringing radical change in the Republic of Ireland showed, there is now huge pressure on the island of Ireland for women’s rights. That was the impetus behind the change legislated for by this Parliament under the 2019 Act. I am sorry, but it is no good some local Assembly Members complaining. While they squabbled, refusing to do their jobs and instead maintaining Stormont in ignominious suspension for three years, the world moved on without them.
Women in Northern Ireland are now entitled to the same rights as in all other parts of the United Kingdom, and it is our statutory obligation to implement these regulations helping to set out the legal framework for services that will bring Northern Ireland into line with the rest of the UK and meet the requirements of Article 8 of the European Convention on Human Rights.
The procedure imposed by the Leader of the House is wholly inadequate, and proper scrutiny of government is failing.
For over a year Parliament has discussed how it will enable woman and girls in Northern Ireland to access safely the healthcare they need. Consultation has been extensive and transparent, both here and in Northern Ireland. Abortion is now decriminalised but remains highly regulated, as it should be, and staff uphold legal and professional standards. Women who have been raped or abused can now obtain the treatment they need close to home; Northern Ireland no longer exports the problem. Women whose 20-week scan reveals that they have severe foetal abnormalities will now have access to the safe services they need. These regulations should be supported and fully implemented as soon as possible for the benefit of all women in Northern Ireland.
My Lords, I support the amendment from the noble Baroness, Lady O’Loan, and will focus on the proposal in Regulation 7 that abortion for disabilities including Down’s syndrome should be available during the first 12 weeks without question or counselling and then potentially through to birth.
The General Synod of the Church of England has overwhelmingly approved a motion on valuing people with this syndrome. We have worked closely with people such as Heidi Crowter, who has Down’s syndrome and has already been widely quoted in the House of Commons calling on MPs and Peers not to vote for regulations that, in her words, “contain discriminatory provisions”.
If we approve these regulations we will be in the contradictory position of declaring on the one hand that people living with disability are valued, respected and cherished, but on the other that any disability—which can be a very broad concept—in and of itself, and regardless of other considerations, constitutes an automatic ground for termination.
My Lords, be clear: CEDAW makes no mention of abortion. Moreover, the committee report—which is binding only because we have made it so—expressly condemns disability-discriminatory and sex-selective abortions, which these regulations do not. Instead, they fly in the face of devolution, ignoring the overwhelming and united views of Northern Ireland’s majority, manifested in polls and a recent vote of the Northern Ireland Assembly.
These regulations also fail the good governance test. Our Secondary Legislation Scrutiny Committee said the time provided for consultation—which generated 21,000 responses, with 79% opposed—was
“too short for so sensitive a topic.”
It concluded that Parliament was denied
“an opportunity for scrutiny before the instrument came into effect.”
Ignoring our own scrutiny committee, the devolved Assembly and the considered views of disability groups, charities and the Attorney-General for Northern Ireland will simply bring Parliament into disrepute. That is why, whatever your views about abortion, we should vote “Content” to my noble friend’s amendment.
My Lords, I regret to say that as a parliamentarian I am not proud to participate in these proceedings. Since this started last year, the parliamentary process has been outrageous. The legislation should never have been allowed on to the statute book in the first place and our proceedings tonight, with one-minute speeches, are an insult to all the people of Northern Ireland. We were told repeatedly throughout last year that we could not raise health issues, despite the fact that people were dying, or the RHI because it was a devolved matter. Now that we have devolution, it has been set aside.
Can the Minister confirm whether any party in Northern Ireland asked the Government to take on this responsibility because it does not have the guts to do it? If he does not have an answer for me tonight, can he write a letter to me and put it in the Library so that the rest of us can see what really happened?
I call the noble Lord, Lord Dubs. Let us try again; I call the noble Lord, Lord Dubs. No? If we have time, we will come back to him. I now call the noble Baroness, Lady Burt of Solihull.
My Lords, in all my dealings with the DUP—social and otherwise—it has always struck me just how much it values being a full part of the United Kingdom. Its loyalty to Britain and the Queen is beyond doubt, yet today it tries to deny Northern Ireland women the same rights as women in the rest of the United Kingdom. Why does it not believe in equal rights for everyone in the United Kingdom?
Not having equal human rights in Northern Ireland contravenes the Istanbul convention and has been used by several Governments as an excuse for holding back ratification. Will the Government finally, eight years after signing it, now please ratify the Istanbul convention?
My Lords, this legislation solely affects the people of Northern Ireland. It was introduced wrongly in the first place and now, to add insult to injury, we have a conflict with the democratic decision of the Northern Ireland Assembly.
Every day we have listened to a homily from Ministers telling us how important it is to save lives, yet statistics show that in England and Wales nearly 210,000 children were lost to abortion in 2019. This legislation in Northern Ireland is even more liberal. This is immoral, and each of these cases represents a failure of society to protect the lives of babies in the womb.
During the pandemic, the BBC and other media crews were permitted into ICU wards to show the serious reality of what happens when a person is struck down with Covid-19. I wonder whether the film crews will be allowed into the theatres to show the brutality of how a child is torn from its mother’s womb just because the child has a disability, including Down’s syndrome. Is there no compassion left? I protest, and I beg this House to have mercy upon the innocent children who have done no wrong, only requesting the right to live. This legislation ensures that their voice will not be heard, and I support the amendment.
My Lords, CEDAW has often been cited in support of the regulations. It is notable that abortion is actually never mentioned in it. My noble and learned friend Lord Mackay has pointed out that Parliament cannot bind its successors. There was a great dereliction when a proper opportunity to give Parliament a chance to reconsider repeal of Section 9 was missed. However, the words that have moved me most in this debate have been those of the noble Lord, Lord Empey. He pointed out that this has been a disgraceful misuse of parliamentary procedure, denying the proper level of consideration by your Lordships and the other House, and the fact that the Joint Committee has not drawn this to your Lordships’ attention makes it essential that its composition is revised in the future.
My Lords, my husband and I adopted two six-week-old babies. I felt the joy of babies growing up and the need to protect little children. Today, I feel the need to protect the unborn child. The regulations allow abortion up to birth for babies with disabilities but limit it to 24 weeks for non-disabled children. Many people are dismayed and horrified by this discrimination. There is no protection for healthcare professionals if they do not wish to perform abortions, which are slaughter. These discussions should be left to the Northern Ireland Assembly.
My Lords, in 2018, the Supreme Court described the law on abortion in Northern Ireland as “untenable”, “disproportionate” and incompatible with Article 8 of the European Convention on Human Rights. With Stormont not sitting, two-thirds of Northern Irish people supported Westminster reforming their abortion law, which we duly did. Abortion is now legal in Northern Ireland, as it is in the rest of the UK. The regulations establish a framework of provision. Currently, there are no routine services beyond 10 weeks of pregnancy, and women are still forced to travel to England via the Government Equalities Office scheme. During lockdown, few have been able to travel, with resultant distress. Without these provisions, abortion care services may stop, and women may turn to unregulated services, which no one could want. Therefore, I urge noble Lords to support the regulations.
My Lords, the law already stands. The Government have a legal duty, under the Northern Ireland (Executive Formation etc) Act 2019, to comply with their international human rights obligations. The regulations provide the framework for access to abortion services and the fulfilment of that legal duty. Abortion is legal in Northern Ireland; the regulations simply establish a framework for provision. Let us move forward, not backward. The focus should be on implementing the regulations, not dragging us backwards. The private business Motion in the Assembly changes nothing in effect. It signalled a desire to roll back the hard-won rights of women and girls in Northern Ireland. It is time we moved forward.
My Lords, the regulations are out of keeping with the majority view of the Northern Ireland Assembly, which two weeks ago voted against the imposition of such regulations. That debate was anchored around the section of the legislation that deals with the most egregious aspect of the abortion regulations, that of severe disability, which has been characterised by Heidi Crowther, the Down’s syndrome girl, as suggesting that this legislation does not want people like her. I am very conscious that we must all be careful about our language.
The legislation which fuels these regulations was passed contrary to the devolution settlement that underpins the Good Friday agreement. Clearly this matter is exclusively for the local Assembly, and I note what my noble friend Lord Hain said about that. That was determined by the European Court of Human Rights.
The regulations, which act as the driver for the legislation, are not compliant with the UN’s 2007 Convention on the Rights of Persons with Disabilities. I will support the amendment in the name of the noble Baroness, Lady O’Loan.
My Lords, if this were the only occasion on which we had debated this legislation I might have some sympathy with those who tabled the amendments, but it is not. The last time that we discussed this, a great deal of time was spent on forecasts and predictions. There were to be rogue clinics, unusual practitioners, a whole range of elements. Time has passed, and they have not happened.
Women in Northern Ireland have, for the first time, the rights which we across the waters have. It is time we recognised that this is a step forward. Having 1,000-plus women crossing the Irish Sea to come to England to have their rights exercised is not sensible, nor is it fair. These amendments are not worthy of support and it is time to move on. It is time to support these regulations.
My Lords, these regulations, as we have heard, introduce a framework to implement the CEDAW recommendations. It is time that those recommendations were fully enacted.
I say to those who want Northern Ireland to go in a different direction from the rest of the United Kingdom that they cannot have it both ways. We are all part of the same union, so women in Northern Ireland must be treated equally. It is their human right. Former chairman of the British Medical Association Dr John Marks, speaking after his retirement in 1999, said:
“Looking back over these 40 years, it seems to me that the event which has had the most beneficial effect on public health during that period has been the passage of the abortion Bill”.
That is a quite remarkable statement for such a senior medical person to make, and one we should note.
My Lords, these regulations inexplicably fail to provide for the inspection of NHS abortion provision. Last Monday, the Minister in the other place said that
“we have sought to achieve the same outcomes as the frameworks in place across the rest of the UK.”—[Official Report, Commons, 8/6/20; col. 44.]
A recent Northern Ireland Assembly question confirmed that the relevant NI inspection body, the Regulation and Quality Improvement Authority,
“do not have any powers specifically in relation to abortion providers as they are not a discrete category of provider required to register with, and be inspected by, RQIA.”
Regulation 8 could have been drafted so that when the regulations came into effect there was a proper inspection regime in Northern Ireland, as in England. Without such a regime, the regulations carelessly leave women significantly less protected than in England and Wales. Consequently, the regulations are not fit for purpose. I will vote “Content” on the amendment tabled by the noble Baroness, Lady O’Loan.
My Lords, abortion is difficult; there are two lives. I welcomed David Steel’s law. I have resuscitated women after back-street abortions, assisted at vacuum abortions, shared the sadness at an aborted late foetus, signed abortion forms and supported many women. Whatever your views, abortions will happen and must be safe, but not viewed as convenient sex selection.
Constitutionally, there is a problem with this statutory instrument. It was wrong to exploit the lacuna of Stormont not sitting to impose legislation that is wider than in England and Wales. Northern Ireland is in an unstable position as we leave Europe. It must decide for itself if it joins Eire’s framework or legislates in line with the rest of the UK, but we should not impose on it. I support the amendment tabled by the noble Baroness, Lady O’Loan, and will vote “Content”.
I am not clear how these regulations meet the UK’s existing convention obligations, which include legislation on forced abortions. Section 58 no longer applies in Northern Ireland, and these regulations fail to provide such explicit new offences. The only penalty for any offence in these regulations is a breathtakingly inadequate fine of up to £5,000. The only other potentially relevant offence is in the Offences Against the Person Act 1861, but as Ian Wise QC has pointed out, it is wholly inadequate because abortions are not regarded as poisoning the women. The regulations are manifestly not fit for purpose. Needless to say, I shall support the amendment in the name of the noble Baroness, Lady O’Loan.
My Lords, the amendments are in a way not quite what they appear, and the support we have seen is actually from people who fundamentally disagree with abortion and who want to prevent women from having abortions in Northern Ireland. However, let us be clear, women will still have abortions, as has been said, but they will be forced to travel—including in transport that is very high risk at the moment—to have their legal right either in England or elsewhere. That might salve the conscience of those who do not want abortions to take place in Northern Ireland, but they will still take place. Let us do this properly. Let us allow abortions to take place where they have to—they are never wanted—in the place nearest to where those women live.
My Lords, we have essentially already voted in favour of this law. I shall support the regulations; they provide greater clarity and certainty, protecting the health, safety and human rights of women. I understand the emotions on this matter, but I think it is right that there should be decriminalisation in Northern Ireland as in the rest of the United Kingdom. I also think that the human rights law dimension is very clear, particularly the Convention on the Elimination of All Forms of Discrimination against Women and the Supreme Court judgment, as well as broader human rights law. It is a simple matter ofthe rights of women. Although I understand the devolution element, the noble Lord, Lord Hain, was absolutely right that this was passed because, at the time, there was no Assembly, and we were right to act.
My Lords, in 1996, I presented the Bill that enabled the UK’s first DNA database. At the moment of conception, life starts with unique DNA that no one else in the world has. Abortion is a distortion of that right to life. I oppose these regulations, and I totally support the points made in particular by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Shinkwin. This year, there have been just over 430,000 deaths from Covid-19 worldwide. That is dreadful, but let us compare it with over 90 million abortions worldwide so far this year. Abortion is legal only because babies cannot vote. Life is a civil right, while abortion is a moral wrong. Abortion is a distortion.
My Lords, I am a member of the Joint Committee on Statutory Instruments. As we received a high volume of correspondence on these regulations—indeed, it has been mentioned in the debate today—I thought it might help the House if I briefly outlined the role of the committee. Our role is to draw the attention of Parliament to statutory instruments on technical grounds, including retrospection, defective drafting and the scope of enabling powers. The merits are strictly not within our scope.
For this order, it is apparent that the strong differences of opinion include on whether it is within the enabling powers. However, the opinion of the committee was that we were unable to report this SI to the House as being outside the scope of enabling powers. This is not to argue that it is within them, but it is to say that these debates need to take place on the Floor of the House to preserve the political independence of the Joint Committee. The merits and the law of this instrument need to be decided by the House in debate, as it is today.
My Lords, I support the amendment in the name of the noble Baroness, Lady O’Loan, for the simple reason that it is fundamental to the devolution settlement that we respect the view of the people of Northern Ireland as made known through the votes of the Assembly—and it has been made known, with absolutely no ambiguity. These regulations were decisively rejected in two key votes. Of the 90 Members of the Assembly, 75 voted against. On abortion generally, I support the position of the Church of England, which is to support abortion in certain, very clearly defined circumstances. As far as I can see, these regulations go beyond the law in the rest of the UK in a way that is unacceptable. The Government have said that they are under a legal obligation to enact this law, but Governments sometimes make laws that they later reverse because of some overriding consideration. There is an overriding consideration in this case: the people of Northern Ireland have said clearly and firmly that they want to make their own law on this issue.
I thank noble Lords. I want to make it clear at the outset that I, the father of four and the grandfather of seven, am in principle totally opposed to abortion, except in absolute emergency terms to save a mother’s life. I am appalled by some assertions I hear today that these regulations are no more permissive than the 1967 Act. That is just not true. It is known that in Northern Ireland, we celebrate the fact that 100,000 people are alive today who would not be had we embraced the 1967 Act. I ask colleagues to consider what Northern Ireland’s society will be by 2045 and beyond, in terms of age imbalance, if Westminster’s imposed abortion terms become law. I ask the Minister answering this debate to quantify that issue.
I had a four-minute speech and was disgusted to learn that I was allowed to speak for one minute on this vital issue for the people of Northern Ireland.
My Lords, I speak as a former chairman of the Northern Ireland Affairs Committee in another place, and I approach this from a constitutional position. I was very moved by the speeches of the noble Lord, Lord Shinkwin. the noble Baroness, Lady Finlay, and the noble and right reverend Lord, Lord Harries, and I came to the same conclusion as they did. It is quite wrong, first of all, to rush this through with one-minute speeches and—now that we have a fully functioning Assembly that has made its concerns abundantly clear—for us to ignore the devolution settlement. We are not ignoring devolution in the battle against Covid-19, and nor should we. The four constituent countries of the UK are taking differing approaches in details. It is absolutely necessary, if you believe in devolution, to honour devolution and to let this decision be taken where it should be: in Stormont.
My Lords, I respect, and indeed even admire, those noble Lords who oppose abortion on the grounds of sincerely-held moral objections, of which we have heard on several eloquent occasions this evening. However, I shall vote for the Motion, first, because of the observations of the Supreme Court, but also for this reason: I do not believe that female United Kingdom citizens living in Northern Ireland should suffer discrimination as compared with female citizens of the United Kingdom elsewhere.
My Lords, I oppose the two amendments to the Motion and support the regulations. I associate myself with the remarks of the noble Baronesses, Lady Barker, Lady Northover, Lady Thornton and Lady Hayter, and the noble Lord, Lord Taylor. The British Medical Association has welcomed this framework as an important step forward for the provision of abortion services in Northern Ireland. That provision of essential, safe and legal abortion services within Northern Ireland is something that I have campaigned for since 2008, although I also agree with the British Medical Association that abortion should be decriminalised across the UK.
Until the Covid-19 epidemic, I had long pointed out how this is an issue of equality: that rich women have always been able to travel to access safe, legal abortions. Now, as the women of Malta have been encountering, that is not true under the conditions of an epidemic. We need safe, legal abortions to be available to women everywhere in the world.
My Lords, first, abortion is legal in Northern Ireland. Regulations are already in operation, and this is a framework. The BMA, which I sometimes suggest is a trade union for doctors, welcomes the regulations. It has three observations. First, as has been mentioned, it does not believe that healthcare workers should be subject to criminal sanctions. I agree with that. Secondly, it believes that abortion should be decriminalised across the UK. I agree with that. Its third observation—this is an issue that has not yet been mentioned—concerns the omission of the creation of exclusion zones outside confidential abortion services. That matter should be pursued, and if the Northern Ireland people are unhappy, they should reflect on the fact that for years they talked to themselves rather than address the needs of their population.
My Lords, fear of difference and otherness extends to disability. Many of us still grow up with no personal experience of people with Down’s syndrome or cerebral palsy, and children might be cruel to someone with a cleft palate, but those are not reasons to propose the discriminatory practice of abortion for unborn babies with these conditions up to birth. This practice offends children and adults who live with so-called impairments, and it offends families who love their disabled family members unconditionally and are tired of seeing them discriminated against. Many people with Down’s syndrome say that it makes them feel like they should not have been born. A truly liberal society would welcome and celebrate difference. As my noble friend Lady O’Loan said, Regulation 7 is not CEDAW compliant: paragraph 85 stipulated that the law must be changed
“without perpetuating stereotypes towards disabled people.”
As a doctor and a mother, I support the amendments.
My Lords, we all need to be respectful of each other’s views. Those of us who support the Government tonight have no deficiency in our morality, nor do we have any lesser ethics or standards of ethics than anybody else. By rejecting these regulations, going back to the Offences Against the Person Act 1861 and allowing women theoretically to be jailed for life for having an abortion is not where the world should be at the moment. I believe in equality of rights and in safety in healthcare. That is why I will be supporting the Government and opposing the amendments tonight.
My Lords, Regulation 3 allows abortion for any reason up to 12 weeks’ gestation with no exclusions. New tests are available that determine the child’s sex before 12 weeks; thus sex-selective abortion is now lawful in Northern Ireland. Last Monday, the Minister said:
“I make it clear … that the abortion regulations do not allow abortions on the grounds of sex selection.”—[Official Report, 8/6/20; col. 1626.]
Brett Lockhart QC has responded:
“I confess to being entirely unclear as to how one could legally have come to that opinion”.
Writing in ConservativeHome today, leading human rights activist Jasvinder Sanghera responded:
“Unless … there is a provision in the regulations currently held from sight by invisible ink, this assertion seems plainly wrong”.
“The last thing we need now is for the Government to send the message that its resolve to address sex selective abortion is weakening and indeed, as far as Northern Ireland is concerned, evaporating.”
I will vote “Content” in favour of the amendment proposed by the noble Baroness, Lady O’Loan, and against the regulations.
I urge the House to reject these regulations by voting to support the amendment of the noble Baroness, Lady O’Loan. This is an urgent issue of democracy and of disability equality. As we have heard, the Northern Ireland Assembly has already said no to these regulations. If that was not clear enough, support for rejecting the regulations only increases when people understand that non-fatal disabilities have been included in these regulations, including Down’s syndrome. Taking this into account, 75 of 90 MLAs rightly rejected the disability discrimination inherent in these regulations. One Parliament cannot bind the hands of another on a devolved matter. Do not be deceived: these regulations go significantly beyond what was required by CEDAW and impose on Northern Ireland what we would never accept here. I urge this House to understand the importance of respecting the Northern Ireland Assembly. I urge this House to stand up for democracy and stand for disability equality and support the amendment tabled by the noble Baroness, Lady O’Loan, and vote “Content”, sending a message to the Government that they still have time to think again.
My Lords, the Northern Ireland Act does not limit Parliament to the recommendations of CEDAW; it is broader. This is an exercise of parliamentary sovereignty.
Secondly, it has been held in law that the unborn do not have rights under the European Convention on Human Rights. However, most of all, I draw attention to something shameful. There is respect for the foetus, I hear from our Northern Ireland colleagues. Why, then, until very recently, when the mother had her perhaps unwanted baby out of wedlock, were they put in mother and baby homes and Magdalene laundries, subject to arbitrary detention and forced adoption? There is a four-year, ongoing interdepartmental working group looking into the shameful treatment of mothers and babies in Northern Ireland, which the UN Committee Against Torture recommended. I do not understand this respect for the foetus if it does not carry over to the born baby and the mother, so I support the regulations.
My Lords, I shall support the regulations and oppose the two amendments. I shall do so because we have to stop women from Northern Ireland having to travel to England for abortions. The consequence of these amendments would be to increase the amount of travel, and it would not lead to safety or the other changes that are being talked about. I am satisfied that 130 women, as I understand it, have already had abortions in Northern Ireland and have not had to travel to England in these dangerous circumstances, when travel should be much discouraged. The evidence of public opinion in Northern Ireland is that they want a change in the law and would welcome these regulations. When one looks at the detail of it, the younger people in Northern Ireland are even keener on the change, as they were in the Republic. Therefore, I am satisfied that this is the right way forward. It is in the interests of human rights and something that the women of Northern Ireland have wanted for many years.
My Lords, these regulations emerge at the end of a drawn-out process. Yes, it is a conscience issue and a difficult one, and people will express, and have expressed, their own views and will no doubt vote accordingly. Yet I point out that these supporters of the amendments are mostly opposed to abortion in almost any circumstances. I believe that these regulations represent a crucial step in the rights of the women of Northern Ireland, which also featured little in the pro-amendment speeches.
During the three years when Northern Ireland was denied a functioning Assembly and Executive, the unfairness and dysfunctionality of the abortion law in Northern Ireland came under increasing strain. Consultation and a referendum led to a radical change of the law in the Republic, and the Supreme Court made it clear that the lack of a clear law on abortion in Northern Ireland was in breach of human rights. The CEDAW convention certainly may not mention abortion, but it absolutely talks about the criminalisation of abortion—or rather it does not, but its interpretation views it—as a clear discrimination against women, which CEDAW is obviously there to uphold against. The gap between the law in Northern Ireland and the rest of the United Kingdom is putting women in Northern Ireland under intense and unfair pressure. It effectively was exporting abortion services to Great Britain and, as has been said, not every woman was able to or could afford to access that route.
Had the Assembly been in operation over the past three years, it would have had to address this issue. Had it done so, Members of the Executive could not have ignored the Government’s support of CEDAW and its inference, nor could they have ignored the Supreme Court judgment. The British Parliament had no choice but to recognise its responsibility and, indeed, the wish of a huge swathe of opinion across Northern Ireland. The anomaly in the law created pressure for this UK Parliament to act, which it has done. These regulations are the last step in bringing about the change to the law, and it is important to stress that their application rests on the rigorous standards of the health professionals who, in my view, appear to have been impugned by some of the speeches made today.
There are two ironies to be noted. The nationalists now find that, had the law not changed, the north would have been significantly out of step with the Republic. Unionists, by contrast, can hardly maintain their insistence on being thirled to the United Kingdom but not accept that basic human rights must be uniform across the UK. On a practical point, very little has yet changed for women in the north seeking an abortion, although the noble Lord, Lord Dubs, indicated that a start has been made.
Can the Minister give an update on what abortion services are now being made available to women in Northern Ireland? Can he indicate what guidance can be given to women needing access to abortion pills? Will he acknowledge the stress that women face approaching the 12-week deadline—or indeed, any deadline—while lockdown continues? Is it not safer to give online advice to take pills safely at home, with appropriate guidance, rather than force women to travel to access services and take greater risks of infection—or, indeed, if they are unable to do that, face being prevented from travelling and being unable to access the service they need at all?
These regulations are a necessary instrument to deliver the change in the law which this Parliament has supported and for which the Northern Ireland Assembly has abdicated its responsibility for over three years. Indeed, if the amendments were upheld, there would be no law of abortion functioning in Northern Ireland. Neither those who wish for a regulated and proper form of abortion nor those who are opposed to abortion would have the law on their side. Therefore, it is imperative that we support the regulations and reject the amendments.
My Lords, it is exactly a year ago yesterday that the noble Lord, Lord Duncan—then without his beard—and I sat opposite each other across the Dispatch Box. We had a long and detailed debate on this very issue of abortion in Northern Ireland while discussing the Northern Ireland (Executive Formation etc) Bill, which is now an Act. It was evident then, as tonight, that this is a subject on which there are strong and deeply held convictions. For some, no law permitting abortion could ever be acceptable. For others, it is a fundamental issue on both health and human rights grounds that abortion services should be available safely and within a legal framework.
Until the Northern Ireland (Executive Formation etc) Act, it remained a criminal offence to access abortion in Northern Ireland in almost any circumstances, unlike in the rest of the UK. We have heard about CEDAW this evening, which specifically referenced the Northern Ireland position as a “grave and systematic” violation of rights. The UK Supreme Court in 2018 found that the law on abortion in Northern Ireland was, as we heard earlier, “untenable and intrinsically disproportionate” and in need of “radical reconsideration”. It made particular reference to abortion not being legal even when pregnancy was as a result of rape. So, there was no access to safe and legal abortion in Northern Ireland other than through a very limited provision, which had itself faced a number of legal challenges and interpretations.
In the legislation last year, abortion in Northern Ireland was decriminalised. As a result, today, across the whole of the UK, existing legislation makes provision for the termination of a pregnancy. But it was also made clear last year that regulations would follow to put in place in Northern Ireland a framework for those abortion services, with guidelines on how the law would operate if the Assembly was not restored by 21 October 2019. In the event that it was not, it would be a statutory obligation for the UK Government to bring forward the regulations.
I appreciate that a number of noble Lords referenced in the debate that, last week, the Northern Ireland Assembly expressed a view against part of the regulations before us. However—this is an important point—it did not bring forward any alternative proposals to address the findings of CEDAW or the Supreme Court to make sure that, as part of the UK, Northern Ireland also ensures that it is compliant with the UK’s human rights obligations. If these regulations do not pass tonight, and if the fatal amendments of the noble Baroness and the noble Lord pass, the current legal framework, which is in place through the “made affirmative” order that we are discussing, will fall. It would remain the case that abortion is decriminalised and, as my noble friend Lady Hayter said, that the citizens of Northern Ireland could travel to the UK, with travel and accommodation provided, to access free abortion services—although that is extraordinarily difficult at the moment—but the legal framework as outlined in this instrument would not be available.
These regulations provide clear guidance, which is of paramount importance to healthcare professionals. It is highly significant that the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the BMA support the passing of the regulations and oppose the amendments; I am sure that other noble Lords have had similar communications.
On the specific issue of constitutionality, as was raised by noble Lords, it is highly unusual for this House to support fatal Motions through an SI; I think this has been done some six times since 1945. As an unelected House, our role on secondary legislation is limited and narrow. At times, that is frustrating, but it is the role of your Lordships’ House.
I have a couple of questions for the Minister, mainly about how services will be provided and, given that the UK Government have responsibility for complying with human rights obligations, as I understand it, what the Minister can do ensure compliance with these regulations. In his introduction, the Minister recognised that the Northern Ireland Assembly could amend the regulations in the future if it chose to do so. If it does, where does the responsibility lie for compliance on human rights issues, as outlined by the UK Supreme Court?
Also, as the noble Lord, Lord Balfe, mentioned, the BMA is concerned about the support available to women seeking advice and healthcare professionals. What action can be taken and what support can be given to provide exclusion zones outside confidential abortion services, thus protecting the women who need such advice and the people who work in them?
I support the regulations and oppose the amendments.