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House of Lords Hansard
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Trade in Torture etc. Goods (Amendment) (EU Exit) Regulations 2019
11 April 2019
Volume 797

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 15 March be approved.

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

The regulation prohibits the import and export of goods that have no practical use other than capital punishment or torture. These goods include, among other things: gallows, guillotines, electric chairs, airtight vaults, electric shock devices intended to be worn on the body, cuffs for restraining human beings which are designed to be anchored to a wall, batons and shields with metal spikes, and whips with barbs, hooks and spikes—a horrendous array of items. All of us are appalled by these instruments of torture, and the Government are clear that the trade in such goods from the United Kingdom is absolutely unacceptable. Their export and import are prohibited. The only exception to this rule is if the items are to be publicly displayed in a museum.

The regulation also imposes controls on trade in specified goods which have legitimate uses—for example, in law enforcement or medicine—but which also carry a risk of being used for capital punishment or torture. These goods with potential torture application include oversized handcuffs, spit hoods, electric-shock dart guns and pepper sprays. To further clarify which goods we are discussing, Annexe IV of the European regulation lists several short and intermediate acting barbiturate anaesthetic agents. These are goods that have legitimate use in medicine, in research laboratories and university chemistry departments, but which have also been approved for use, or actually used in, some countries either on their own or as part of a cocktail of other drugs for execution by lethal injection. We will not help any country with capital punishment and will continue to lobby against and seek to influence countries that continue to practise it, with a view to ending capital punishment. We do not license the export of these barbiturate products to countries that have not abolished the death penalty without an end-user assurance that they will not be used for capital punishment and we will not do so after EU exit.

I am sure that all of us will have the immediate reaction that it is terrible that the UK should be involved in any kind of trade in goods that could be used for capital punishment or torture. I am confident that we can all agree that the United Kingdom does not want to be a country that makes its living by trading in such possible tools of torture. I reassure this House that exports from this country of such goods have been minimal over the last decade, averaging 10 licences per year. We do not expect that to change. The type of goods exported under licence include handcuffs for prison use, pepper sprays for the police and prison service in such places as Australia and the Crown dependencies and barbiturate anaesthetic agents for laboratory testing.

Let me be clear on the purpose of these amending regulations. In the absence of these regulations, existing European Union law will not be effective in UK domestic law on the day we exit the European Union. These regulations are made using the affirmative procedure, because they delegate a legislative power to the Secretary of State. The regulations replace the Commission’s power to update the list of controlled goods with a power for the Secretary of State to update, exercisable by way of regulations made using the negative procedure. After EU exit, the legislation will enable the Secretary of State to control the export from the UK of the listed goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As far as is possible, the legislation will operate as it does now, but controls on the goods will apply when they are exported from the UK rather than from the EU.

Our export controls have an important part to play in promoting global security by controlling the goods that leave our shores. The Government have a responsibility to be prepared for any exit day scenario and we need to ensure that these controls continue to function. Exit-related legislation provides the necessary legislative building blocks to ensure readiness on exit day, whenever that is. The European Union (Withdrawal) Act enables a functioning statute book on exit day by providing Ministers with the tools to deal with deficiencies in domestic law arising as a result of our exit from the EU. Thus, these regulations take another step towards completing the legislative part of controlling the export of strategic goods in preparation for a no-deal exit scenario. The Department for International Trade will continue to work on providing detailed advice and guidance about export controls and trade sanctions. If these regulations are no longer required on exit day, we expect to revoke or amend them. Alternatively, commencement could be deferred to the end of an implementation period.

I take this opportunity to remind the House that these regulations are solely about preparing for European Union exit and ensuring that we have a functioning statute book in any scenario. They do not change policy. Broadly, all the provisions applying to exports from the EU customs territory today will instead apply to exports from the UK. For this reason, the Government have made every effort to provide certainty for businesses and the public whenever possible. In August last year, we published a technical notice on export controls, which explained our plans for post-EU exit export control licensing. We have also included EU exit advice, both in the export control training programme and at the annual export control symposium, and given extensive advice to key sector trade organisations.

To conclude, the legislation is necessary to ensure that we are prepared for EU exit and continue the ban on trade in torture goods and control the trade in goods with potential torture application. I commend the Motion to the House. I beg to move.

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

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

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

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

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

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

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

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

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

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

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

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

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My Lords, I thank the noble Lords, Lord Paddick and Lord Lennie, for their contributions to this very important debate on a very serious and important topic. I reassure both noble Lords and, indeed, the House, that the UK is a global champion of free trade, now and as we leave the EU. However, we also remain a strong supporter of export controls to facilitate responsible exporting. This upholds our commitment to human rights and international humanitarian law, as well as our domestic and global security. Ensuring that we have the tools to uphold those commitments, in any scenario, is what this statutory instrument is for.

A number of questions have been asked by both noble Lords and I turn to those now. They raised human rights, which are very important. The Government will not grant an export licence if doing so will be inconsistent with the consolidated criteria—in particular, respect for human rights and international humanitarian law. A licence will be refused where there is a clear risk that the items might be used for internal repression, including torture and other cruel, inhuman or degrading treatment or punishment.

Both noble Lords raised the number of licences; I can reassure them that it is 10 per year. It was very interesting to see, when I looked at the licensing data, what kind of sums we are talking about. For instance, for the United States and shackles, the quantity was 1:1. In Australia, 97 went to the prison service. With pepper spray and the Falkland Islands, the amount was 2,500 millilitres to the police service. In Saudi Arabia, the amount of barbiturate was 2 millilitres for research—possibly, I suspect, in hospital. That gives noble Lords an indication of the kind of figures and amounts that we are talking about.

Both noble Lords also raised the death penalty. Of course the UK condemns capital punishment in all its forms. The important points raised by the noble Lords are not the subject of this debate, although I understand clearly the point that the noble Lord, Lord Paddick, made on the wider issues regarding the death penalty.

I can reassure noble Lords that breaches of export controls are dealt with as an offence under the Customs and Excise Management Act 1979 with a maximum penalty of 10 years’ imprisonment or unlimited fines. I was very interested to hear that. The noble Lords also raised the list of items subject to control. As I said in my opening remarks, the Government are committed to robust controls over the trade in goods usable for capital punishment, and those controls will not be the subject of any free trade agreement with the USA. I hope that that gives reassurance to noble Lords. We are part of the global Alliance for Torture-free Trade. The United Kingdom is a member of the alliance because of EU membership, but will remain a member when we exit the EU.

The noble Lord, Lord Lennie, asked whether the regulations will create new or impose greater burdens on business. As I said, we are talking about only 10 licences that are granted per year. Some 70% are completed in 20 working days and our target for processing them will remain the same. We do not envisage that there will be any impact on the time taken to get the licence if we are not still part of the EU. I should also like to reassure the noble Lord that there will be no relaxation of the strict way in which the controls are applied. That will not change, as I think I have said a couple of times.

I come back to the impact of our EU exit on export controls, which I think was raised by the noble Lord, Lord Lennie. As the noble Lord knows, the domestic legal basis for export controls is the Export Control Act 2002. Our overall objective is to maintain the integrity of the export licensing system after the UK leaves the EU. The consolidated EU and national arms export licensing criteria will remain in force until such time as new or amended guidance is announced in Parliament. We aim to ensure that the UK remains compliant with its international obligations and that a minimal additional burden is placed on businesses as regards export licensing performance.

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

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

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

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

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The concern raised is such a fundamental matter—to remove something from the list is to enable it to be exported—that it has to come through the positive procedure. It has to be positively endorsed by both Houses rather than be slipped through—I am not suggesting that that would happen—by the Secretary of State’s action.

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

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

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

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I understand that the Minister is giving an assurance that the present Government, at this moment, have no intention of changing anything—but since politicians can change and no Parliament may bind its successors, in practice that does not give any assurance. If she is going to write, perhaps I could ask her to explain why the Government felt that the negative procedure was appropriate for making a decision of this magnitude.

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I have already undertaken to write, and I will explain that if I possibly can. I reassure noble Lords as much as I possibly can—because it is a serious issue—that if anything is taken off the list in Europe, it will be a matter for Europe. If we leave the EU, of course it will fall to the Secretary of State and the department to work closely with the EU and other partners to understand the reasoning, before we in the UK make or do not make any such decision.

I assure the House that the whole intention is to ensure that we are not exporting anything that does not fulfil our human rights obligations, and I will restate the point that I made in my opening remarks: we have a responsibility to ensure the safety and security of our people and this legislation supports that objective.

I hope that I have been able to answer noble Lords’ questions as best I can, other than the issue about the negative and affirmative procedures—although I may have an answer now. I understand, in relation to the issues that have been raised, that the Secretary of State already has broad powers to amend export control lists by negative procedure for arms and other items —so that is consistent with the use of the negative procedure here.

If there is anything further that I can add, I have already undertaken to write to noble Lords, because it is a very serious issue and I want to reassure the House on this particular point. But with that, I commend the regulations to the House.

Motion agreed.

Sitting suspended.