House of Lords
(5 years, 7 months ago)
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Royal Assent
Thursday 13th September 2018
(5 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 27 April 2018 - (27 Apr 2018)
Children: Covert Human Intelligence Sources
(5 years, 7 months ago)
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Baroness Jones of Moulsecoomb
To ask Her Majesty’s Government what is the youngest age at which a child has been authorised to act as a covert human intelligence source under section 29 of the Regulation of Investigatory Powers Act 2000.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, there are no national statistics currently available relating to the authorisation of juvenile CHISs. However, the Home Office has been made aware of academic research into the use of juvenile CHISs which contains a number of case studies. They include the age of the juvenile CHIS, the youngest of whom is 15 years of age.
Baroness Jones of Moulsecoomb (GP)
I thank the Minister for her reply. I had hoped that the Home Office would itself start recording the names and ages of these children, who are vulnerable young criminals who have been caught by the police and are then put straight back into criminal gangs to act as spies. Will the noble Baroness please commit the Home Office to keeping a proper record of these children—their names, ages and the serious crimes for which they have been arrested before being sent back into these gangs?
Baroness Williams of Trafford
I certainly will not undertake to commit the Home Office to giving the names of these individuals, because that would breach data protection laws. However, the Investigatory Powers Commissioner recently wrote to the Joint Committee on Human Rights with an estimate of how many children we are talking about. He estimates that there are fewer than 10 at any one time. He has now undertaken to collect statistics on the number of juvenile CHISs in place and will consider how that information and his oversight in this area can be appropriately included in his annual reports in the future.
Lord Paddick (LD)
My Lords, the United Nations Convention on the Rights of the Child states that the interests of the child must be paramount in all decisions and actions that affect children. When the Government recently decided to weaken the safeguards on using child informants, despite the environment in which they operate becoming more dangerous, they consulted the people who use these child informants but not one organisation or individual that is responsible for their welfare. Can the Minister explain how this is putting the needs of the child first?
Baroness Williams of Trafford
I absolutely dispute what the noble Lord has said because, far from weakening the safeguards, we have strengthened them by ensuring that the appropriate adult is someone who is professionally qualified to take on the role. The UK ensures that the principles of the convention are considered and realised through the approach taken, both in the legislation and in other measures, to ensure that children’s rights and interests are safeguarded.
Lord Elton (Con)
My Lords, can my noble friend tell me how the current legislation affects the keeping by local authorities of lists of children at risk of non-accidental injury and their passing of that information about those individuals to other local authorities when those children move into their areas of responsibility?
Baroness Williams of Trafford
As I am sure my noble friend will know, where there are safeguarding issues around children, information is shared, and certainly if the child moves from one local authority area to another. As the IPC has pointed out, the duty of care in the case of these children is absolutely paramount.
Lord Judge (CB)
Would the Minister reflect that one possible way of alleviating understandable concerns about the use of young people in the way that is currently under discussion would be to extend the oversight and authorisation responsibilities of the judicial commissioners of the IPC?
Baroness Williams of Trafford
I thank the noble and learned Lord for our conversation on this matter. Of course, that would require a change in the legislation, but we consider that this enhanced authorisation, which has been in place for 18 years and approved under the leadership of successive Governments, is robust. It is subject to enhanced safeguards and strong and effective oversight. It should command confidence.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, can the Minister tell the House how the safety of the child is ensured when they are put in these dangerous situations where serious criminality is suspected of taking place? That can include the children providing information about their parents and other close family members to the authorities.
Baroness Williams of Trafford
The noble Lord asks the right question. The child’s safety remains paramount. Enhanced risk assessments are required before the CHIS is tasked and are reviewed and updated throughout the duration of an authorisation. They are also updated after an authorisation is cancelled where contact with the CHIS is maintained. In the case of children aged 16 to 17, the law recognises that these assessments must be done on a case-by-case basis. Therefore, the presence of a responsible adult may or may not be required at that stage.
Baroness Warsi (Con)
My Lords, when these assessments are made of child informants, can my noble friend confirm whether an appropriate adult or guardian is part of that process? Can she also confirm whether the safeguards that we have in place for child informants in the United Kingdom apply equally to informants overseas?
Baroness Williams of Trafford
I cannot answer the latter part of that question, but I will write to the noble Baroness. If a child is aged under 16, an appropriate adult—though not necessarily a guardian, because there may be conflict in that relationship—will be present in every case. Children aged between 16 and 18 are assessed on a case-by-case basis.
Baroness Whitaker (Lab)
My Lords, even with all the safeguards mentioned by the Minister, is this not still exploitation of children?
Baroness Williams of Trafford
The noble Baroness asks a very pertinent question. This is not a comfortable or easy arrangement. She will know, of course, that it was brought in by the Labour Government in 2000. With the safeguards that are in place and the work that needs to be undertaken, all these things are taken into consideration.
Lord Tebbit (Con)
My Lords, would my noble friend agree that it is overwhelmingly in the interest of the child that he or she should grow up in a society in which crime is reduced? That is the purpose of the measures that are being undertaken.
Baroness Williams of Trafford
My noble friend puts it absolutely succinctly and correctly: the overall aim is that children should grow up in a society free of crime.
Visas: Certificates of Sponsorship
(5 years, 7 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what assessment they have made of the impact of changes to arrangements for Certificates of Sponsorship, in particular those affecting artists visiting the United Kingdom for music festivals.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, we welcome artists from across the world visiting the UK to perform in music festivals, recognising the needs of the creative arts and to promote the creative industries. Specific arrangements were introduced in 2008 under tier 5. While there have been no changes to these, we recognise concerns raised by the sector about the operation of tier 5 in specific areas and we are working with it to understand and address them accordingly.
Lord Clement-Jones (LD)
My Lords, the UKVI now seems to be telling its officers that all non-EU entertainers need an entry visa if they come through Ireland, whereas previously, certificates of sponsorship could be presented and activated when they came to Britain. This change was not announced publicly and no proper consultation with the music industry took place. It was taken unawares and the new requirement has had a major impact on major summer music festivals such as Glastonbury, Edinburgh, Glyndebourne, Reading and Leeds. Is this the hostile environment we can now expect for all artists—whether they are EU citizens or not—if Brexit takes place? Is the Home Office now dictating our cultural and creative exchanges?
Baroness Williams of Trafford
I hope the noble Lord could concede that it is not hostile; it is quite the opposite. There has been a change in how the tier 5 route is implemented when individuals enter the UK, particularly from Ireland. Because there are no routine immigration controls on these routes, the correct form of entry clearance cannot be given and the certificates of sponsorship therefore cannot be activated. It has nothing to do with exit from the EU. Work is well under way to identify a workaround for the tier 5 concession route when entering the UK from Ireland to avoid the requirement to obtain a visa before arrival. I hope that gives the noble Lord some comfort.
Lord Watts (Lab)
My Lords, the music industry is very concerned about the ability of many artists and bands to move around Europe—if we leave the EU—fairly freely, with little bureaucracy. What will the Government do to make sure those artists are still allowed to ply their trade as they are at present?
Baroness Williams of Trafford
My Lords, the UK, more than perhaps many countries, absolutely welcomes the creative industries. We want artists to come here and to be able to perform. It is the reason why, as I tell the noble Lord, we are looking at how to work around this issue. It is a result not of border control but of no immigration controls on these routes, and we are therefore trying to work around it. It is nothing to do with Brexit.
Lord Foster of Bath (LD)
My Lords, it is clear more generally that the rules around writers, artists and musicians coming to the United Kingdom are complex, opaque, very costly and damaging to our reputation as a cultural hub. Having abolished the UKVI’s arts and entertainment task force, which could have helped resolved these problems, will the Government now at least consider a system of direct contact with UKVI for artists and promoters, or an online update system so that they can check where quicker progress can be made and so that there are fewer errors?
Baroness Williams of Trafford
At the risk of repeating myself—I will take up the noble Lord’s point about the UK arts and entertainment committee—we are looking for a way around what is creating problems for these artists. We are in no way trying to restrict their entry; we absolutely welcome them.
Lord Geddes (Con)
My Lords, what instructions, if any, are given to our embassies and consulates abroad regarding the issuing of visas to these artists?
Baroness Williams of Trafford
What I can do for my noble friend is check up on the advice that is given, but I am sure we are looking around this issue. I am sure that the advice is clear: we do not want artists who enrich our lives and our society to be impeded in any way.
Lord Cashman (Lab)
Will the Minister agree to consult with the talent unions such as the Musicians’ Union and Equity, which are often consulted on and engaged in the international exchange of talent?
Baroness Williams of Trafford
I know that the Government have been engaging with the sector. I shall double-check with the talent unions and if they have not been engaged with I shall make that suggestion.
Baroness Smith of Basildon (Lab)
My Lords, the noble Baroness says that we are working hard to understand this. She is sure that advice is given to our embassies abroad and that we are looking for a way forward. Does she not understand that, while they are working hard to understand it and looking for a way forward, this is having a devastating effect on the cultural life of the country and an impact on the economics? The organisations that are expected to bring artists over, but at the last minute find they are unable to do so, have an economic deficit in their accounts as well. The noble Baroness sounds a bit complacent. I hope she can move with some urgency to resolve this as soon as possible.
Baroness Williams of Trafford
I am not complacent at all. I recognise completely the value that the entertainment industry gives to society and, of course, the economic value. We are working through a solution that will help those people entering through Ireland. It is predominantly an Irish issue.
Lord Newby (LD)
My Lords, I think the noble Baroness said in an answer to an earlier question that there had been no change in policy since 2008. If that is the case, can she explain why the experience of people organising festivals and of individuals trying to perform at them has changed so dramatically for the worse this year?
Baroness Williams of Trafford
As I said, because of the lack of immigration controls on certain routes from Ireland to the UK, there have been difficulties around the certificates of sponsorship, because there has been no immigration official to hand the certificate to. That is exactly what we are looking at.
Housing: Local Plans
(5 years, 7 months ago)
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Baroness Thornhill
To ask Her Majesty’s Government, further to the announcement of a Housing Delivery Test in the revised National Planning Policy Framework published 24 July, what measures they will take to prevent developments which do not comply with local plans agreed at a local government level.
Baroness Thornhill (LD)
I beg leave to ask the Question standing in my name on the Order Paper and I declare an interest as a vice-president of the Local Government Association.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, the revised National Planning Policy Framework gives greater certainty to areas that are delivering developments in line with the local plan. However, where there is underdelivery, the housing delivery test will hold local authorities to account for their role in delivering the homes we need by making more land available through a buffer on land supply, or by invoking a presumption in favour of sustainable development. Additionally, locally produced action plans will enable local authorities to understand what is preventing plan delivery in their areas.
Baroness Thornhill
I thank the noble Lord for that interesting Answer. While the new NPPF has much to commend it, does he agree that this housing delivery test is set to become both controversial and challenging? What powers do the Government think local government has now, and what powers will it have in the future to hold the housebuilders to account for prompt completions following planning permission, as this housing delivery test demands?
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness for her comments and her welcome to the National Planning Policy Framework generally. It certainly is challenging; the evidence is that local authorities are stepping up to the plate. Where they do not, there is a sanction involving a buffer on land supply. But it is in response to what we regard as most important: providing housing for the nation. Last year—the last year for which records are available—we hit the best year for 30 years. Let me correct myself: only one year in the previous 30 was better. But there is still a challenge and that is why we are doing this.
Baroness Andrews (Lab)
My Lords, is the Minister aware that his noble friend, the noble Lord, Lord Porter, who sadly is not in his place, has come up with another prescription as to how the country might meet his targets? He said:
“To boost the supply of homes and affordability, it is vital to give councils powers to ensure homes with permission are built”—
and we know how many there are outstanding—
“enable all councils to borrow to build, keep 100 per cent of Right to Buy receipts and set discounts locally”.
Is this not the better prescription? Can he explain why the Government have not followed it?
Lord Bourne of Aberystwyth
My Lords, indeed, I wish my noble friend Lord Porter a speedy recovery, and he is well on the way to that. In his absence it is good to have the noble Baroness putting forward his views. In the meantime, we engage very regularly, as she will know, with the Local Government Association. Many good ideas come from it, and my noble friend Lord Porter does a very good job in putting forward the arguments for local government.
Lord Best (CB)
My Lords, did the Minister see the double-spread story in the Times last Saturday, headed:
“Help to Buy boom could leave a generation in negative equity”?
It shows how the scheme has helped housebuilders to double their profits while the number of the affordable homes they have produced has been halved from the local plans. I too applaud the revised National Planning Policy Framework, but can the Minister confirm that the contention by builders that they may not make a profit of at least 20% will no longer be used as the test for whether they can renege on their obligations to provide affordable homes?
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord for all he does in this area, which is considerable, and for his comments about the National Planning Policy Framework. On his question about the Help to Buy scheme, we should remember that more than 420,000 people have been helped to buy their own homes through the scheme. Yes, of course, we hold to account local housebuilders across the country for ensuring that they are delivering. We are constantly looking at the case for ensuring that, where there is a shortfall in delivery and they are at fault, we do something about it—so we expect them to step up to the plate. However, Help to Buy provides assistance for an awful lot of people who want to own their own homes and are unable to do so, and we should be thankful for that.
Baroness McIntosh of Hudnall (Lab)
My Lords, will the Minister please return to the question asked of him by my noble friend Lady Andrews and answer it? She asked him why the Government have not accepted the advice offered to it by their own party member, his noble friend Lord Porter.
Lord Bourne of Aberystwyth
My Lords, in fairness, I think that I said consult regularly my noble friend Lord Porter. We receive advice from all quarters and listen to it carefully. We will take forward some of the points that my noble friend has made and respond to them. Of course, he has a role to play in representing the interests of local government. He would be the first to acknowledge that, very often, we heed his words. I will give a more detailed response to the noble Baroness in relation to quite a few of the issues that she raised.
Lord Shipley (LD)
My Lords, I remind the House of my registered interests. Is the Minister aware of reports that approximately 160,000 homes could be built by bypassing local plans by 2020 as a result of the housing delivery test? Does the Minister recognise this figure? If it happens, what is the point of local plans?
Lord Bourne of Aberystwyth
My Lords, the local plan is paramount— the noble Lord, along with many people in this House, was instrumental in getting broad, cross-party agreement on the neighbourhood planning scheme. That will remain the case, but the National Planning Policy Framework will provide an overlay of the number of houses that need to be built in conformity with the national plan. I do not see any consistency there—it is something that we will watch like hawks—but the local plan is paramount in terms of the needs of an area. Related to that are the housing delivery plans, on which we consulted widely and for which there was significant support, as the noble Lord will know.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I declare an interest as a vice-president of the Local Government Association. The Minister will be aware of the hundreds of thousands of approved planning applications for housing across the United Kingdom where not a single brick has been laid by developer or builder. What is the benefit to local communities if the result of the test is just speculative, unsuitable developments that fail to meet local plans, fail to address local needs or have any connection with local demands?
Lord Bourne of Aberystwyth
My Lords, the noble Lord will have heard me just say that the local plan will remain paramount. He will also have heard me say that, last year, we had record delivery of housing—only one year in the past 30 was better than that. Last year, permission for 304,000 homes was given in the rolling year to 31 March 2017. That is the challenge we have. The noble Lord is right about some speculative building. He will know that we are looking at that and remember our response to it in the Housing White Paper—it remains very much business that we want to attend to. In the meantime, we should realise that we are making progress. We should not be complacent—there are challenges, which I freely acknowledge—but, against the backdrop of the challenge we have of 300,000 houses per annum, we will be treading on some toes to achieve it. I am sure that we will have widespread support for doing that.
Russia: Vostok 2018 Military Exercises
(5 years, 7 months ago)
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Lord Lee of Trafford
To ask Her Majesty’s Government what assessment they have made of the current major Russian military exercises, Vostok-2018.
Baroness Goldie (Con)
My Lords, as NATO has made clear in an official statement, all nations have the right to exercise their armed forces, but it is essential that this is done in a transparent and predictable manner. Vostok fits into a pattern we have seen over some time of a more assertive Russia significantly increasing its military capability and presence, and the UK and our allies will be observing the exercise closely.
Lord Lee of Trafford (LD)
My Lords, given the increasing assertiveness of Russia, evidenced by the scale of the exercise, its actions in Ukraine and Syria and submarine probing, and given China’s big increase in defence expenditure and establishment of new military bases, not just in the South China Sea, when will the Government accept the necessity to significantly increase defence spending, as called for by the Defence Select Committee and so many others? The Government cannot keep kicking the can down the road, sheltering behind the Modernising Defence Programme. Money is needed now, even if it means reducing the overseas aid programme and/or increasing taxation.
Baroness Goldie
My Lords, as I made clear earlier this week, the Government take very seriously their obligations to keep this country secure and safe and have an effective and workable defence capability. That, of course, is what the first step of the strategic defence review was all about, and it is certainly what the Modernising Defence Programme is about. That programme, I remind noble Lords, is to make sure that defence is configured to address the intensifying and more complex threats that we and our allies face, and to put UK defence on an enduringly affordable footing so that our contribution to national security and prosperity is sustainable over the long term.
Earl Attlee (Con)
My Lords, when was the last time the British Army deployed a largely fully formed and supported division into the field for movement and manoeuvre training?
Baroness Goldie
My noble friend asks a specific question to which I do not have any answer, specific or otherwise, so I shall have to undertake to write to him.
Lord Davies of Stamford (Lab)
My Lords, according to press reports the latest Russian tank has a range 500 metres longer than that of Challenger 2. If that report is true, it means that Challenger 2, despite the considerable improvements in its turret that have been made over the years, would be quite useless on the battlefield and would instead be simply a death-trap for its crew. Are those reports true? If they are, what are the Government doing about it?
Baroness Goldie
My Lords, I point out that good progress has been made since we launched the Modernising Defence Programme in January. I described in my earlier response what the two key aims of that programme are. We have reviewed our existing capability plans, we have begun to shape new policy approaches and to identify some investment priorities, and we have developed a blueprint for a major programme of top-down, transformative reform of defence. This is a holistic exercise, and one in which the MoD is carefully engaging to ensure that the vital needs I have already referred to can be met.
Baroness Smith of Newnham (LD)
My Lords, in light of Vostok-2018 and other Russian exercises in the Arctic and the Baltic, what assessment have Her Majesty’s Government made of the security of the high north? Is sufficient money being put into cold-weather training for our Armed Forces?
Baroness Goldie
In conjunction with our allies, not least our partners in NATO, we regularly review what is happening. As the noble Baroness will be aware, we are an important component in the Baltic presence, and with NATO we regularly review what the challenges are and respond to them as circumstances require.
Lord Howell of Guildford (Con)
My Lords, does my noble friend agree that with an economy the size of that of Texas, the Russian Federation’s real power does not really lie in these symbolic exercises and what are probably fake figures—I understand that they have been inflated by at least 100%—but much more in the electronic area and in cyber intervention, which can do real, immediate and devastating damage to the economies of the West such as ours?
Baroness Goldie
My noble friend makes a very important and perceptive point: that is a development to which the Government are very sensitive and about which they have been extremely vigilant. It is certainly something under the surveyance of the Modernising Defence Programme.
Lord Tomlinson (Lab)
My Lords, will the Minister make it abundantly clear that, while we all want to see a properly funded Ministry of Defence and Armed Forces, it is no part of the Government’s thinking to accept the advice from the Liberal Democrat spokesman who asked the Question to do so at the expense of the international aid budget?
Baroness Goldie
The noble Lord will be aware that there has been a lot of support across the Chamber for the Government’s approach to the international aid budget. The commitment that we have made of 0.7% of GDP is for the duration of this Parliament, and the Government take that undertaking very seriously. While I cannot commit beyond this Parliament, I am sure that it will remain very much on the radar screen.
Lord Marlesford (Con)
My Lords, do the Government recognise that, in the context of the Chinese collaboration in this big Russian exercise, relations between China and Russia will be a crucial component of world stability in the future? The great difference between China and Russia is that China has a considerable entrepreneurial streak, which Russia conspicuously lacks. China is unlikely to have forgotten the way in which Russia left it in the lurch when suddenly, in July 1960, it unilaterally withdrew from China all its experts, on whom China had become rather dependent.
Baroness Goldie
My noble friend makes an interesting point. I am certain that other global powers view history and come to their own conclusions about that history. In relation to China, it has a very significant global presence—not least through its economy, which includes opportunities for this country. I would observe that all nations have the right to exercise their Armed Forces and include their allies and partners in that activity. China has participated in Russian exercises before, so the co-operation on this occasion is not unprecedented.
Third-party Election Campaigning
(5 years, 7 months ago)
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Lord Harries of Pentregarth
To move that this House takes note of Part II of the Transparency in Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 and the effect it has had on third-party election campaigning.
Lord Harries of Pentregarth (CB)
My Lords, everyone is clear and in total agreement that third-party campaigning during election periods should be controlled by legislation—that is, campaigning by non-political bodies such as charities and pressure groups should be limited in the amount of money that they spend, as political parties are. However, there was widespread agreement among your Lordships that Part 2 of the lobbying Act, which sought to do this, was hurried and ill-thought-out legislation with no prior consultation. In response, the campaigning groups most affected by it, of all types and views, came together to form the Commission on Civil Society and Democratic Engagement, which I had the privilege of chairing. After extensive consultation with the sector around the United Kingdom, it produced four reports showing clearly the chilling effect the legislation would have on legitimate campaigning.
As a result, a number of amendments in this House were pressed to the vote. One in particular came to be accepted: that the legislation should be reviewed in the light of the experience of the 2015 general election. This was done by the noble Lord, Lord Hodgson of Astley Abbotts, who produced his very thorough and balanced report in March 2016. He made 29 recommendations but I will focus only on the six which are of most concern to the sector, plus an issue which has come to the fore as a result of the snap election last year, which revealed the retrospective nature of the legislation in such circumstances.
Recommendation 4 of the noble Lord’s report concerns how we judge whether a campaign is political. Many charities and pressure groups see it as an essential part of their remit to campaign, not least at election times. Being non-political, they are quite rightly prohibited from campaigning for a particular party or candidate. But how do we judge whether a campaign on a particular issue is party political in this way? The legislation as it stands uses the test of whether a campaign could be “reasonably regarded” as supporting a particular party or candidate. The noble Lord regarded that as unsatisfactory because it can create uncertainty in a third-party campaigning group about who this hypothetical observer might be and what they would judge to be reasonable. It can and has led them to be overtimid for fear of infringing the law, thus putting a damper on proper civil engagement. The noble Lord argued that this test should be replaced by the “actual intention” of the person undertaking the activity. Do they actually intend to support a particular party or person? The notion of intention is of course a complex one, both philosophically and legally, and the Electoral Commission was not happy about this new definition. However, I believe that the noble Lord, whom I am glad to say is down to speak next, will show how the points made by the Electoral Commission can be answered satisfactorily.
Recommendation 5 of his report concerns the public who are being addressed in a campaign. Members of an organisation who are sent material in the ordinary course of the year are not included in this category as far as registered electoral expense is concerned. In other words, organisations can continue to communicate with their members without that counting as part of their controlled expenditure during the election period. However, in this time of digital communication and social media, who counts as a member? Do committed supporters? My plea to the Government is that when they review the Act in the light of the noble Lord’s recommendations they genuinely consult the sector on this, as well as in other areas, of course. With the advent of the general data protection regulation, people now have to agree to receive information from organisations, and that may provide a category of exemption wider than paid membership but narrower and much clearer than “supporter”.
Recommendation 6 in the noble Lord’s report concerns the length of the regulated period when all expenditure on campaigning has to be accounted for. At the moment this is 12 months, a long period that involves third parties in a disproportionate amount of extra work and expenditure. The noble Lord recommended that the period should be four months, which would bring it in line with elections to the devolved institutions and the European Parliament. I am glad to say that that is supported by the Electoral Commission.
There is an added uncertainty and burden in relation to the regulated period if there is a snap election campaign, as there was in May. For the last 60 years, May has been the month of Christian Aid Week, when Christian Aid engages 20,000 churches and over 50,000 supporters in active volunteering, including knocking on doors to fundraise for the world’s poor. As Christian Aid has said:
“As the Lobbying Act unexpectedly swung into force because of the snap election, it created a red tape nightmare to cover our largest communications and fundraising activity of the year. We faced difficult calculations about whether the costs of certain materials counted in the regulated period, and whether those would have to be withdrawn or replaced at short notice and great expense. We had to create a huge amount of additional bureaucracy to monitor activities, to make sure Christian Aid Week was not seen as political. We spent a huge amount of staff time managing and recording all of this, just in case there was an accusation of being party political. We had many inquiries from supporters like: ‘Can we invite an MP? Can we organise a hustings? We’ve invited the sitting MP already, do we have to invite every candidate in the area?’ Even though MPs have been invited to their local churches for years to show their support, and the vast majority of hustings happen in churches at every election. The Lobbying Act is allegedly not intended to prevent normal charity campaigning activity, but in practice we found that it is cumbersome, unclear, high risk, and had a definite chilling effect—and thereby prevented our normal activity from being carried out”.
Recommendation 10 concerns staff costs, which have to be included in what counts as controlled expenditure. This is quite right if a staff member is employed to work full-time or mainly on a campaign, but what about the scores of people in an organisation who over a 12-month period, as it is at the moment, might have spent a small amount of time in relation to it? The result of the present legislation is an expensive bureaucratic nightmare. The noble Lord, Lord Hodgson, recommends that incidental costs and those below a certain de minimis threshold be excluded, with the Electoral Commission providing guidance as to how that should best be assessed.
Recommendation 17 concerns joint campaigning. This is another area that matters very much to the sector, for obviously it is much more efficient and effective for campaigning groups to work together if they can. However, at the moment, if they do so, each is liable to have the total expenditure attributed to it as part of its controlled expenditure. The noble Lord, Lord Hodgson, recommends that in a joint campaign there should be a designated lead campaigner, with minor campaigners being named but not obliged to register individually unless they individually exceed the spending limit, and that regulation in this area should be clear and simple to adhere to.
Let me give one example of what is involved in complying with the Act as it stands. Friends of the Earth’s declared regulated spend on campaigning activity in the 2017 general election was £43,000. However, although this included staff costs contributing to or undertaking regulated activity, it excluded—as is allowed—staff costs spent on complying with and reporting on the requirements of the Act. The complicated and time-consuming compliance requirements came at considerable financial cost. Friends of the Earth reckons that it diverted considerable resources—donated by members of the public—away from environmental campaigning, awareness raising and advocacy into bureaucracy. It estimates that these staff compliance costs ran to just over £17,000.
There is a similar story from the Quakers, who say that they had spent over the threshold limit for registering six months before the snap election was called, so when it was suddenly called, that expenditure became non-compliant. It is nonsense that the legislation is retrospective in that way.
Since the noble Lord’s report came out, two House of Lords Select Committees have come out strongly in favour of it. The Select Committee on Charities did so because campaigning is part of the lifeblood of so many charities. It stated that the recommendations,
“are eminently sensible and will provide reassurance to charities that they will not face censure for carrying out ordinary campaigning activity during election periods”.
The Select Committee on Citizenship and Civic Engagement did so because campaigning on important issues is obviously a fundamental feature of civic engagement.
Why have we not had the Hodgson report before this House? The Government have given two reasons. They are, first, because of the Electoral Commission’s doubt about the recommendation on the test of what is political from “reasonably regarded” to “actual intention”. As the noble Lord, Lord Hodgson, will show, this doubt can be met. The second reason is because of the shortage of parliamentary time, but it is essential that we have improved legislation in place in time for the next election, set for 5 May 2022. The present legislation involves third-party campaigners in a disproportionate amount of time and expenditure trying to conform to it, and it causes areas of uncertainty about whether they are conforming to the law, which may inhibit them from campaigning.
Earlier this year, the Sheila McKechnie Foundation released a report which strongly endorsed the earlier findings of the Commission on Civil Society and Democratic Engagement. It found that 68% of charities had changed their campaigning as a result of the Act and 51% said that it had affected their ability to achieve their mission. The report found that those who really lost out were the vulnerable and marginalised people whom charities worked with and supported, whose voices have gone missing from the political debate as a result.
To sum up, before the next election it is essential to: first, revise the purpose test, so that only spending on activities intended to influence voter choice are regulated, making it easier for campaigners to work out whether their activity is regulated; secondly, reduce the regulated period from 12 to four months; thirdly, change the retrospective nature of the rules so that they come into force only when a snap election is called; fourthly, improve the joint working rules so that no organisations have to report total costs, taking up the suggestion of the noble Lord, Lord Hodgson; fifthly, remove all indirect staff costs, so that campaigners have to count only activity that is wholly or mainly engaged in the campaign; and sixthly, consult seriously with third parties on how, in the age of social media and GDPR, “membership” can best be defined in a way that does not further inhibit or burden third-party campaigners.
My Lords, there are important things to be done irrespective of Brexit, and one of them is improving the ill-thought-out and chilling legislation of Part 2 of the lobbying Act. I beg to move.
Lord Hodgson of Astley Abbotts (Con)
My Lords, the noble and right reverend Lord, Lord Harries, has been kind enough to say some complimentary things about my review, and so I return the compliment by congratulating him on giving us the chance to debate this important topic. I also note the leading role that he has played, both personally and within the group that he led, before, during and after the passage of the Bill. I will come back to quite a lot of what he covered later on in my remarks, so I will turn to my main thrust and not answer some of his points directly at this point.
My review of Part 2 of the rather clumsily named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act was a statutory requirement—as the noble and right reverend Lord has pointed out—imposed by Section 39 of the Act. Admirably supported by a team from the Cabinet Office, over the course of a year I visited all the devolved Administrations and, during the 2015 general election campaign, visited several constituencies to see whether the provisions of the Act particularly pinched. We spent quite a lot of time looking at joint campaigning along the line of HS2, which had considerable local opposition, and took a great deal of evidence from individuals and bodies, several of whom have contributed briefings to your Lordships’ House for the debate today. I was very grateful to them all. My concluding report, published as Command Paper 9205, ran, I regret to say, to 99 pages.
I have a couple of general points first. One unexpected aspect of the evidence I received was how many people thought this was an entirely new Act. Of course, it is not an entirely new Act; it merely revises Part VI of the Political Parties, Elections and Referendums Act 2000. So the framework—not the detail—for regulating third-party lobbying had been in place for some 15 years. In many cases, people did not appear to understand this and their reaction to the Act was possibly, in part, as a result of not understanding what had always been required of them. Secondly, PPERA was passed in the year 2000; it is common ground among all of us that political campaigning in the year 2000 was light years away from where we were in 2015. The whole of the social media movement and industry barely existed in 2000, but now plays an increasingly important role and, unless I am much mistaken, will become even more dominant in the future as data mining—the ability to identify individual citizens’ preferences—becomes more widespread and effective.
The fundamental principle that guided my review—summarised on page 14 of my report—was to ensure that public trust and confidence in the integrity of our electoral system was maintained while, at the same time, not shutting off the historically rich diversity of public participation and involvement in our elections. The weight of evidence that I received was overwhelmingly that these twin objectives could not be maintained without an up-to-date statutory framework. I therefore saw no grounds for proposing the repeal of Part 2 of the Act. Most commentators on Part 2—and indeed the noble and right reverend Lord, Lord Harries, himself—focus on the charity and voluntary sector. That is fair enough, but Part 2 does not apply just to voluntary groups; it applies to every organisation—commercial or otherwise—some of which may have more obscure origins and objectives. I am afraid that the charity and voluntary sector, which I greatly admire and support, is not peopled entirely by angels. While the overwhelming proportion of charities behave properly, there are outliers who behave less well. We have seen examples of this in recent years. It is these outliers who set the political weather.
Much has been made by the noble and right reverend Lord, Lord Harries, of the so-called chilling effect of Part 2 of the Act. We need to be careful to distinguish between a novelty effect and a chilling effect. In 2015, the first general election at which the Act was in force, individual groups found it hard to get consistent advice from their lawyers, the Charity Commission and, most importantly, the Electoral Commission. Indeed, in my review, I made a number of specific recommendations as to how the role of the Charity Commission could be made more user-friendly, particularly in respect of smaller campaigning groups. In my view, the passage of time and greater experience will smooth away some of the edges of the so-called chilling effect. Nevertheless, the title of my report, Third Party Election Campaigning – Getting the Balance Right, indicates that I did not conclude that everything in the garden was rosy.
During the rest of my remarks, I want to draw the Government’s attention to three major areas which, in my view, require urgent attention. In large measure, I am running in parallel with what the noble and right reverend Lord, Lord Harries, has been saying. The first is the intent test. I concluded that the provisions of the Act should be focused solely on what I called electoral campaigning—activities intended to influence individual voting choice in the run-up to and during a general election campaign, at a time when the general public are, so to speak, switched on to the electoral process. This activity is distinct from what I called advocacy—the business as usual of a particular campaigning group. It is also different from political campaigning—direct approaches to political parties, MPs or Members of your Lordships’ House.
As the noble and right reverend Lord, Lord Harries, has pointed out, the statute currently catches any activity which can be reasonably regarded as intended to procure electoral success. The challenge is that what can be reasonably regarded may change from person to person and over time. An example may help illuminate my point. Suppose you run a small charity which opposes the export of live animals. In the midst of a general election, a number of calves are found dead on a ship in a channel port. You find yourself in the middle of a media storm, trying to balance achieving your charity’s strategic objective of banning the export of live animals, while avoiding the electoral implications of the statements you may be making. This is not an easy balance to achieve and one where actions taken under extreme pressure during a general election campaign may appear less well thought through at subsequent, calmer and more reflective times.
Happily, there are two possible solutions. First, the Representation of the People Act 1983, which covers local elections, has a test of intent which has stood the passage of time. It could easily be transferred to this Act. If this approach did not appeal to the Government, it would also be possible to establish a code of practice which would be approved by Parliament, compliance with which would provide a statutory defence. In my view, adopting either of these approaches would end the argument about chilling once and for all.
My second point concerns an area where the provisions of the Act are, in my view, too loose. This is the issue of what constitutes a member. As the noble and right reverend Lord, Lord Harries, pointed out, the members of an organisation can quite rightly be communicated with without falling foul of the provisions of the Act. The Electoral Commission has devised what it calls a “committed supporter”, which in my view is insufficiently clear. In an age of social media, it is too easy for an organisation to mail thousands of individuals at near zero marginal cost, inviting them to tick a box to become a committed supporter. Indeed, it is possible to consider that in due course you will have a negative pledge: if you do not tick a box, you will be considered to be a committed supporter. My report therefore suggests that a much higher degree of commitment is needed, which I describe as a “constitutional member”, and I suggested various yardsticks by which that could be measured.
My third and final point concerns imprints. Noble Lords will be familiar with the requirement for political parties to put an imprint on all their printed material—published by so-and-so at such and such an address for such and such a candidate. In my view, third-party campaigners who have registered with the Electoral Commission under Part VI of PPERA should be required to disclose this fact on all relevant material together with their internet and social media pages. Surely the general public are entitled to be put on notice where individual third-party campaigners are undertaking a particular degree of electoral activity at election time. Transparency demands no less.
To conclude, naturally I was pleased that my report was generally well received by the voluntary sector, the legal profession, the Charity Commission and, with the proviso that the noble and right reverend Lord, Lord Harries, mentioned about the intent test, by the Electoral Commission, as well as at least initially by the Government. I have been disappointed that government support has subsequently gradually ebbed away.
As my report went to the printers, the Law Commission produced a heavyweight study on general electoral law, outlining a good many deficiencies, inconsistencies and confusions which needed remedying. In an increasingly cynical age, it must be more than ever important that our fellow citizens have confidence and trust in all aspects of our electoral system. I therefore still treasure the hope that the Government will, in due course, find time to pull both these reviews together and so give the country an electoral system fit for the modern age.
Lord Judd (Lab)
My Lords, I am sure that the whole House would like to put on record how much it appreciates the fact that that the noble and right reverend Lord, Lord Harries of Pentregarth, has introduced this debate. He has a long-standing commitment to the charitable sector and has been a steadfast representative of it in the issues that we are discussing. I have a personal reason to be grateful to him, because when he was Bishop of Oxford I was a member of his diocese, and in the early 1990s he asked me to chair the diocesan board of social responsibility. That board was made up of the most committed people working in the front line of social challenge, and it was a stimulus and a challenge to work with such people.
We also have every reason to be grateful to the noble Lord, Lord Hodgson of Astley Abbotts, because he too has been a steadfast ally of the voluntary sector and has brought a lot of wisdom and good guidance to bear, as we have heard this afternoon. He always speaks in constructive and helpful ways about the problems that confront us.
I declare an interest: for a great deal of my life, I have been heavily involved in the charitable sector, both professionally and voluntarily as a trustee. I will give a few examples because I think my background will help the House understand how strongly I feel about these issues. I was glad to work with the noble Baroness, Lady Stern, when she led Nacro, and to serve on the Nacro board; incidentally, my noble friend Lord Christopher was chairman of the board at that time. I have also been privileged to work as general secretary of the International Voluntary Service, director of Oxfam and director of VSO, as well as being president for six years of the International Council of Voluntary Agencies, which brings together organisations involved in voluntary activity from across the world, with its headquarters in Geneva.
The relationship between the role of charities and the issues of politics is terribly important. I have formed a strong view that, in many charities large and small, there has been an outstanding cadre working for those bodies and serving the public. They have been outstanding intellectually, in their moral commitment and in their effectiveness. I saw how the Civil Service, for example, came to enjoy working with the charitable sector, discussing and evaluating issues that faced us and working out the best way forward. What has happened, it seems to me, is that charities have matured and grown up. I am not sure that this was not always true. Was Wilberforce campaigning or was he administering a charity? Of course he was campaigning, and in many ways he was very active in his interface with politics, including mainstream politics.
What charities—both leaders and ordinary people in charities—have come to understand is that it is not good enough just to minister to those in need: the casualties and the victims. If one was not using the experience gained by doing that to speak out and help the public and society as a whole to understand the nature and origins of the problems with which charities are dealing, and their need to raise funds, one was in many ways betraying their very objectives. I do not put it too strongly when I say that, by the time I had finished my professional work in the charitable sector, I had become totally convinced that responsible campaigning—I emphasise “responsible”—was one of the most effective ways of serving those we sought to serve.
The most effective charities had a very special contribution to make because they spoke not just with intellectual and moral force but with the authority of engagement and experiences. How many people who tell us what is wrong with charities have themselves ever really engaged in the work in which the charities are involved? Of course, some have, and that is very good, but I suggest that more could.
If I had the opportunity, I could spend some hours giving examples to show why I personally became so engaged in this work. I remember once, after a long overnight bus journey, ending up in a dusty township in Brazil in the early dawn. There was a quiet stillness about the place. I was with the field director and as we looked up, perhaps a bit sleepily, we saw a great banner around the spire of a church. I asked for a translation and it said, “Prison bars will not prevent the truth escaping”.
When I got into discussion with the people there, I asked what it was all about, and it was clear that there was a lot of strong feeling in the community. Poor peasants had been working on land on which they had worked for a long time but a greedy landowner—“land-grabber” would be more appropriate—recruited some toughies to drive them off their land. With no social security and no other means by which they could make a living, what were they to do? They were taken before the local judge, who told them that they had to get off the land. However, they had no alternative but to stay if they were to exist, so they went back to work the land. They were then taken before the judge again and the leaders were thrown into prison.
People noticed that some of the judge’s land had cattle on it that looked awfully like the cattle that had been on the land-grabber’s land not long before. We sat down with the community and asked, “What do you really need at this juncture?”. They said that what they really needed were the bus fares to get to the provincial capital so that they could take their case to the provincial court. The field director and I did some work on the back of envelopes and so on, and thought that we could just about assure that they had the bus fares to get to the provincial court. Imagine my joy when I got back to Oxfam’s headquarters in Oxford and received a telex saying that the provincial judge had released the men, they were back on their land and the local judge was in prison.
That illustrates the nature of what real charity is facing, and is a particular example; but I think also of the Bishop of Chiapas in Mexico, who did such valiant work with the people of Chiapas, who were constantly being harassed by the authorities. He said to me, “You can’t be neutral in a situation like this; you have to stand up and be counted”. He continued, “I believe that solidarity is the real meaning of charity. How far are we really speaking with and for these people, as distinct from about them, to them and at them?”.
That is what mature charities, large and small, working domestically, nationally or internationally, have discovered—that to be true to their purpose, motive, cause and objectives, they must speak out in a democratic society and share what they have come to learn.
Lord Wallace of Saltaire (LD)
My Lords, in view of the strictures of the noble Lord, Lord Judd, on those of us who may not understand charities, perhaps I should start by declaring that I have been a trustee of one musical charity for some considerable time and have been the chair of a musical charity that concerns not just musical performance but education and some campaigning for improved musical education. When I was chair of the trustees I did my best to observe the rules for which, as a Minister, I had been responsible; namely, that one should not serve for too long as chair of trustees. I made speeches on the sad decline of music teaching in schools and the need to reverse it. That is advocacy; that is one side of the line between advocacy and party-political campaigning. I think that actually the line is not too difficult to see.
This is familiar territory for me. I recall many long discussions with the noble and right reverend Lord, Lord Harries, and the Commission on Civil Society and Democratic Engagement when, as a Minister, I piloted the transparency of lobbying Bill through the Lords five years ago. We argued then that they were misinterpreting the purposes and potential impact of the Bill, which was concerned to protect the integrity of the electoral process from incursions of money from outside, and from single-issue groups targeting specific candidates and parties on the scale that we were already observing in other countries, most evidently in the United States. We had witnessed that in previous British elections, after all; for example, I remember the fox-hunting lobby vigorously working to unseat a particular Liberal Democrat MP several elections ago, which contributed to her defeat.
The Act was not aimed primarily at charities. It was aimed at all third-party campaigners from all political perspectives and social and economic interests. Reviewing comments from the NCVO, the Electoral Commission and others on the impact of the Act so far, I am struck by the frequency of references to “misplaced” or “erroneous” perceptions, “exaggerated” fears, or even—from the review by the noble Lord, Lord Hodgson—“fundamental misunderstandings” from the charitable sector. The NCVO reiterates in a comment from 2017 that:
“The growing potential for third parties to improperly influence elections by spending lots of money on advertising means that we do have to regulate non-party campaigning”.
The noble Lord, Lord Hodgson, noted in his review—I hope he will not mind my quoting it—that,
“a number of third parties appeared not to have appreciated that Part 2 of the 2014 Act was not a ‘new’ piece of legislation, rather an expansion and tightening of the rules already existing under Part 6 of PPERA. In meetings held in the course of this review, more than one organisation recognised that they probably should have done more to consider their legal obligations at the time of the 2010 General Election under the pre-existing regime”.
During the lengthy discussions on what became the 2014 Act, I became increasingly sceptical about the motivations of some of those resisting the legislation. I recall being told in a meeting with staff from several leading development charities that they did not want to have to register because, “That would tell the little old ladies who give us money that we are a campaigning organisation as well as working for the poor in the third world”. I did not yet know that some development charities were also bending the rules in pursuing those little old ladies for funding. If they are campaigning organisations, they should be transparent about that and not attempt to hide it from those whom they pursue so hard for funds. I also remember charity executives admitting then that they had never bothered to read the Political Parties, Elections and Referendums Act 2000 or to understand what obligations they had under it.
My conviction that large charities need careful regulation—however benevolent their underlying objectives may be—was sharpened further when I served on the inquiry into charitable fundraising two years later. We listened to the head of one major charity explain to us why his charity ignored the Telephone Preference Service—because the need is so great, we were told—and another admit that he had never looked into how the commercial telephone agency that his charity employed to fundraise operated. As the House of Lords Select Committee on Charities declared:
“Accountability and transparency are essential for charities to ensure they function properly”.
I welcome the proposals in the review of the noble Lord, Lord Hodgson, and regret that the Government have not found time to introduce some amendments to the legislation. I hope that the Minister will be able to tell us that the Government will do their utmost to find time for the modest amending Bill required during the next Session. Here, as in so many other policy areas, all other measures are currently consumed by Brexit.
It is clear that we need to revisit and adjust the regulations covering political campaigning on a regular basis to keep abreast of what the Russians call “new political technologies”, which are transforming campaigns, such as data mining, as the noble Lord, Lord Hodgson, suggested, the use of targeted social media and other forms of online campaigning and advertising. We saw the use of those techniques in the 2016 referendum and the difficulties that the regulators face in keeping up with what is going on. We also saw in that referendum a classic example of a regulated campaign organisation getting around the rules by transferring surplus money to a third-party campaign.
We have not yet resolved the issues raised by questionable behaviour during the 2016 referendum campaign, including the use of data mining and social media. That demonstrates the weaknesses of the UK’s regulatory structure for campaigning. Continuing changes in political technologies and the exploitation of new media make it clear that we will have to revise and tighten the rules further.
There are other changes in charities and electoral regulation that we need to consider. The absence of a legal obligation for transparency in reporting significant sources of income allows foreign donors, companies with strong economic interests and others to fund think tanks and educational and religious charities that promote their vested interests without the British public understanding what is happening. That has been an issue with some Muslim charities in the past. It is still a live issue with libertarian think tanks.
I recall an article on funding for the Conservative Party that remarked that non-British sympathisers who wished to donate to the party were frequently advised to give their money to right-wing think tanks instead. That way, they could gain influence and credit with influential insiders without having to declare their donations. But many of these think tanks in effect act as third-party campaigners in British politics or even as lobbyists for the multinational companies and foreign billionaires who fund them. The Institute of Economic Affairs, for example, does not publish its sources of income, but publishes papers against further restrictions on tobacco and in favour of cuts in corporate taxation.
I would love to know where the funding for the TaxPayers’ Alliance and the Global Warming Policy Foundation has come from, and in particular how much of their funding has come from wealthy right-wingers across the Atlantic. I note that the Global Warming Policy Foundation has an affiliated US funding foundation, while the Koch brothers, who are politically engaged American billionaires, are reported as having funded at least some of the activities of the TaxPayers’ Alliance. However, their websites and annual reports do not tell me more. Transparency in funding should be required of them, too, as influential players in the British political debate. This calls for legislative changes the next time Parliament addresses charity regulation and third-party campaigning.
The register of third-party campaigners for the 2015 election campaign is a useful indicator of the case for regulation. It includes bodies that campaign for right-wing and for left-wing causes; Conservative Supporters Ltd and the Conservative Muslim Forum are classic third-party bodies, with the Independent Schools Council, Hope Not Hate and various animal rights groups on different sides of that impassioned debate. These and many other groups contribute constructively to our public debate, but there is a line between advocacy in the public sphere and the targeting of particular candidates and parties that is not too difficult to identify and which the Electoral Commission should rightly police.
I accept and regret the fact that both the Electoral Commission and the Charities Commission are underfunded for the regulatory tasks they are asked to fulfil. I note that innovation in campaigning techniques is running ahead of regulation and needs to be revisited regularly to keep up, perhaps through a parliamentary inquiry after every general election. I hope that the Minister will take that back to the Cabinet Office to consider. I also accept that some elements of the transparency of lobbying Act would benefit from amendment, in the light of experience so far and in the light of the helpful review by the noble Lord, Lord Hodgson, in particular on the reduction in the regulated period from 12 to four months. But I also contend that the chilling effect which the commission chaired by the noble and right reverend Lord, Lord Harries, warned of has not emerged and that the case for transparency and regulation of third-party campaigning by right-wing and left-wing bodies and from both domestic and foreign sources remains strong.
Lord Ramsbotham (CB)
My Lords, I too congratulate my noble and right reverend friend Lord Harries of Pentregarth on obtaining this important debate. Throughout the passage of the 2014 lobbying Bill through this House, my noble and right reverend friend was a tireless champion of the voluntary sector, and his having tabled this Motion shows that his commitment has not dimmed.
I was heavily involved in that debate, not least because I was extremely concerned about the effect that some of the provisions in Part 2 of that Act could have on voluntary sector organisations working within the criminal justice system. The aim given to the system by Prime Minister Tony Blair was to protect the public by preventing reoffending. The voluntary organisations play a major part in this, carrying out more than 50% of the work done with offenders. Much of that work is done by small, localised organisations working both in prison and in the community on behalf of the local public. They have nothing to do with party politics; nor are they organised in political constituencies. That is why I and others questioned the demands of the 2014 Act, which seemed to many to be a panic measure adopted by the coalition Government against lobbyists from America and the trade unions before the 2015 general election. For some reason, voluntary sector organisations were swept up in the resulting maelstrom, even though so many of them campaign only to tell the public what they are doing in order to raise funds for their work. This is a 365-day requirement and has nothing to do with general elections.
I can well remember meeting with the then Leader of the House, the noble Lord, Lord Hill of Oareford, and accepting his undertaking that the issue would be revisited after the 2015 general election, particularly those sections which have affected the voluntary sector, once the Government had had an opportunity to evaluate their involvement or otherwise. Based on his undertaking, I did not press to a vote an amendment that was debated during ping-pong.
The fact that my noble and right reverend friend felt it necessary to bring forward the Motion suggests that the Government have not taken full account of the recommendations in the report of the noble Lord, Lord Hodgson of Astley Abbotts, nor listened to the voice of the voluntary sector. The result is that many organisations feel that, far from the sector not understanding the legislation—as is alleged to be the view of many Ministers and officials in the excellent brief provided by the Sheila McKechnie Foundation—too many Ministers and their officials do not understand the voluntary sector. I have felt this to be the case ever since the Ministry of Justice claimed ownership of any organisation to which it awarded a contract. In many spheres of government activity—such as health, justice and immigration, to name but three—voluntary sector organisations are essential partners but not owned by the ministry that employs them. That would violate the aim of any organisation and render its trustees liable to litigation being taken against them.
Therefore, I strongly support my noble and right reverend friend in this latest attempt to ask the Government to think again about the implications of the Act for the voluntary sector, certainly that part of it which has nothing to do with the jurisdiction of the Electoral Commission. The voices of voluntary sector organisations need to be heard, particularly if they are partners in any government activity, because unless they are allowed to speak out about the problems they face, no Minister or official will be aware of the problems and be able to take action to mitigate them. I suspect that the authors of the Act did not fully realise the implications of what they were doing to the voluntary sector, but they can no longer claim such ignorance in view of what was said during its passage, particularly in this House and in the report of the noble Lord, Lord Hodgson of Astley Abbotts. I plead with the Minister to listen to those voices now, particularly the wise words of my noble and right reverend friend in moving the Motion, and agree to take back the need to revisit the parts of Part 2 of the Act that affect the voluntary sector—particularly those organisations that do not qualify for the strictures of the noble Lord, Lord Wallace of Saltaire, as was enunciated so clearly by the noble Lord, Lord Hodgson of Astley Abbotts.
Lord Suri (Con)
My Lords, it is a pleasure to speak on this subject. I thank the noble and right reverend Lord, Lord Harries, for securing the required time.
Many of us in this place will remember the big society initiative. Indeed, some of us had the chance to work on the plans and be consulted beforehand. The initiative failed but it hammered home the point that civil society and the charity sector have an enormous role to play in our society, both with a support function and as an outlet for voluntary activity. However, charities should be extremely wary of a number of things. Political campaigning is one of them. I have been disappointed recently to see a number of charities go beyond their remits to engage in political campaigns, using donations from members of the public and government grants to do so.
Recently, there has been a collapse in trust in charities in this country. The recent survey on trust in charities and the overseas development sector revealed a fall in the proportion of adults who said that they trusted charities “a great deal” or “quite a lot” to 54%, compared with 60% a year earlier. I find this a saddening state of affairs. British people still trust charitable sectors, but not to the extent that they will turn a blind eye to abuse and injustice. Recent scandals involving Oxfam and Médecins Sans Frontières have brought shame on the sector; trust must be rebuilt. Charities ought to focus on their charitable activities, rather than attempting to become similar to think tanks in producing policy reports, lobbying and running campaigns during elections and referenda.
The advantage of the Act is that it gives the public confidence that charitable institutions are being regulated on a similar basis to private enterprises and think tanks that might have an interest in voting behaviour and the influencing thereof. Indeed, it encourages charities to focus on their original mission and, when they do attempt to make political interventions, to be careful about how they go about it. This is particularly important in the case of elections.
There has been much talk recently here and in the other place about the overspending by both sides in the European Union referendum. That strikes a cautionary warning about the influence of money in our elections. Greenpeace and Friends of the Earth, which were quoted by my noble friends, were fined for running undeclared campaigns during the 2017 election, and the Electoral Commission noted that the manifesto scorecard published on Greenpeace’s website was a political judgment and liable to influence voting behaviour.
My sympathy is with charities when it comes to the actual legislation. It is true that the wording used can be unclear and confusing and, reading as a lay man, I would struggle to advise a third party on what they could do. This is a particular problem for the smaller charities, which may wish to bring up entirely legitimate and apolitical points but cannot for fear they might fall foul of the legislation. If clearer legislation cannot be produced in amended form, it would be a magnanimous gesture for the Government to lay out in clear English the precise rights and obligations of third-party organisations.
Lord Tyler (LD)
My Lords, I am delighted to take part in this debate. In response to the point made earlier by the noble Lord, Lord Judd, I suspect every Member of this House is involved in a number of charities and I have also been a full-time employee of a major charity in the past—so I have an awareness of their concerns and current interests.
We are enormously indebted to the noble and right reverend Lord, Lord Harries of Pentregarth, not just for securing this debate but for his leadership of the very important group that looked from outside Parliament at the work we were undertaking in preparation for the original Bill, and then through its passage and beyond. The four commission reports to which he referred are extremely important and I am glad that much attention is being paid to them today.
I am also extremely conscious of the importance of the work by the noble Lord, Lord Hodgson of Astley Abbotts. Noble Lords may recall that there was huge support across the House for the proposition built into the Bill that there should be a review. I acknowledge the success that the House had in doing that. I think that the Commons had not even thought that that might be useful and necessary; we thought that it was and we were fully justified by the very effective report that the noble Lord, Lord Hodgson, produced. In it he emphasised, as he has again today, the importance of the word “transparency”. That did not appear in the Bill’s title by accident. It is the purpose of the legislation. It might well be said that we need more transparency in other areas of politics—I shall come back to that—but that was a very important motivation.
The noble Lord said that it was important that the public—all of us—should be aware of exactly who third-party campaigners are and what they are spending. It has again been emphasised to your Lordships today that this is not a new concept. It was not suddenly thought in 2013-14 that it was desirable to do this; it went right back to PPERA in 2000. As my noble friend Lord Wallace of Saltaire, who was also involved in that process, emphasised, a great deal of thought went into trying to get the balance right. The fact that we did not get it completely right first time, as implied by the title of the review by the noble Lord, Lord Hodgson, may well indicate how important it is for your Lordships’ House and Parliament generally to undertake post-legislative scrutiny just as much as pre-legislative scrutiny. This is a classic case.
It would be worthwhile very quickly to refer to the excellent brief from the Lords Library on this debate, which summarises neatly the recommendations of the report from the noble Lord, Lord Hodgson, which are:
“A revision of the statutory definition of regulated activity. The report argued that the current definition of regulated activity captured activity that could be ‘reasonably regarded’ as intended to influence voters, which created ‘too much ambiguity’ about what expenditure on campaigning activity was regulated. Therefore, the statutory definition should be changed to ‘one of actual intention’ … A reduction of the regulated period before a general election from twelve months to four … Clarification on how staff costs should be regulated to ensure that work undertaken on electoral campaigning that is ‘incidental’ to a person’s normal job does not count … Registration with the Electoral Commission which is published on their website should provide greater transparency about each individual third party campaigner, and therefore more information should be provided as to the purpose of the campaign, where that campaigning is planned to take place, and broad estimates of likely expenditure … The Government and the regulator to monitor the use of social media to ensure that the regulatory framework continued to strike the right balance”.
All those recommendations are valid. They meet a number of the points made by the noble and right reverend Lord, Lord Harries, but they go beyond that. They open some very important questions about the integrity of our political process, especially in relation to social media. As a number of colleagues have said, life has moved on quite a long way since 2000—and even since 2014. While those recommendations echo some of those from the noble and right reverend Lord’s commission, a number of issues go beyond that which should now be taken seriously into account as the Government prepare for the next Session, which one hopes will not be dominated by the complete traffic jam of Brexit.
I am not sure that we have all yet taken full account of the changing circumstances to which the noble Lord, Lord Hodgson, and my noble friend Lord Wallace of Saltaire referred. For example, it is important to look back to some of the discussions that took place in 2014. For example, I recall my then noble friend Lady Williams of Crosby, who is an acknowledged expert on US politics because of her role at Harvard and a number of other roles on the other side of the Atlantic, warning of the increasing influence of a small group of right-wing billionaires in American politics outwith the party system. Indeed, since then I have read with huge interest the extraordinary book Dark Money, which is analytical and takes forensic interest in the way money is used in the United States. The Koch brothers, to whom my noble friend Lord Wallace referred, are among a number of people who have invested huge sums of money seeking to influence American politics outwith the party system.
Since 2014, we have had three important developments: Trump; the 2016 EU referendum, to which reference has been made; and the extraordinary increase in the amount of money invested between 2015 and 2017 in social media messages. Unsolicited campaign messaging in social media has exploded. Some say—I have heard the noble Lord, Lord Young, say it in the past—that we have no direct evidence that this is all very influential. Well, if it is not influential, it is an extraordinary waste of money.
On this side of the Atlantic, the increase in the amount of money invested by the political parties and by the campaign groups in the referendum in 2016, has been astronomical. It has gone from a few hundred thousand pounds in the case of the Labour Party to millions; and it has gone from millions to doubling millions in the Conservative Party—and, as my noble friend Lord Wallace said, we still do not know precisely how much money was spent by campaigning groups in the 2016 EU referendum. If all that expenditure had no impact on the result of the 2015 election, in the referendum of 2016 and in the election of 2017, the donors who provided all that money—whence I know not; in some cases, it was clearly foreign money—must surely believe that their money was wasted.
As has already been said, it is extraordinary that we have not caught up with the need for imprints on all messages to all voters that come via social media in the way that there has to be with written material. I understand that that was a requirement during the referendum on Scottish independence. Having learned the lesson that it was important then, why did the Government not insist on such an addition for the elections and the referendum that have taken place since? I understand that the Electoral Commission recommended that about 10 years ago, so it at least was ahead of the game.
I will refer briefly to two further issues, because we should take them into account during this one opportunity that we are likely to have in the immediate future to debate these important concerns, to which all Members have referred. Members of your Lordships’ House may recall that Lady Williams and I suggested at quite an early stage of the Bill that we should at least examine whether its provisions should exclude charities. A number of colleagues here today have said how it is charities that seem to have been most affected by the so-called chilling effect. We argued that, since charities are already subject to the requirements of the Charity Commission, there was a perfectly valid argument for saying that they should be excluded from the legislation and treated differently—and if it was necessary to improve or update the charities legislation, and the role and responsibilities of the Charity Commission, so be it.
We undertook to pursue this with coalition Government Ministers at the time, who were sympathetic to that view. However, the charities seemed ambivalent as to whether that would be to their advantage. Other organisations from a very different background, some of which my noble friend referred to—a rather more right-wing background, if I may put it that way, that was much more comparable to what was going on in the United States—were only too pleased to keep the charities with them. It gave them a degree of extra respectability; it was a sort of human shield for some of their less desirable activities.
I do not know whether the charities still feel that they should be subject to this legislation; clearly, if it was going to be a matter for review and amendment, we should look at it again. The Sheila McKechnie Foundation, which provided us with an excellent brief—not least because it was very brief: just two pages—made the point that the Act as it stands:
“Makes it harder for charities to pursue their mission”.
It reduces the abilities of charities and—a key point:
“The effects of the Lobbying Act on how charities approach campaigning can’t be isolated from other policies and opinions that reduce the ability of charities to speak out”.
It would appear that its representations are actually just about charities. If that is the case, we should be open and honest about this and say that it is an issue that may need to be addressed in due course. I very much accept what the noble Lord, Lord Judd, said about charities. I have been active in support of charities over many years and continue to be, particularly charities concerned with international development in Africa and Asia, and I entirely understand the point he made.
There is one other issue I will refer to briefly, because I think it is important: it has been referred to obliquely by other noble Lords. I believe that it is about time we made sure that there was an even playing field between non-party campaigning and party campaigning. The present restrictions on party campaigning are clearly no longer fit for purpose in the present world of social media. We have had a number of discussions in your Lordships’ House and in the other place on this issue. We really need to look at it very seriously. I know that there is a problem of time, but in due course I hope that we will get to a Session when we are not completely tied down by Brexit legislation—and it will be important, for reasons that have already been advanced, that all this legislation is reviewed before the next general election.
It is simply not true that there is effective transparency on national expenditure in constituency campaigns. The two regimes that apply, and the difficulties that the Electoral Commission and even the police have in dealing with what should and should not appear in the reports of constituency candidates and their agents, are clearly matters of real concern that affect the whole integrity of our electoral process. Similarly, I have already mentioned the lack of effective transparency on unsolicited campaign material, and the vast increase in expenditure with very little identification of where it is coming from and who is paying for it. For all we know, the biggest single investors, in terms of time and staff, in the British electoral process at the moment are some Russian guys: it is extraordinary, the way we have allowed that to happen. It is being examined very carefully, of course, in the United States, with no conclusion. It is being examined by the DCMS Select Committee in the other place, but we have not yet had an authoritative response from the Government.
Reference has been made to the extent to which non-party campaigners are suffering from a disproportionate impact. That is due partly to the fact that the clarity of the law in terms of party campaigners has not been completely resolved: it is still work in progress, it is unfinished business and it is urgent. There is a need for thorough parliamentary review and reform, to apply not just to the non-party campaigning activities that are important to this country’s democratic health but to party campaigning as well. I have a Private Member’s Bill that might go some way towards that, as the noble Lord, Lord Young, knows. Maybe, one day, there will be a chance to get to Committee on that Bill.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, first, as other noble Lords have done, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, for tabling this Motion for debate today. I bring to the attention of the House that I am involved as a trustee of two charities. The first is the United St Saviour’s Charity, which works with disadvantaged communities in north Southwark and has been doing so, following a bequest, since 1541. I am also involved with the Millwall Community Trust, which has not been around for quite as long but again works with communities, with young people, young men and women, in the boroughs of Southwark and Lewisham and helps them develop important skills. It is recognised as one of the earliest and most successful football charities. Neither of those charities engages in any activities that are covered by Part 2 of the Act we are debating today.
We have had the benefit of two general elections to see how the Act has operated—to see both what was stated to be the intention of the Act and the reality of the powers contained within it being in force. That benefit can inform our debates very well today. We have also had the benefit of the review undertaken by the noble Lord, Lord Hodgson of Astley Abbotts, which was set up by the Government and published in March 2016.
The Bill that became the Act was introduced into Parliament by the noble Lord, Lord Lansley, when he was in the other place as the Leader of the House of Commons. I am reminded that we were told and Members of the other place were advised, among other things, that the Bill would assist in making transparent who is lobbying whom and for what. It is fair to say that it did not turn out quite like that. The Bill was described on various occasions as hurried, badly drafted, sinister and partisan. It had a very limited focus and effect on lobbying and, as we know, was often referred to as the gagging Bill.
The Motion before us turns our attention to Part 2 of the Act, which concerns non-party campaigning. This is an area where there can be no doubt that the Act has had a major effect on the campaigning activities of charities. The noble Lord, Lord Lansley, had also told the other place:
“The Government’s clear view is that nothing in the Bill should change the basic way in which third parties campaign and register with the Electoral Commission”.—[Official Report, Commons, 3/9/13; col. 181.]
I contend that that clearly is not what happened and that we now find ourselves in a most regrettable position.
There have been rules about what third parties can do in elections since the introduction of the Political Parties, Elections and Referendums Act 2000, as the noble Lord, Lord Hodgson, made clear in his remarks. I agree with his comments about how campaigning has changed and am delighted that the noble Lord, Lord Young of Cookham, has agreed with me many times that our laws governing elections are not fit for purpose. I hope that we see action soon from the Government to address these major failings since, as the noble Lord, Lord Tyler, said, life has moved on. I also agree with the suggestion about having imprints in all social media now. The world has changed dramatically; we need to know who is putting this stuff out and why, and how we can get in touch with them if we need to deal with any issues of wrongdoing. It is really important that we know who is doing what.
Part 2 of the Act reduced considerably—by approximately two-thirds—the maximum overall spending limit, while widening the range of expenditure that has to be accounted for in the spending limit. It also introduced the concepts of constituency spending and targeted spending. The regulated period is one year before the general election but, as we saw last year, the Fixed-term Parliaments Act has been shown to be a weak, flimsy and easily-got-around piece of legislation. It is ridiculous and unfair that a charity campaigning on an issue could quite easily, through no fault of its own, have spent to the legal maximum before it was aware there would be a general election. How can it possibly plan like that? It is ridiculous.
It is worth pointing out that the inclusion of staffing costs in the overall expenditure limit is particularly unfair and quickly eats it up. I am sure it is particularly galling for charities and campaigners to realise that staffing costs are omitted from the national spending limits of political parties. If those costs were included, I suspect that one or two parties would find that they had spent their national campaign budget before they had actually started campaigning. Again, that is very unfair on the charities.
Overall, the Act has made it considerably harder for charities to campaign on the very core issues which are their reason for existing in the first place. My noble friend Lord Judd was absolutely right to tell the House about the engagement and experience of charities and the important work they do. The noble Lord, Lord Wallace of Saltaire, made points about accountability and transparency, which I am happy to agree with—with the caveat that Part 2 of the Act went too far and had a damaging effect on third-party campaigning.
I also agree with the noble Lord’s comments about certain think tanks. As he said, the TaxPayers’ Alliance and the Institute for Economic Affairs, to name but two, are somewhat opaque about where their funding comes from. They spend considerable time giving their views in the media but are less open about where their funding comes from. The sooner that they are required to declare where they funding comes from, the better—that would be a welcome move.
It is right, normal and legitimate and should be welcomed in a healthy, democratic country that organisations will engage in the democratic process. The Act has damaged that and made it much harder. Registered charities cannot endorse or support a political party or candidate anyway; that is illegal. Many noble Lords made reference to the Sheila McKechnie Foundation report and the excellent work that it has done on the impact of the Act. It found that people’s voices go missing from debate, and that is not healthy.
I agree with the noble Lord, Lord Ramsbotham, when he asked the Government to think again about the effects of the Act on legitimate campaigning undertaken by the voluntary sector. The noble Lord, Lord Suri, is right that where charities, people who work for them or volunteers have done wrong they must be held to account—we would all agree with that—but, as the noble and right reverend Lord, Lord Harries, and my noble friend Lord Judd said, campaigning for change is a perfectly legitimate role for charities to undertake.
Let us be clear that campaigns and campaigners can be irritating, especially for Governments and people in power, but that is of course part of their role. It does not mean that they should not be heard. Charities feeling that it is harder to pursue their mission, or those organisations working on politically sensitive and controversial issues being particularly at risk, is not a good place for us to be. Smaller organisations are affected by the impact on coalition working, and that again is again very concerning.
It is very hard for charities to ensure that they remain on the right side of the requirements of the Act, and that has understandably led to many of them taking a very cautious approach and, in some cases, avoiding activity where there is any question of uncertainty. This has resulted in significant resources of time and money being diverted to compliance work rather than their core activities, and in some cases campaigns have stopped completely. As I have said, I think that is all very regrettable and damaging to civil society, but it is part of a wider set of activities that the Government have embarked on in recent years.
During this debate a number of noble Lords have referred to a review conducted by the noble Lord, Lord Hodgson of Astley Abbots. This was a government commitment to review Part 2 of the Act after the 2015 general election, which was very welcome. The noble Lord spent a lot of time on his review, which was published in March 2016. When it was published, it was broadly welcomed by the charity and voluntary sector and by the Government. The House of Lords Select Committee on Charities described the recommendations as eminently sensible and recommended that the Government implement the review in full.
As we have heard, the proposed reforms sought to address the problem that the noble Lord identified with this part of the Act, which he believed—and I agree with him—failed to get the balance right. The noble Lord did not suggest that this part of the Act should be repealed but sought some sensible changes: a shorter regulatory period, from 12 months to four months, to help campaigners; clarification about what happens in the context of a snap general election—of course, a year later we had one, which we had to deal with; and clarification about joint working. The reforms sought to deal with some of the problems that have been identified as causing charities and the third sector real problems today.
In a recent speech Matt Hancock, the Secretary of State for Digital, Culture, Media and Sport, said:
“I want to see civil society recover its confidence to speak into our public life. The greatest social and political changes in our history have come about because independent people formed associations to press for change. If that means respectful criticism of government, so be it. … The business of civil society is society, and within the limits of charity law, you have the right to campaign, to persuade the public, and to press for change in the systems which affect the life of this country”.
I agree with every word of that quote, but it is frustrating that Matt Hancock is saying that at the same time as the Government confirm that they are not intending to legislate for any of the reforms that the noble Lord, Lord Hodgson, put forward.
What is the reason given? We are told that it is pressure of time in Parliament. I have been a Member of this House for only eight years, but I can confidently say that this is one of the quieter periods for legislation that I have experienced in that time. I also think that if the Government brought a Bill forward to implement the noble Lord’s reforms, it would get a very positive reception here. It would certainly not get bogged down in lots of amendments, as the Government might fear; I think it would have a very easy passage in this House. It would actually be a very positive experience for us all to have the opportunity to get away from Brexit and talk about something else, so the Government might find that such a Bill was very welcome.
I very much endorse the noble Lord’s recommendations. I also think it is really important to remove staff costs from activity that counts towards the spending limit. As I said, political parties would be really badly affected if that applied to their national campaigns in the regulated period before a general election. It is also plainly unfair that a snap general election could cause a charity to be in breach of spending limits and be at risk of sanctions primarily because it did not have a crystal ball to anticipate the calling of a general election. It is fair to say that most of the Cabinet did not know a general election would be called last year—we heard reports of them being shocked before the Prime Minister came out to announce it to the world—so why should a poor little charity have any idea what is going to happen in terms of a general election?
I very much thank the noble and right reverend Lord, Lord Harries of Pentregarth, for bringing his Motion to the House today and enabling us to have this important debate.
Lord Young of Cookham (Con)
My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on his choice of subject and on the speech that he made in introducing it. I thank all noble Lords who have taken part; they have brought to the debate not just their experience of when the legislation went through but their experience in many voluntary sectors. For example, the noble Lord, Lord Judd, mentioned his experience at Nacro and Oxfam as well as some of the umbrella bodies that speak for the voluntary organisations. Many other noble Lords drew on their own experience of working in the voluntary sector. I cannot hold a candle to what some noble Lords have done in this field, although I chaired a housing association for some seven years before I became an MP.
I also thank the noble and right reverend Lord for his significant contribution to the development of third-party campaigning rules, including as chair of the Commission on Civil Society and Democratic Engagement, which closely monitored the changes to third-party campaigning and published a series of useful reports before and after the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 was passed.
We have heard much today about the important role that third-party organisations play in society. The Government recognise the invaluable contribution of third-party organisations and will continue to provide support and guidance to ensure that such organisations can meet their charitable aims. As a number of noble Lords rightly pointed out, the charitable aims include not just meeting the direct needs of the group that they seek to help but raising the profile and seeking to change the law. As the noble Lords, Lord Wallace and Lord Ramsbotham, and others have said, that is absolutely in line with their charitable objectives.
The Government published the Civil Society Strategy on 9 August, setting out how they will support charities and social enterprises. This includes plans to create a cross-government group to work with civil society and a renewal of the Government’s commitment to the compact principles. These are the principles that govern the relationship between the social sector and the Government. We are committed to embedding open policy-making across departments, giving civil society significant opportunities to achieve policy change, and are currently developing a commitment to this as part of the UK’s next national action plan for open government. We have also provided additional funding for third-party organisations. In 2018 the Government have doubled charitable donations through the UK’s Aid Match scheme, which pledges £1 for every £1 donated. Twenty-five charities across the UK will have their charitable appeals for 2017 and 2018 boosted, raising a total of £66 million.
When preparing for this debate, I read all four reports from the Commission on Civil Society and Democratic Engagement chaired by the noble and right reverend Lord, Lord Harries. I found them highly informative, providing a comprehensive insight into the key concerns around third-party campaigning. I also reread the significant contributions by my noble friend Lord Hodgson, which I will come to in a moment. I also read the contributions which both of them have made to our debate on the subject, including when the noble and right reverend Lord, Lord Harries, tabled amendments to the Act.
I thank my noble friend Lord Hodgson for his significant contribution to the third-party campaigning rules. His report has been referred to by many speakers, and I reread it last night. I understand that my noble friend has been in regular correspondence on third-party campaigning rules with Cabinet Office Ministers and will shortly be meeting the Minister for the Constitution to further discuss his report.
Third-party campaigners play an important part in the political process. Our democracy is strengthened by people campaigning for what they believe in, whether or not they are a candidate or political party. Voluntary organisations, charities, civil society and trade unions all play their part. I say that as someone who fought 10 general elections which were informed and enlivened by third-party campaigners. I recall, in particular, the campaign against the Newbury bypass, when I was Secretary of State for Transport and the candidate for North-West Hants. Digging a small bypass across my lawn was, I think, taking enthusiastic campaigning a little too far.
Much of the campaigning undertaken by such third parties is conveying their views about policies and issues. Under charity law, charities have the right to undertake campaigning and political activity where it supports their charitable aim, where trustees consider it to be an effective use of charitable resources, and provided that they do not engage in party politics. Electoral law does not change this. I listened with interest to the speech of my noble friend Lord Suri, but it is of course for the Charity Commission to act if there is a breach of charity law in the way that he implied.
The rules on third-party campaigning apply only to expenditure undertaken for electoral purposes. These rules exist to give the public more confidence in the way third parties interact with the political system. They ensure that campaigning is transparent and prevents any individual, company or organisation exerting undue influence on an election. Without these rules, our political system would be open to unknown groups spending unknown amounts of money on unknown activities to influence an election. I was interested to hear what the noble Lord, Lord Wallace, said: that it was not difficult to see where the line should be drawn. I am grateful for his broad support for the legislation which he helped to put on the statute book.
The Electoral Commission has a duty to provide advice and guidance to third-party campaigners to ensure that they understand the rules and are confident about campaigning. The commission has a series of guidance documents for third-party campaigners on its website. This includes information on registering as a third-party campaigners and guidance on reporting expenses to the commission.
The commission is currently working on a new guidance document with the Association of Chief Executives of Voluntary Organisations, the NCVO and Bond, the UK network for international development organisations. That guidance will cover areas of particular concern to smaller, issues-based campaigners. This includes the application of the purpose test to issue-based campaigns and the application of the third-party campaigner rules at an unscheduled UK parliamentary general election. The commission aims to publish this guidance early next year, and I can tell noble Lords who have taken part in this debate that I will ensure that all the contributions and suggestions they made during this debate are taken on board by the Electoral Commission.
Regulation of third-party campaigning at the constituency level has existed for a long time. The Representation of the People Act 1983 brought together in one place the legislation regulating third-party expenditure in parliamentary and local government election campaigns in individual constituencies.
The regulation of expenditure on campaigning activities by third parties on a national level has been a more recent occurrence. In 1998, the Committee on Standards in Public Life was tasked with reviewing the funding system and recommended reforms to political funding and spending. These recommendations were introduced by the Political Parties, Elections and Referendums Act 2000.
PPERA contains provisions on the regulated activity and registration of third-party campaigners, the spending rules for third-party campaigners, the rules on donations to third-party campaigners and the reporting of third-party campaign spending to the Electoral Commission. As the noble Lord, Lord Wallace said, that provided the framework for Part II of the 2014 Act, which was introduced in response to a 2013 Electoral Commission review of political parties and election finance law. I do not think that any noble Lord has suggested that Part II should be repealed. I was interested to hear what the noble Lord, Lord Tyler, said: that a lot of thought went into the construction of that Act, although they may not have got everything spot on.
The review suggested that the rules on third-party campaigning should be changed to reflect the scope of rules for political parties. It also called for a review of the implications of the campaign spending limits set by PPERA. These proposals become Part II of the 2014 Act.
The Bill’s passage through this House was paused for six weeks between Second Reading and Committee, to enable further consultation on the Bill. The Government made a number of amendments on Report—including, significantly, raising the threshold for registration, and therefore taking a number of smaller organisations outwith its scope, and requiring a review to examine the functioning of the whole system of regulating non-party campaigning. Subsequently, my noble friend Lord Hodgson was called upon to produce his review on third-party campaigning regulation, published, as we heard from the noble Lord, Lord Kennedy, in March 2016.
The 2014 Act brought greater transparency to when third parties campaign in an election. It required relevant expenditure on such campaigns to be recorded and disclosed more fully. A number of reports evaluated the effects of the 2014 Act on third-party campaigning. In September 2015, the Commission for Civil Society and Democratic Engagement published its report, Non-Party Campaigning Ahead of Elections. In his report, my noble friend reviewed the campaigning rules and found that it was,
“far from clear the extent to which it was the reality of the legislation’s provisions rather than the perception of what restrictions they imposed, which affected organisations’ behaviour”.
This makes sense. Nothing within the 2014 Act was intended to change the basic way in which third parties campaign and register with the Electoral Commission. In its briefing for this debate the Electoral Commission said:
“We continue to work with the charity and voluntary sectors and other campaigners to ensure that they understand the rules and are confident about campaigning. In particular we are working on addressing the misplaced perceptions about the rules that might cause a ‘chilling effect’ amongst campaigners”.
The Electoral Commission commented on the rules in one of its reports on the 2017 election. In November last year it published its report, Political Finance Regulation at the June 2017 UK General Election. The Electoral Commission said:
“For the most part, we are pleased to observe that parties and other campaigners intended to, and did, comply with election spending and funding rules”.
I shall try to deal with some of the points made during our debate. The rules for joint campaigning were raised. Working together with other organisations on common causes is a well-established feature for most civil society organisations, charities and trade unions, and it is important that when it happens at an election, the rules on third-party campaigning capture this activity.
The rules on joint campaigning prevent undue influence by ensuring that spending limits are respected and that they cannot be evaded by a joint campaign falsely claiming to be separate campaigns. My noble friend Lord Hodgson spoke about those who were not angels and what he called outliers, who are all too ready to abuse the spending rules. Joint campaigning rules are important to ensure transparency about which groups are campaigning together on a particular issue and what they are collectively expending.
The issue of snap elections was raised. Whether we will have more snap elections after the result of the most recent one, I am not sure. The regulated periods for elections are clearly set out in PPERA. Also, with the passing of the Fixed-term Parliaments Act 2011, the start date of regulated periods in advance of scheduled general elections should be known with greater certainty than was the case before, so unexpected general elections—it says here—should be less frequent.
I was also asked whether the regulatory period should be changed from 12 months to four months. The regulated period for third parties is the same as for political parties, and having any difference between the two is likely to increase the complexity of election law. If one did that, one would need an amendment to require an anti-avoidance provision to prevent third parties being used as fronts for a political party or campaigner during any period where third-party campaigners were not regulated but political parties were.
The noble Lords, Lord Wallace and Lord Kennedy, raised the issue of transparency of income for campaigning charities. Your Lordships’ Select Committee on Charities published a report in March 2017 called, Stronger Charities for a Stronger Society. It stated:
“We do not believe that significant additional regulation of the sector through increased mandatory reporting requirements would be desirable, as this would be a substantial bureaucratic burden on smaller charities”.
Of course, the Charity Commission has done much in recent years to improve the information publicly available about charities and is now consulting on changes to its annual return, which would further increase charities’ transparency.
In a nutshell, the 2014 Act did not target charities and has never prevented charities or other organisations from campaigning in line with the law. In the 2017 general election, 68 charities registered as third parties with the Electoral Commission, which was an increase from 2005, when 25 charities registered. The Act, piloted so capably by the noble Lord, Lord Wallace, is about giving the public more confidence in the way third parties interact with the political system. It makes the political system more accountable and prevents opaque and unaccountable groups spending large sums of money attempting to influence the political system.
My noble friend Lord Hodgson suggested a number of changes to the 2014 Act. I am happy to say that we are making progress with one of them: the suggestion that imprints should be required for electronic material as well as on printed material for third parties. We recognise the growing number of campaigners using social media to convey their message to the public—a point well made by the noble Lord, Lord Tyler. On 29 July this year, the Cabinet Office launched an open consultation, Protecting the Debate: Intimidation, Influence, and Information, which seeks views on proposed changes to electoral law, including the inclusion of imprints on digital campaign materials. The consultation will close at midnight on 22 October. We have doubts about implementing my noble friend’s package of recommendations and we have made it clear—I understand my noble friend’s disappointment—that we will not legislate on this. During our debate, a number of noble Lords have suggested that we need to further revisit the legislation in the light of the experience in recent elections. My noble friend was keen that his recommendations be taken forward as a single package.
To take one of those recommendations, a principal one, perhaps—to amend the definition of “regulated activity”—the Government agree with the Electoral Commission that no amendment to this definition is required. The commission believes that the current definition works well. It covers spending which can reasonably be regarded as intended to promote or procure electoral success. I say to my noble friend that I have made detailed inquiries about this and I am advised—and I am bound to say that I agree—that moving to a test of actual intention would be difficult to regulate and enforce. He made the point that this phrase occurs within the Representation of the People Act 1983 and asked why it could not simply be moved across. The intention test in that Act is appropriate for candidate spending and referendum campaigning since, in those cases, it is obvious that the candidate or campaigner has that intention. It is not suitable, however, in the case of third-party campaigners, who have a different background. Their campaigning may be issue-based and one cannot simply transpose that provision across.
A number of general points were made by the noble Lords, Lord Tyler and Lord Kennedy, about broader confidence in the electoral system. I say to both of them and to the House that the Government will be working towards a comprehensive programme of reform over the next few months and years to ensure that our electoral system is fit for purpose and enhances confidence in our democratic institutions. Finally, I assure noble Lords that we are committed to ensuring that third-party campaigners can continue to play a meaningful role in the democratic process. We need to strike a balance between, on one hand, the rights of people and organisations to campaign and, on the other, maintaining the integrity of the electoral process by having transparency of expenditure. We believe that the current legislation does this, but we will continue to work with the Electoral Commission, voluntary organisations and charities to ensure that the legislation is fully understood and clarified, where necessary, so that the crucial balance that I referred to is maintained.
Lord Harries of Pentregarth
My Lords, I thank all noble Lords who have spoken. In particular, I repeat my thanks to the noble Lord, Lord Hodgson, for his excellent report and I also thank the Minister, who has obviously put a lot of careful reading, planning and thought into his contribution to the House today. This debate has brought out the importance of bringing this legislation back and looking at it again as soon as government business allows. There is not only the report of the noble Lord, Lord Hodgson, but contributions such as that made by the noble Lord, Lord Wallace of Saltaire. There may very well be areas that are not properly covered and which need tightening up. This has accentuated the importance of bringing the legislation back.
It has been suggested in some quarters that the third-party campaigners suffer from misconceptions or exaggeration. Perhaps this is true in some cases, but it is a very good principle to listen to the people most fully engaged in work on the ground. There is no doubt that they feel very strongly—as revealed in the reports of the commission that I chaired, and by the McKechnie Foundation—that the legislation works in a disproportionate way upon them. What bears this out is the recommendation of the noble Lord, Lord Hodgson, himself. Nobody could be more objective in his approach. He has a very well-balanced report. It is entitled Getting the Balance Right but his main thrust is that, at the moment, the balance is not right. I very much hope that the Government will think again at some point and look at Part 2 of the lobbying Act as soon as Brexit allows, and certainly before the next general election.
Anti-Semitism
(5 years, 7 months ago)
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Lord Popat
To ask Her Majesty’s Government what actions they are taking to reassure the Jewish community over the impact of anti-Semitism in the United Kingdom.
Baroness Goldie (Con)
My Lords, before we begin this debate I will gently remind all noble Lords who have signed up to speak that the time limit is two minutes. If everyone sticks to that, we shall reach all the speakers on the list. So when the clock shows “2”, time is up.
The Government are of course aware of the importance of the issues that this debate will raise. My noble friend the Chief Whip, with the full support of the Opposition Chief Whip, the noble Lord, Lord McAvoy, has agreed to find time for a further debate to be held in government time later this year. The Government Whips’ Office will write to all those speaking today to confirm the date.
Lord Popat (Con)
My Lords, I start with a question: why me? Why have I taken it upon myself to bring this debate to your Lordships’ House? After all, I am not Jewish: why should anti-Semitism concern me? To that I answer: anti-Semitism concerns us all. The notion that it is solely a Jewish problem is as dangerous as it is wrong.
History is full of powerful words and actions, but silence can be just as formidable. When we are silent in the face of intolerance, we encourage prejudice. When we are silent in the face of falsehoods, we allow lies to become truth. When we are silent in the face of hatred, then hate will spread. I recall Pastor Martin Niemöller’s famous words:
“First they came for the socialists, and I did not speak out—
Because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me”.
What we must understand here is that hate knows no bounds. We saw that in the horrors of the Holocaust, and we see it now with extremist terrorism and the rise of both the far right and the ultra-left. Anti-Semitism is a threat that goes beyond Jewish communities and party politics.
For me, this is personal. As a member of the British Hindu community, I understand the pain that prejudice brings. My family and I came to this country from Uganda more than 45 years ago to escape the brutal dictator Idi Amin. We were welcomed by this country, and the Jewish community was at the forefront in helping us to settle in the part of north London where I live today. For us, the Jews were a positive example of what immigrants can achieve by integrating fully into society. In them, we saw people who not only survived horrific persecution but thrived despite it. Our two communities continue to live side by side and we have a number of commonalities and shared values. We both attach importance to hard work, education, enterprise, family and faith. We also share an unshakable loyalty to the United Kingdom, this great country.
If you want an idea of how much Jewish people value their Britishness, I suggest you visit a synagogue, just as the famous diarist Samuel Pepys did in 1663. You will observe, as he did and as I have done on many occasions, that, during every Sabbath service, the congregation reads out a prayer for the welfare of the Royal Family and the Prime Minister. What greater expression of patriotism and love of this country? What greater testament to the UK’s values of tolerance and compassion from people who have suffered so much throughout history?
This brings me to an important point. Jews have long felt safe in this country. Regardless of what was happening elsewhere in the world, here in the UK—like us—they felt at home. During the Second World War it was this country that took in Jewish refugees and offered them a safe haven. In the last couple of years, with anti-Semitism on the rise in France, Hungary and other parts of Europe, many Jews expressed relief that they were living here and not elsewhere. Even a growth in recorded anti-Semitic incidents in the UK did not dampen the Jewish community’s feeling that they were fundamentally protected by UK values, laws and institutions.
So when my Jewish friends say that they fear for their children’s safety in schools, synagogues and universities; when they are afraid of openly identifying as Jewish, and when they start to question their future in this country, the rest of us have a duty first to listen and then to ask: “How has it come to this? Why has it come to this?” And, most importantly, “What are we going to do about it?”
One of the striking features of anti-Semitism is its capacity to reinvent itself time and again. The former Chief Rabbi, the noble Lord, Lord Sacks, is here and we look forward to listening to him later. He recently described it as a “virus”. Unlike the anti-Semitism of the past, which was rooted in religious and racial hatred of Jews, modern anti-Semitism is expressed through the anti-Israel and anti-Zionist movements. How many times have we heard that the problem today is not with Jews but with Zionists? Yet the connection between anti-Zionism and anti-Semitism is not always understood.
Zionism is the proposition that the Jews have a right to their own state in their ancient homeland. Anti-Zionism advocates the opposite. Present-day anti-Zionists also believe that the Jewish state is not only illegitimate but should be dismantled. They argue that they are simply standing up to colonial oppression and for human rights and that it has nothing to do with anti-Semitism. But would they also, on anti-colonial and humanitarian grounds, question the legitimacy of the USA, Pakistan, Bangladesh, Australia and most modern states in the Middle East—countries created through colonial intervention? Would they question the legality of practically the whole of Europe, the borders of which were shaped, destroyed and redrawn through centuries of war? There are many Hindu, Christian and Muslim countries across the world, but just one Jewish state. Why is Israel—this tiny strip of land the size of Wales—singled out for criticism with so much intensity and loathing?
It is important to emphasise that criticism of the Israeli Government is not anti-Semitic. This is healthy democracy. I am a Zionist and, like many of the most passionate Zionists I know, I am also a critic of Israeli policies. But here is the crucial difference. Once you begin to challenge a country’s right to exist; once you take to marching in the streets and on university campuses, calling for boycotts of anything and everything to do with a country; once a whole country becomes the subject of your obsessive hatred; then you have to ask yourself honestly, what is your motivation? Is it purely a moral reaction to the unjust policies of a Government, or are you driven by a deeper hostility? Is it a coincidence that every time there is a flare-up between Israel and the Palestinians, there is a spike in anti-Semitic incidents in the UK?
Look up Israel on social media and you will be shocked to see the level of hate directed against Jews. There are phrases such as,
“Zionists controlling the media, financial institutions and foreign policy”,
It is not long before you find yourself in Holocaust-denial or blood-libel territory. Both of these are integral to myths of Jewish power and influence. They are part and parcel of conspiracy theories that blame Jews for all that is wrong in the world. These age-old anti-Semitic tropes have found a new audience in both the far right and far left of the political spectrum. Whether it comes from the left or the right, make no mistake: today the word “Zionists” is code for Jews. Jews have long suspected it. Anti-Zionists have always known it. Recent events have exposed it.
So what can be done? First, it is essential to uphold the great effort which took place after the Second World War to ensure, through our Government and the rule of law, that anti-Semitism in all its forms will never be tolerated. Secondly, the Government must not allow the passage of time to soften our resolve against anti-Semitism. There is a generation of young people who did not grow up with the same awareness that many of us have of the Holocaust, but they are politicised in other ways. They must understand that hatred of Jews—hatred of any community—is a danger to us all.
As many noble Lords know, I am not a career politician or an activist. When I joined your Lordships’ House eight years ago, I could never have imagined that I would be standing before you in 2018—in living memory of the Holocaust—speaking about the hatred of Jews in this great country. But it is happening now and I will not go down as one of the good men in history who stood by and did nothing. I refuse to bear witness to hatred as it eats away at our social and moral fabric. I will stand up for my Jewish friends who love this country; who have given so much to this country and who ask for nothing more than to feel protected. All of us—Hindus, Christians, Jews, Muslims, Sikhs and those of no faith—must stand up and speak out for the oppressed, whoever they are and wherever they are. As Pastor Niemöller warned, if we do not look out for each other, no one will look out for us. I stand here today to say, loud and clear, “Enough is enough”.
Lord Mendelsohn (Lab)
My Lords, I thank the noble Lord, Lord Popat, for introducing this debate, for his outstanding speech and for his solidarity. As a Jewish Member of this House, I am proud to describe him as my noble friend.
How did things get so far that recent polls have shown that nearly 40% of Jews in Britain feel so uncomfortable that they are thinking of leaving the country? Close to 90% are convinced that the leader of a main political party is an anti-Semite, as does a staggering 39% of the general public. How is it that a part of the UK no longer feels that a party which has always stood up for justice, liberty and progress is the one to which they can entrust their lives and those of their children? They feel this so intensely that many are considering emigration.
Since the Second World War, the Jewish community has been alert to all manifestations of anti-Semitism and, more latterly, to the particular threat of terrorism. I have always felt that the acts of solidarity and the breadth of the coalition against such manifestations of anti-Semitism have demonstrated the very best of Britain. In the 1980s, I felt what others had felt before, not just the conditionality of the far left—not of the Labour Party but the far left—but its movement to embrace aspects of anti-Semitism. I felt it on campus, with the banning of Jewish societies and even with the actions, in 1994, of some student activists who bombed a Jewish community centre in north London—an act which singlehandedly transformed the view of the security of this community.
In 1984, an anti-Zionist Jew, Steve Cohen, wrote a book calling out the far left for its anti-Semitism, called That’s Funny, You Don’t Look Anti-Semitic. I commend it to everyone. It is as relevant today as it was then. Far too few of the non-Labour Party left were prepared to accept it then. But it illustrates a direct line, the politics of which have entered the Labour Party en masse and are now causing this current crisis. That crisis has never been gripped since the start of Jeremy Corbyn’s leadership and it has, over the summer, placed his position—his record, his views and his conduct—at the heart of it. It astounds me that it is a revelation no longer worthy of questioning that I too believe that the leader of my party, Jeremy Corbyn, has been a perpetrator of anti-Semitism.
How to solve this? It is hard to be positive. The leader of my party needs to reflect carefully on this. The deniers, those who seek to try and throw Israel and the Palestinians up as a smokescreen, who whip up unrelenting hostility and target those who show the noblest instincts of fighting for their legitimate rights or for acts of solidarity—may they be shamed by their indifference and understand that they are no more than perpetrators themselves.
This is not an organisational problem but a political one, and the approach of the party since the shameful Chakrabarti report and up to today will not be enough. Do not blame the victim. It hampers our party because it is a problem of our party.
The time up to the Labour Party conference is time for reflection and I hope to hear something meaningful and transformational, not just about anti-Semitism but about the place of everyone in society. Without that there will be an increasing view that the way that the Jewish community—my community—is treated is the canary in the coalmine for others.
Lord Palmer of Childs Hill (LD)
My thanks also go to the noble Lord, Lord Popat.
Anti-Semitism is not new but recently has achieved publicity beyond the Jewish media. On Monday and Tuesday I attended my synagogue to celebrate Jewish New Year, Rosh Hashanah. There was a strong security regime in place, consisting of trained members of the community plus professionals from CST—the Community Security Trust. All wore protective vests. The synagogue has a gated security fence. Security is not paranoia but is part of providing security for Jewish communal life, be it at synagogue or school, in old age homes or in other buildings. There is a great fear of anti-Semitic attacks. I declare that I am on the Advisory Board of CST, which is inspirationally chaired by Gerald Ronson. I will give a couple of typical examples. Vandals targeted Urmston Jewish Cemetery in Manchester, shattering 30 headstones. Anti-Semitic graffiti was daubed on the Etz Chaim Synagogue in Leeds.
Can the Minister confirm that the Government will continue to contribute to funding this vital CST service, not just on an annual basis, and that banners at marches and demonstrations must be controlled to prohibit words of hate, such as the dreadful banner saying “Hitler was Right”? Can he confirm that the Government must prosecute with the full force of the law hate crimes against the Jewish community wherever it occurs, be it in the UK or indeed abroad: the desecration of cemeteries, graffiti on synagogues or other buildings, verbal abuse and denial of the Holocaust?
Anti-Semites must not be able to hide their hatred of Jews. The vile outpourings of anti-Semites on Facebook and Twitter and on other social media must be stopped, and if the service providers do not stop them they should be made to do so by statutory means. Service providers should suffer significant fines if they allow anti-Semitic vitriol to go unchecked. To allow expressions of anti-Semitism on social media, on our streets or in any other public place must be made legally unacceptable.
Lord Sacks (CB)
My Lords, I am so grateful to the noble Lord, Lord Popat, for initiating this debate, and I want to explain why. The greatest danger any civilisation faces is when it suffers collective amnesia. We forget how small beginnings lead to truly terrible endings. A thousand years of Jewish history in Europe added certain words to the human vocabulary: forced conversion, inquisition, expulsion, ghetto, pogrom, Holocaust. They happened because hate went unchecked. No one said stop.
It pains me to speak about anti-Semitism, the world’s oldest hatred, but I cannot keep silent. One of the enduring facts of history is that most anti-Semites do not think of themselves as anti-Semites. “We don’t hate Jews”, they said in the Middle Ages, “just their religion”. “We don’t hate Jews”, they said in the 19th century, “just their race”. “We don’t hate Jews”, they say now, “just their nation state”.
Anti-Semitism is the hardest of all hatreds to defeat because, like a virus, it mutates, but one thing stays the same. Jews, whether as a religion or a race or as the State of Israel, are made the scapegoat for problems for which all sides are responsible. That is how the road to tragedy begins.
Anti-Semitism, or any hate, becomes dangerous when three things happen. First, when it moves from the fringes of politics to a mainstream party and its leadership. Secondly, when the party sees that its popularity with the general public is not harmed thereby. Thirdly, when those who stand up and protest are vilified and abused for doing so. All three factors exist in Britain now. I never thought I would see this in my lifetime. That is why I cannot stay silent. For it is not only Jews who are at risk—so too is our humanity.
Lord Hunt of Wirral (Con)
My Lords, for some reason, anti-Semitism is the one intolerance, the one form of bigotry, that now dares, once again, to speak its name. I thank my noble friend for reminding us of the need for eternal vigilance.
As a founder, supporter, trustee and now vice-president of the Holocaust Educational Trust I am always eager to raise awareness of our vital work here in the UK, including our celebrated outreach programme, which sends Holocaust survivors to schools, colleges, universities and organisations throughout the year. It is often a life-changing experience to hear first hand about where hatred can lead, and about the dangers of allowing incendiary language to go unchallenged—and I speak as an avowed supporter of free expression. We have also, so far, taken more than 40,000 students and teachers to the former concentration camp at Auschwitz-Birkenau. We also boast of an impressive network of over 27,000 ambassadors, who help to take our message to their own generation and the next, and we educate over 1,500 teachers every year on their teacher-training programmes. As the Holocaust inevitably begins to fade from first-hand memory, and as anti-Semitism suddenly rears its profoundly ugly head once again, the trust is increasingly involved in the broader cause of combating anti-Semitism. That is a regrettable necessity.
I join all colleagues in this House in saying that the message must go out from this place today that there is no place for anti-Semitism here—now, tomorrow, or ever again.
Lord Alton of Liverpool (CB)
My Lords, in a recent interview, my noble friend Lord Sacks said that,
“the hate that begins with Jews never ends with Jews”.
Anti-Semitism is a virus that singles out Jews but which then spreads its hateful contagion to other minorities and to vulnerable groups, who are all too easily scapegoated. The noble Lord, Lord Popat, reminded us how Pastor Martin Niemöller, having failed to speak out against the rise of Nazism, described how a democratic nation with, nominally, millions of good citizens, succumbed to the virus of anti-Semitism, paving the way for the Holocaust. One who of course did speak out was Dietrich Bonhoeffer, who was executed by the Nazis. He famously said:
“Not to speak is to speak. Not to act is to act”.
Never let that be said of any of us.
There is an urgent need to confront anti-Semitism and to ensure that vibrant and inspiring educational learning hubs are created that challenge the rising generation to see the link between the Holocaust and contemporary forms of genocide, and to see the links between anti-Semitism and racism. As recent events have underlined, we must urgently redouble our efforts in combating this hateful virus that, yes, invariably begins with the Jews, but never ends with them.
The Lord Bishop of Birmingham
My Lords, as we have heard, there is a need for constant vigilance to ensure that anti-Semitism plays no part in the life of our country. To continue its determination in this aim, the College of Bishops of the Church of England, building on 75 years of friendship marked by the founding of the Council of Christians and Jews, has adopted and adhered to the International Holocaust Remembrance Alliance’s working definition of anti-Semitism, including all examples without qualification or exception. This is in the context of our conviction, which I trust will be affirmed today by Her Majesty’s Government, that anyone involved in political, spiritual or national life should reject all language and activity that leads to prejudice, stigma or hatred towards people on the grounds of their religion, culture, origins, identity or beliefs. This includes issues related to those we are discussing today, such as Islamophobia.
Continuous, intentional effort is required in achieving and maintaining these standards, recognising the failures of negative stereotyping in the past, which the noble Lord, Lord Sacks, mentioned in his remarks. A further report on the theology of Christian-Jewish relations is in preparation, led by the Bishop of Lichfield. Recent public conversation between the most reverend Primate the Archbishop of Canterbury and the Chief Rabbi is evidence of mutual commitment to justice, safety and friendship. In practice, this means not talking about people but talking with them. As we have heard, it does not preclude constructive criticism of the policies of Israel, but demands appreciation of and participation in solving intractable issues together.
In my own context of Birmingham, with rabbis and imams of many different traditions, helped by some programmes supported by the Government—which, I hope, will continue—we are learning to live together across all faiths and none as good neighbours, disagreeing well and using the highest standards of language and attitude for the common good of all. I hope this year, and in years to come, we can say, “Happy and peaceful Rosh Hashanah”.
Lord Sugar (CB)
My Lords, I thank the noble Lord, Lord Popat, for bringing the debate to the House but my understanding is that the current Government have a clear policy against any form of racism. The real question should be put to the leader of the Opposition, Jeremy Corbyn. The Labour leader allowed the issue of alleged anti-Semitism in the Labour Party to ramble on for months.
What kind of leader is he not to take his party by the scruff of the neck, make it see sense and kill the matter off once and for all? He should terminate the obsession of the hard left with Israel and Palestine and focus on far more pressing matters, such as Brexit and jobs. Labour eventually adopted the IHRA but, from what I hear, Mr Corbyn tried to add an 11th-hour rider, which resulted in hours of debate among his own people; people such as Peter Willsman, who once accused Jewish “Trump fanatics” of fabricating allegations of anti-Semitism. What a complete and utter clown; everyone knows no Jew in the UK in their right mind would be a Trump fanatic.
Mr Corbyn allowed matters to ramble on because, frankly, he does not give two hoots about what Jews in the UK think. He simply does not care. Of some 250,000 Jews in the UK, let us say 220,000 may be eligible to vote. If it comes to an election, 220,000 votes are a drop in the ocean. We mean nothing to him. Perhaps Mr Corbyn has taken a leaf out of the aforementioned Mr Trump’s book in alluding to support for issues which he believes that a lot of the voting population are also thinking about.
We are all familiar with the expression, “There is no smoke without fire”. My request to the UK Government is to extinguish the flame, and use all efforts to ensure that Jeremy Corbyn does not become the leader of our country. That would be the day Britain died.
Lord Pickles (Con)
My Lords, I congratulate the noble Lord, Lord Popat, on this timely debate. I am the UK delegation leader for the International Holocaust Remembrance Alliance. I was part of the team that persuaded the IHRA to accept this definition. It was necessary because anti-Semitism in all its forms is growing right across Europe; it has been accelerated by the growth of ultra-nationalism and its marriage to social media. It is also necessary because of the way that anti-Semitism has changed and adapted. In particular, it now hides behind, for example, criticism of Israel or support for Palestinian rights. It is less obviously hidden by attacks on Zionism. The repackaging of these old anti-Semitic tropes is perhaps the most horrible aspect of this. Even the blood libel has been repackaged and reworked for a modern audience. It is all designed to make Jewish citizens feel uncomfortable. We might suggest that they lack irony; that they are not capable of understanding the culture of their own country; that they somehow have an alliance to another country outside the United Kingdom.
We have seen in Europe what happens when the Jewish community is taken out of a country and seeks to migrate elsewhere: the very heart of that country is removed. I certainly believe that the Jewish identity is a fundamental part of the British identity. Without a vibrant Jewish community, this country would be a lesser place. As my noble friend said: enough is enough. Let us stand by our Jewish friends.
Baroness Deech (CB)
My Lords, in admitting that anti-Semitism today is characterised largely by hatred of Israel, the calls for a one-state solution are straightforwardly calls for the persecution, if not the destruction, of six million Jews living in Israel. History shows that when Jews are in a minority and do not have their own state—especially when they are in a minority in a Muslim state—they are subjected to persecution, expropriation and, ultimately, expulsion and killing, as happened across the Middle East in the 1940s and earlier. The disproportionate number of Israel questions in this House is not healthy, nor is it effective in any way in the pursuit of peace. It beggars belief that anyone should go on the radio to say that the noble Lord, Lord Sacks, does not know what he is talking about when he addresses racism.
The Government should be commended for setting aside £50 million for a Holocaust Memorial and Education Centre but I am concerned that this might go wrong. There are already a number of Holocaust exhibitions and memorials, for example at the Imperial War Museum, in Newark and in Hyde Park. Sadly, the proposed siting in Victoria Tower Gardens is arousing opposition, in part, but not wholly, justified by the small location. Controversy is exactly what one does not want to surround a venture such as this, which needs to start with acceptance and reverence. The winning design must be obviously Jewish; it has to have something that strikes the passer-by as pertaining to this important issue. The exhibition that will go with it must include the origins of and the need for Israel. Only by studying anti-Semitism over the centuries, and its continuation today, can one understand the need to support and celebrate the establishment of Israel. Children need to learn that at school in Holocaust education. Had Israel existed in time, there would have been no genocide.
Lord Haskel (Lab)
My Lords, I had an opportunity to discuss this Motion with my rabbi, and we both agreed that the law is pretty robust. So where does all this anti-Semitism come from? It comes from long-established prejudices and the modern polarisation of identity.
Yes, there are religious prejudices, as the noble Lord, Lord Sacks, told us, but people still believe there is a vast Jewish conspiracy against working people and the establishment. Yes, I too find it difficult to believe, but occasional incidents remind me from time to time that it still exists.
The identity prejudice is due to mixed loyalties, because some people look upon Israel as a sanctuary from persecution. The harnessing of emotion, prejudice and identity for political purposes, particularly by the extreme left and the extreme right, has a long history, but not only as regards anti-Semitism, as the noble Lord, Lord Popat, told us. It has become more so as our politics have become more polarised.
In these circumstances, the Government’s responsibility is not to pass laws but to create a positive atmosphere in which citizens will feel confident enough not to need to pick on minorities, to go to extremes or to feel that their prejudices have been confirmed. The cross-government working group on tackling anti-Semitism helps to create this atmosphere, but they must be more robust in condemning prejudice and anti-Semitism.
We also need to review the all-party inquiry into anti-Semitism. Many of its recommendations have been implemented, but some have not. There are also recommendations from the Antisemitism Policy Trust, particularly relating to cyberhate, and these are important. The issue of anti-Semitism on campuses has been frequently raised in your Lordships’ House. The Community Security Trust does excellent work, as the noble Lord, Lord Palmer, told us, but this needs to be continually acknowledged and supported by the Home Office.
However, we can all play our part in creating a more positive atmosphere and environment by speaking up against anti-Semitism and prejudice whenever we come across it.
Lord Harries of Pentregarth (CB)
I was privileged to chair the 1994 Runnymede Commission on Antisemitism. The title of our report was a phrase from Conor Cruise O’Brien—A Very Light Sleeper—and that, I am afraid, is all too apparent at the moment. The light sleeper has started to stir and wake up, as we have heard very powerfully in this debate, for which I too am grateful to the noble Lord, Lord Popat.
For nine years, I chaired the Council of Christians and Jews, which encourages Jews and Christians to work together against anti-Semitism. We found of course that the subject that we had to discuss with sensitivity and care was always the State of Israel. I have always found some words of an American scholar helpful. He studied all the statements of Christian churches since World War II and summarised the minimum consensus as follows:
“Because the state of Israel is in part the product of the ancient and living hope of the Jewish people and is of deep concern to almost all Jews, disregard for its safety and welfare is incompatible with concern for the Jewish people”.
I repeat: disregard for the safety and welfare of Israel is incompatible with concern for the Jewish people. But of course that concern for its safety may very well go with a critique of the policies of a particular Israeli Government, as we have seen quite dramatically recently in the statement of Dame Margaret Hodge.
There are some other words that I have always found extremely salutary, and it may be that other of your Lordships will also find them helpful:
“Pray not for Arab or Jew,
for Palestinian or Israeli,
but pray rather for ourselves,
that we might not
divide them in our prayers
but keep them both together
in our hearts”.
Baroness Altmann (Con)
My Lords, as I have grown up in this wonderful country, I have never understood how the Holocaust could have happened. My family fled Nazi persecution and I would not be here today had they not done so. I am grateful to this country for having welcomed them. I never understood how European citizens could turn on friends to the extent of being willing to murder them as aliens. This was beyond my comprehension, until the last couple of years. Before that, I had blindly believed that it could not happen again and certainly not here in the UK.
Of course there will always be anti-Semitism and hatred on the fringes of society—minorities filled with hate towards some “other” or someone “different”, perhaps because of their skin colour, their sexual orientation or whatever—but western society seemed to have made huge strides since World War II in eradicating and outlawing such discrimination. For the entire post-war period, Britain has been increasingly an accepting society—until now. All Governments in power in my living memory have been tolerant and welcoming of Jews. I have never felt any threat to my chosen religious beliefs, until now.
I say from the heart that this Government have done much to support the Jewish community. This party on these Benches has shown me absolute tolerance, respect and welcome as a religious Jew. Yes, more is needed to curtail the hatred spread by social media and the hatred still found on university campuses, but the hatred that seems to have spread through political discourse much more recently is truly frightening. I urge noble Lords on all sides of this House to take note that one of our mainstream political parties is led by an anti-Semite.
I thank the noble Lord, Lord Popat, for calling this debate and for speaking up. As Edmund Burke said, all it takes for evil to triumph is for good men to be silent.
Baroness Hayman (CB)
My Lords, nearly 50 years ago, I was sitting as the most junior member around the board table of a children’s charity. Discussing a problem that had arisen, a more senior member remarked that we should have known better than to employ “a scheming little Jewess”. Pretty shocked, I said that as a Jewish woman I found that remark unacceptable. There was an embarrassed silence and eventually the meeting continued. However, the point of this story is what happened next. At the end of the meeting, the chairman came up to me not to express support but to ask me to apologise to the woman who had spoken. She was an important donor to the charity. He said that I had offended her and that my remarks could harm the organisation. It was my comment, not hers, that was seen as the problem.
I fear that there are parallels half a century later. Those who call out anti-Semitism are themselves accused at best of hypersensitivity, at worst of disloyalty. A dismal absence of principled leadership has unleashed a second wave of abuse against those who challenge anti-Semitism, and Labour MPs who tell it as it is are being punished in their constituencies. As others have said, it is time for the leadership not only to speak out but to act.
However, standing up to racism of whatever variety requires more than action from the top, necessary though that is; it requires individual action and responsibility from each of us, whether the insult is directed against us personally or not. Returning to my story, I would argue that the blame lay not simply with the chairman, pusillanimous though he was, but with every other member of the committee, who said or did nothing. That is why I want to salute the noble Lord, Lord Popat, and every other non-Jewish member of this House who has stood out against anti-Semitism today.
Baroness Goldie
My Lords, perhaps I may observe that we are slightly slipping with time. It is important that other contributors have a fair shot and that the Minister has proper time to address the points raised. I invite the co-operation of the remaining speakers to stop when the clock shows “2:00”.
Lord McColl of Dulwich (Con)
I am grateful to the noble Lord, Lord Popat, for the opportunity to join others in reassuring the Jewish community that they are greatly valued for all that they are and all that they represent. I have many Jewish friends, one of whom has been my adviser for years. I greatly admire their hard work, their sense of humour and their loyalty to this country, and the many contributions they have made to science, music and the arts, as well as their emphasis on the importance of the family.
The Wolfson Foundation illustrates the impact that the Jewish community has had on the United Kingdom. The charity was set up in 1955 by Isaac Wolfson. He came from a Jewish refugee family fleeing the pogroms of eastern Europe in the 1890s. His is a classic rag to riches tale: from the Gorbals of Glasgow to creating vast wealth through retail. His motivation in the 1950s was simple: he wanted to give back to the society that had helped him and his family.
Today, the Wolfson Foundation is worth nearly £1 billion, having given away nearly £2 billion in real terms in the intervening years. The foundation continued to flourish under Lord Wolfson, Isaac’s son, and does so now under Lord Wolfson’s daughter, Dame Janet de Botton, who has proved to be an outstanding and very generous chairman. I am privileged to serve as a trustee of the foundation. The foundation gives away £35 million every year. There is no community in the United Kingdom that has not been affected by the foundation’s giving—to hospices, health centres, churches, and so on. All that is due to one Jewish family who found refuge in Scotland. As Isaac Wolfson used to say, “Not bad for a boy from the Gorbals”.
Lord Parekh (Lab)
My Lords, during the past few weeks members of the Jewish community, including MPs and Peers, have been subjected on social media to the most abhorrent and abominable abuse. I condemn this abuse and express my sympathy for the Jewish community. That community’s contribution to all areas of British life has been greater than that of any other and its members have been at the forefront of the struggle against racism. I cannot think of any piece of race legislation passed during the past 40 years that has not been the creation of a member of the Jewish community. Like the noble Baroness who spoke a little earlier, I find it very puzzling that the Holocaust should have happened at all, in Europe, in a country which was highly civilised, only 80 years ago. As somebody who grew up in India, I find it very bewildering and puzzling, but there it is.
I would like to provide some balance, given that the Labour Party Benches are a little under-populated—partly as if there is a sense of guilt. But there is none and I suggest that the Labour leadership’s handling of the whole controversy could have been much more expeditious, much more public and much fairer. There is no reason why the leader could not have written an article or given a major speech, in which he could have explained why he found the definition unacceptable. What prevented him from saying that? In the absence of that, there were a few remarks here and there, and then a complete vacuum. I wish, therefore, that Labour had been more active, not just in making soundbites but in explaining more fully what the definition would not allow him to say. Nobody is going to say that that definition, or any definition, is perfect—no definition is. In this particular case, in fact, the Home Affairs Committee report on anti-Semitism says that the definition needs to be changed and has made two amendments to it. The Labour leader was right to suggest that the definition should be changed, although not necessarily the amendment that he was proposing. However, not to have explained why was certainly unacceptable.
What worries me most, as a Labour Party supporter, is simply this: in the course of this controversy there has been an unfortunate polarisation between the Jewish community on the one hand and the Labour Party, or the left, on the other. That is most unfortunate. It is unfortunate, first, for the Jewish community, because one day Labour will come to power, as I am sure it will; and, secondly, for those in the Labour Party who have close friends in the Jewish community and would not dream of anything happening to that community. I therefore suggest that the time has come for both sides to stop polarising the issue and to develop friendship and trust in a spirit of mutual understanding and forgiveness. In the heat of the moment, both sides may have said things that they regret, and therefore the time has come for reconciliation.
Lord Russell of Liverpool (CB)
My Lords, I, too, thank the noble Lord, Lord Popat, for this timely discussion. I rise to express my personal outrage at recent events and my commitment to fighting the woeful and wilful ignorance that is anti-Semitism, which I fear may never die but must be called out for what it is, wherever and whenever it occurs. I rise also to express my quiet pride in two of my forebears, both of whom were Members of your Lordships’ House.
My great-grandfather, Stanley Baldwin, appalled by the Kristallnacht, launched the Lord Baldwin Fund for Refugees in December 1938. In eight months it raised £522,000—slightly over £34 million in current money. It is rightly regarded as the most successful UK public appeal of the interwar years and it resulted in the arrival of many of the Kindertransport children—one or two of whom are also Members of your Lordships’ House. My grandfather and namesake was the senior officer in the Judge Advocate-General’s office responsible for overseeing all war crimes trials in British-occupied Germany between 1946 and 1950. What he experienced led him to write the first factual description of the Holocaust, in The Scourge of the Swastika—which is still in print, I am ashamed to say, after 64 years.
I have just reread Martin Gilbert’s searing and definitive book, The Holocaust. It haunts me, and I defy others not to be similarly affected. It is for us to continue to call out anti-Semitism, wherever it festers, in all its malignity, malevolence and mendacity.
Lord Sterling of Plaistow (Con)
My Lords, what a splendid address by my noble friend Lord Popat, spelling out the great shared values of the Hindu and Jewish communities. I am humbled by and proud of the contribution to mankind of the Jewish people, from their very early history through the dispersion to the present day. Of the 892 individuals who have been Nobel Prize winners since its inception, 201—22%—have been Jews or of Jewish descent.
On Sunday 18 November, the Association of Jewish Ex-Servicemen and Women—AJEX—of which I have the honour to be president, will be marching in its annual Cenotaph parade, as it has done since 1934. In the First World War, more than 50,000 British Jews served, out of a community of 350,000. Likewise, in the Second World War, 60,000 served. A further 30,000 Jews who lived in the British Mandate for Palestine—now partly Israel—volunteered to serve this country. Very large numbers were killed and wounded in both wars and a significant number of Victoria Crosses, DSOs and other awards for bravery and distinguished service were awarded. I intend to lodge this information in the Library.
In the prayer that is used in synagogues for the Royal Family, the present Chief Rabbi introduced the following words: “May God bless and protect Her Majesty’s Armed Forces”. I, and unquestionably those in AJEX and their families, as well as those serving today—and, indeed, the vast majority of the Jewish community—would totally disagree with the view that many would leave this country if Corbyn got to power. We are proud British Jews. We will fight with all the weapons that a great democracy such as ours will allow us to use. What is splendid is that people such as the noble Lord, Lord Popat, all the other Peers here today and vast numbers of the British people would be alongside us in such a fight. It goes without saying that, like the Popats of this world, we Jews would also fight just as strongly for other ethnic minorities who found themselves under attack. Never again will we be carried away in cattle trucks.
Lord Pannick (CB)
My Lords, there is an old Jewish joke. Manny and Issy are facing a firing squad. Manny says, “Please can I have a final cigarette?”. Issy whispers to him, “Ssh. Don’t make trouble”. I am very pleased that the Jewish community and all our many friends, including the noble Lord, Lord Popat, are making trouble about the scourge of anti-Semitism. There have always been anti-Semites and I am afraid there always will be. But what is so alarming is that, in this great country—a country that gave refuge to my great-grandparents when they were fleeing pogroms at the end of the 19th century—the leadership of one of our major political parties is incubating anti-Semitism.
When the leader of the Labour Party calls representatives of Hamas his friends, despite the fact that their policy is to kill as many Jews—I emphasise Jews—as possible, when he applauds graffiti that show the working man oppressed by Jewish bankers, when he expresses support for a vicar who suggests that Mossad was responsible for the 9/11 outrage, and when he contends that British citizens who are Zionists do not really understand this country, it is not surprising that his shameful conduct encourages the release into the political atmosphere of a poison that is polluting our civil society. No politician who tolerates, far less encourages, such a virus is fit for public office.
Lord Beecham (Lab)
My Lords, I refer to my interests as vice-chairman of the New Israel Fund UK and as a member of the All-Party Parliamentary Group Against Antisemitism. It is deeply disappointing that this appalling manifestation of racism should still be with us, especially in the light of the dreadful history of the 20th century. It is especially troubling that there are people who are in denial about the problem, with some people in the party that I joined 58 years ago refusing to accept that it exists, even when Jeremy Corbyn has, belatedly, recognised it and pledged to eliminate it.
Let us be clear that this is not just a matter for the Labour Party. All three major parties have encountered the problem to some degree. But there has for some time been a rise in the number of anti-Semitic incidents, including violence and vandalism, and latterly a tidal wave of vile abuse and threats through social media—perhaps in this area it is better labelled anti-social media—to which Jewish Labour MPs, particularly women, have been subjected. Members of your Lordships’ House will join me in paying tribute to their courage in the face of such appalling treatment.
The Community Security Trust has for 24 years worked to promote the safety of the Jewish community and is now also assisting the Muslim community, which has also been subjected to racism. The trust deserves our gratitude and continued support. Two areas require urgent attention. The first is the problem of social media and the failure of the industry to tackle misuse. The second is the need to do more to promote the concept of a tolerant, multi-ethnic society through our education system, starting from a young age.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, we have been treated to a debate of incredible quality and I thank my noble friend Lord Popat for his stirring, thoughtful and perfectly crafted speech, which set the tone for the whole debate. I also pay tribute to members of the Labour Party, in particular the noble Lords, Lord Beecham and Lord Mendelsohn, who have shown considerable courage in criticising their own leadership—and rightly so.
I will try to deal with some of the issues that have been raised. I agree very much with the importance of the International Holocaust Remembrance Alliance working definition. I am very proud that this country and this Government were the first in the world to adopt the definition in 2016. I also thank the right reverend Prelate the Bishop of Birmingham and through him the most reverend Primate the Archbishop of Canterbury for their work and for the actions of the Church of England this week in adopting the definition, which sets out an important signal of where British faiths are and where the great mass of people in this country are.
In preparing for this debate, part of me said that the issue was so important that I should not be party political. Another part of me said that it was so important that I did need to be party political. That part won out. But it is not an unqualified criticism of the Labour Party—far from it. It is not really the Labour Party but the leadership of the Labour Party. It is impossible to think that the Labour Party of Harold Wilson, Jim Callaghan, Michael Foot, Neil Kinnock—now the noble Lord, Lord Kinnock—Tony Blair, John Smith, Gordon Brown and Ed Miliband would be where the Labour Party is today. We know that that is not where the bulk of the Labour Party is. It is certainly not where its leadership in this House is, or where this House is at all. But it is a problem that needs addressing and needs addressing quickly. I also should have thanked the noble Lord, Lord Haskel, for what he, too, said about the Labour Party and the need to act.
But the issue extends beyond that; of course it does. As the noble Lord, Lord Beecham, correctly said, there is the issue of online cyberactivity. We have acted, and let us be clear that there is much more to be done, not just in relation to anti-Semitism—although certainly in relation to that. There are issues, too, with Islamophobia. I hope and believe—and I work with my noble friend Lady Williams on this—that the party will move to a definition of Islamophobia. We will be doing that in considered time with others because it is important that we demonstrate that this is broader than anti-Semitism.
But this debate is rightly on anti-Semitism. I am pleased that, given the paucity of the time that we have had for contributions, we will have another debate in government time before Christmas. I know that my noble friend Lord Polak withdrew from the debate because time was so pressured. It was important that noble Lords were able to speak as they did, so very powerfully. That is why I am left with little time myself—but I will write to noble Lords on specific issues that they raised in this debate.
I also thank the noble Lord, Lord Sugar, for what he said about the state of British politics, and I, too, will say something about the importance of education and more broadly about Holocaust denial. In the last 10 days, I have returned from Bosnia-Herzegovina. I travelled to Srebrenica, which, as I have said to people, was both a harrowing and awe-inspiring thing to do. I met some truly extraordinary people there. It is extraordinary that such a thing could happen in a country where people were living side by side, just as the noble Lord, Lord Sacks, was talking about—I thank him for his contribution and for being here. Noble Lords should believe me when I say that he does know what he is talking about, and anyone who says otherwise is not listening properly.
It is important to recognise that, in parts of Bosnia-Herzegovina and the Balkans, there is still denial of a genocide that happened such a short time ago. Despite DNA identification of more than 6,000 victims, which is pretty conclusive in legal terms, as the noble Lord, Lord Pannick, would know, there are still people denying that there was genocide in that country. We have this too of the Holocaust, which is something that we must confront as a House. Very powerfully that message must go out as it has today.
I was moved too when my noble friend Lady Altmann talked about the contribution that the Jewish population had made to Britain. That community is as much a part of Britain as I am or as all of us are, and it is important that we recognise that and the massive contribution it has made to our society, as my noble friend Lord Sterling also said.
It is difficult to think that we are where we are now. Not long ago and not far away, we witnessed the most dreadful tyranny that the world has ever seen—the most odious ideology driven against the Jewish community and others. This country then was a beacon of light, and so it must remain. But these things are very fragile, as I know from my recent visit to Bosnia-Herzegovina, and we heard most powerfully from my noble friend Lord Popat about that too.
My noble friend Lord Finkelstein, who alas is not in his place, wrote of his unswerving commitment to this country and his feeling of safety and security here. Yet he said that he found himself understanding how those who used to fear the knock on the door were fearing that knock on the door now. There were hints of that in the contribution of the noble Lord, Lord Palmer of Childs Hill, and in the understanding of the noble Baroness, Lady Deech, when she talked of the importance of the state of Israel. It has to be seen very much in that context.
So let us be clear about the united message that is going out from this House today. It was led by many speakers in the debate, with important contributions from the noble and right reverend Prelate, Lord Harries of Pentregarth, and the noble Lord, Lord Alton of Liverpool. The message is that in this country we remain totally committed to tackling anti-Semitism alongside other religious hatreds and doing whatever is needed to remain a united country of all faiths and no faith. That is the message that must go out powerfully to all politicians and to all people throughout this country.
In Vitro Fertilisation: 40th Anniversary
(5 years, 7 months ago)
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Baroness Deech
That this House takes note of the 40th anniversary of the first baby born using in vitro fertilisation.
Baroness Deech (CB)
My Lords, let us celebrate the birth of Louise Brown in July 1978, a revolution in reproductive science and a British first due to the work of Dr Robert Edwards, a Nobel Prize winner, and Dr Patrick Steptoe. The government response was to establish a committee, chaired by Baroness Warnock, to look into the repercussions. Her 1984 report of the Committee of Inquiry into Human Fertilisation and Embryology paved the way for the establishment of the Human Fertilisation and Embryology Authority in the 1990 Act. Baroness Warnock famously said:
“People generally want some principles or other to govern the development and use of the new techniques. There must be some barriers that are not crossed, some limits fixed beyond which people must not be allowed to go. A society which had no inhibiting limits, especially in the areas of birth and death, of the setting up of families and the valuing of human life, would be a society without moral scruples, and this nobody wants”.
These should continue to be our guidelines for the future, whatever it holds.
As well as establishing the HFEA, which I had the honour to chair for seven years, the 1990 Act provided for the licensing and storage of embryos, a database, and the use and donation of gametes in treatment and research. The 2008 Act provided further for research on embryos, for same-sex and unmarried couples, surrogacy and a ban on sex selection.
The UK is a world leader in embryology and IVF. Our regulation, which is studied in many other countries, has provided responsible conditions for research and has safeguarded the health of parents and babies. This is the opportunity to thank the Lord Speaker, in his earlier incarnation as the Secretary of State for Health, for getting Baroness Warnock to write the report and for kick-starting the whole process. It is an example of his forward-looking attitude to public health. The noble Baroness, Lady Bottomley, also played an important part in getting the Bill through.
Fortunately, the HFEA has survived at least two attempts to get rid of it by amalgamation. It has stood the test of time and provided a safe haven for new developments like mitochondrial donation. A few limitations will be noted, but we should celebrate the overall success of this British achievement—a magnificent anniversary for the potential of parenthood and for the prospects that embryo research have opened for good health. More than 8 million IVF babies have been born worldwide, 300,000 of them here. By 2100, 3% of the world’s population may be due to IVF. One in six couples has fertility issues. Some 41% of treatments are on the NHS, but availability varies by region for financial reasons. Only 24 clinical commissioning groups offer three cycles of IVF, in line with the NICE guidelines, while seven offer none at all. Moreover, the conditions applied by those that do offer IVF vary, such as being under a certain age or not already having children.
What happens if you have to pay privately? The cost is exorbitant. The HFEA has no remit over price. The cycle of treatment can cost up to £5,000 and there are stories of pricey add-ons being offered without proof of their efficacy. Many people go abroad for treatment because they are deemed unsuitable here, because of the cost, or to avoid the identity of the donor ever being disclosed. There is freedom of movement for such services, but the standards applied in other countries may well be inferior to ours—for example, in screening sperm for disease. They may be more lax about the use of multiple embryos, resulting in a multiple pregnancy. The woman treated abroad comes home to deliver, say, triplets in a UK hospital with the attendant expense and risk that comes with triplets.
The estimated cost of providing full NHS fertility services is £77 million. This would be money well spent because cuts in NHS provision may tempt doctors to transfer more embryos than they should, with the resulting costly multiple births. The percentage of multiple pregnancies through IVF has dropped from 25% in 2008 to 11% in 2016, and this decrease needs to be sustained. Multiple pregnancies are three times as expensive as single ones, sometimes giving rise to emergencies in pregnancy, ill health conditions in the babies, and costs to families both psychological and financial. Regulation must resist the blandishments of doctors to maximise success through the transfer of multiple embryos.
There has been a rise in pre-implantation genetic diagnosis of embryos, enabling parents with a genetic disease to choose healthy embryos. It is possible to screen for about 400 serious diseases. There is no international legislation on this, leading to fears of designer babies. Egg freezing for social reasons and for the preservation of the fertility of cancer patients has increased to more than 1,000 per annum. The techniques for freezing eggs are improving and the topic needs to be revisited because the 2009 regulations on the statutory storage periods for gametes were drafted before freezing became a real option. Freezing enables women to start to balance personal and professional life choices. The basic 10-year limit on storage needs to be reviewed urgently. If a woman freezes her eggs at the age of, say, 25, they will be disposed of when she is 35 so they will not be available to her when she is most likely to want to use them—and even more so if she freezes them when she is in her 30s. If they are allowed to perish, she will be forced to use the more expensive and inconvenient donor eggs.
The regulations as they stand are discriminatory and may be contrary to Article 8 of the European Convention on Human Rights because sperm can be stored for 55 years. The 10-year limit on eggs is wasteful. The cost of treatment and annual storage charges are very high: a few thousand for the removal of the eggs and then a rising charge every year for storage—a charge which a woman has no choice but to meet, and in the end all that is wasted. An extension could be effected by regulation, as allowed by Section 14(5) of the Human Fertilisation and Embryology Act 1990, by adding a ground for extension such as the woman not yet having made a decision about use or not having completed her family. Alternatively, it could be achieved by a panel allowing extension on a case-by-case basis. I want an answer from the Minister on this.
Mitochondrial donation is another British first, which noble Lords will recall debating in this Chamber in 2015 when the regulations permitting it were approved. The UK was the first country to license gene editing in research and mitochondrial donation in treatment: that is, a second mother providing normal mitochondria for the egg of the carrying mother to free a baby of disease.
All these advances mean that the debates continue about the moral status of IVF and the embryo. We should be wary of too much pressure being put on women to pursue treatment at all costs and of treating men as mere sperm donors, along with the pursuit of perfection. Commodification of the male contribution is regrettably a consequence because the treatment and effects tend to be focused on women. The man’s consent was deemed necessary in the Natalie Evans case, but was totally overridden in the crowd-pleasing judgment in the Blood case, luckily undone by later legislation.
The burden of guilt on the shoulders of the infertile woman seems especially heavy in societies where wives are valued for not much more than their fertility. A message taken from reflection on the 40-year history of treatment is this: every woman, like every man, is worth while as her own person without having to be a mother. No childless woman should ever be made to feel that she can be perfected and given a role in life only by being subjected to every reproductive technique that can be provided at limitless expense. There has to come a time when a caring doctor should consider the infertile woman’s future with her if the treatment does not succeed.
IVF has responded to and been influenced by changes in family structure, providing egg donation and surrogacy for older parents and same-sex couples, and PGD and mitochondrial transfer to help parents avoid disease in their children. Anonymity in sperm donation has ended and children will be able to get information about their fathers if they know that they are IVF-conceived. This will have an impact on our views of biological and social parenthood.
What is coming down the line? Excess embryos have enabled human embryo research, for example into miscarriage and growth defects. They may be kept for only 14 days from fertilisation—a limit that requires re-examination now that embryos may be kept viable for longer. Researchers have reached a point where they are beginning to think about experimenting on embryos up to 28 days old. This is too controversial; it would reignite bitter divisions over the nature of the embryo. As chair of the HFEA, I have been asked when the embryo or foetus is viable; I am sure that many religious leaders have been asked the same question. In Judaism, the answer is quite simple: only when it has graduated from law school.
In any case, scientists are only just beginning to keep an embryo alive for 13 days. Despite the great medical advances that could come from watching the crucial period in human development in the first month after conception, the time is not yet ripe for extension, as was said by Baroness Warnock. The birth of a cloned sheep, Dolly, in 1997 led to studies on human embryonic stem cells and stem cell research. Cells may be used to grow tissue for regenerative medicine, such as for heart disease or Parkinson’s. Genome editing—the removal of heritable characteristics from embryos, eventually editing DNA—is progressing. It is not yet permitted here, but the Nuffield Council on Bioethics recently reported that it might be permitted on a case-by-case basis if it is consistent with welfare, social justice and solidarity, and strictly regulated. Should it be? These issues need to be debated by Parliament well in advance so that they are understood and acceptable to the public and can be placed under satisfactory regulation.
I am concerned that the regulation of future genetic advances is overly complicated and difficult to navigate. Will our genetic future be as well regulated as our recent reproductive past? Following the Rawlins review into medical research in 2011, the plan seems to be that the Human Tissue Authority licenses establishments that are involved in handling and processing tissue, and monitors the quality, safety and traceability of cells used for human application—except in the case of reproductive cells, which are the responsibility of the HFEA. The Health Research Authority provides ethics review and authorisation for gene therapy medicinal products. The HFEA has to decide whether to license novel treatments that involve the manipulation of reproductive cells according to its own criteria. The Medicines and Healthcare Products Regulatory Agency provides marketing authorisation for medicinal products, including stem cell therapies, under the advanced therapy medicinal products regulations. Is that clear? Me neither. This regulatory pathway is apparently clearer to navigate for stem cell researchers than it used to be, but consistency between EU member states remains an issue. Researchers may well go to the member state with the lowest safeguards.
In 40 years, IVF and reproductive medicine have gone from simple infertility issues to matters of convenience and preference, such as the insemination of older women who are past the menopause, posthumous insemination, choosing the baby’s sex, and PGD for the purposes of eliminating inherited diseases or achieving the birth of a sibling with tissue that may save a sick older child. Then, there is cloning and stem cell work that may give us renewed tissues and the ability to live healthily for longer, if not for ever.
Just as the invention of the contraceptive pill 50 years ago divided sex from pregnancy, so IVF developments have separated genetic parenthood from childbearing, the embryo and pregnancy. Baroness Warnock’s slim report succeeded in harnessing the very different views of scientists, clinicians, patients, ethicists, religious people and politicians. Developments in IVF have kept in step with changes in the modern family and have put Britain at the forefront of innovative but safe research. I hope that Baroness Warnock is proud of the achievements of the regulatory structure to which she gave birth. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, it is a great privilege to follow the noble Baroness, Lady Deech, on this important issue. I put my name down to speak simply because I had responsibilities in the early days of the development of the law relating to this subject. I join the noble Baroness in paying tribute to the then Secretary of State for setting up the Warnock committee, which did a tremendous job of dealing with an issue that had never really been dealt with before, either here or elsewhere. Its report was an excellent summary of the conditions required to be met by any legislation.
The issue of the report was followed by a considerable period of consultation. Eventually, shortly after I became Lord Chancellor, it was decided that we should legislate in this area. The drafting of such legislation, with no precedent of any sort but a very clear steer from the Warnock report, was quite a challenging task. In the meantime, a shadow body was set up, in effect to try out the structures proposed by Baroness Warnock and her committee. The lessons learned from that were certainly taken into account when framing the legislation.
In due course, the Government decided that the question of embryo research was one on which there was considerable difference of opinion and that, therefore, they were to take no line on it. They were to leave it to a free vote, which was influenced to a great extent by one’s views about creation and procreation on a theological level; some Members of the House were prepared to comment on that aspect of the matter and the nature of the research that was possible. As I said, a free vote was decided on. Of course, one difficulty is that there is no guarantee that the result of a free vote will produce a similar result in the two Houses of Parliament.
There was also the question of where the draft Bill should start. Ultimately, it was decided that it should start here. I therefore had the unique opportunity of bringing forward in Parliament something that was unique in the world. One of the techniques that we used, which I think proved extremely valuable, was to set out two choices in the Bill: one for embryo research and the other for where that was not permitted. The full detail was required on both and it was obvious that they could not subsist together. If I remember rightly, it was unique at that time to have such a combination in a statute. The question at the ultimate vote on the subject was: “A” or “B”.
The research scientists had instructed me that up to and until 14 days from conception, the materials in the cells in the embryo were not distinguishable between those which would go on to form the living embryo and the surrounding materials supporting that living embryo. Therefore, 14 days was, from the theological point of view, a good length of time to take where there was no identifiable human life yet obtaining. I think that is more the criterion that was used than anything about how long the embryo would last. It was the uniqueness of the personality question that was fundamental.
The spirit in which the Bill was considered here was one which I still remember with warmth. It was very clear that this was extremely important, very original, and needed very careful consideration. Needless to say, there were Members of this House who were in favour of embryo research and others who were dead against it. In due course, after very considerable debate at Second Reading and then in Committee, we had the vote on Report. I determined, rightly or wrongly, that no personal view of mine would be expressed. When the Government take the view that they should be neutral, it is very common for a Minister to have the chance to express his or her own personal point of view, even though the Government have not accepted it or are not ready to accept it. I thought that, from the point of view of securing a proper vote here, I should not express any personal view of my own.
There was a very full debate which was followed by the vote. It would be right to say that our late friend Lord Walton of Detchant was the leader, along with Lady Faithfull, of those who wanted to legalise the research. The other side was represented, at least to some extent; there were others—the late Duke of Norfolk was a pretty ardent opponent. However, in due course, the vote was taken and it was substantially in favour of that research. To my intense relief, when the Bill went to the House of Commons, the result was the same, so that aspect of the Bill went through with considerable success.
Then another development occurred. When the Bill reached the House of Commons, there was a question as to whether abortion was a proper subject to be considered in that Bill. Since it was all about embryos, it was quite hard to see how that debate on abortion could be excluded. So the very important debate on research in relation to embryos was equalised in importance by people who wanted to change the Bill that the noble Lord, Lord Steel, had introduced—it later became an Act—by modifying the terms of the exemptions. That was a subject on which it was pretty obvious that there was a very great deal of opportunity for difference of opinion. That having been added in in the Commons, and with the Bill coming back to the Lords, your Lordships can understand my anxiety as to whether we would get a Bill at all without relying entirely on the special authority of the House of Commons. Again, to my intense relief, the changes made to the abortion law in the Commons were accepted here very reasonably and so the Bill became the 1990 Act, and with it the appointment of the authority which has existed separately ever since, despite attempts to amalgamate it with others. It has been extremely successful and I pay tribute to those here who played a part, including the noble Baroness, Lady Deech.
The vast and rapid expansion of science led to a question: how long could the Bill, which was introduced and became an Act in 1990, last? I am rather gratified that the main structure of the Act in relation to the regulations and the regulatory powers has existed until now. There is very little sign of really radical change. There were substantial changes made in 2008 when the regulations required an order that IVF should be tried or changed, but the most important change was that the transformation of nuclear material was to be allowed. It is important in this connection to remember that the law here had been in favour of embryo research whereas, I think I am right in saying, most of the continental countries—our European partners—do not allow that or certainly have not allowed it. That was one of the reasons why, when the mitochondrial regulations were being discussed here, there was a bit of anxiety about confirmation with the European regulations. Fortunately for us, we were not party to all of these and it was, therefore, possible to introduce this tremendous possibility of dealing with mitochondrial diseases.
Over the years, this has been a tremendous area of success for our scientists and doctors who work in this area. I pay tribute to the noble Lord, Lord Winston—I am sorry he is not here today—who played a great part in this. I have heard his moving accounts of how women who were not finding it possible to have successful conceptions were dealt with and how important it was to do what was possible to alleviate that. I wish every success to this enterprise as it goes on into the future. I have great confidence that it will be successful as it is now.
Baroness Barker (LD)
My Lords, every day, my school bus used to go past a building which, in those days, looked very reminiscent of the Victorian workhouse that it had once been. It was a little general hospital that nobody paid much attention to, until that day in 1978 when Louise Brown was born—within kicking distance of Boundary Park—in that hospital. It is a source of ongoing pleasure to the people of Oldham that she was born not in New York, not in London and, best of all, not in Manchester. The story of why she came to be born in an obscure district general hospital and how the world-beating team came to be there is a very interesting story, which can be read in the books by the noble Lord, Lord Winston, and I suggest that noble Lords do so.
I thank the noble Baroness, Lady Deech, for the opportunity today to right a wrong. Everybody knows about Steptoe and Edwards; very few people, me included, knew about Jean Purdy, who was a central member of that team. She ran the lab, but she did a lot more than that. She was co-author with Robert Edwards of 26 academic publications between 1970 and 1985 and she has been credited with being the first person ever to recognise and describe the formation of an early human blastocyst. But, like many a woman in science, she has been overlooked and forgotten. Sadly, she is no longer with us—she died in 1985—but let us give her memory its rightful recognition today.
The noble and learned Lord, Lord Mackay of Clashfern, set out in helpful detail the history of legislation on this issue and the part played by this House, which it is important to recognise. Back in 1984, Baroness Warnock and her committee set out the ethical framework under which all subsequent consideration has taken place. In 1990, as the noble and learned Lord set out, the legislation came to the fore. It stands as a robust framework within which all the developments in science and societal changes have been assessed ever since.
It is on that note that I wish to proceed. Those who have followed my work in this House, particularly in a debate that we had in December 2016, will know that I have an ongoing interest in surrogacy, and I will talk principally about that today. This week has seen the #Scream4IVF campaign, led by the charity Fertility Network, which demands fair access to IVF fertility treatment. Be warned: it will be having a rally outside Parliament on 10 October, when it will be possible to witness the longest scream. I leave that to your Lordships’ imaginations.
Surrogacy UK and some of the other charities carried out some work throughout 2016. Principally, they went back to talk to Baroness Warnock about why she took the position on surrogacy that she did when the legislation was introduced. At that time, there was a very strong feeling, shared across the board, that we did not want commercial surrogacy ever to take hold in this country. On reflection, Baroness Warnock has said, we made the laws on surrogacy so tight that they have turned out over the longer term to be rather too restrictive.
Surrogacy was available prior to IVF, but the development of IVF opened the door to what is called gestational or host surrogacy. That made three significant changes: couples where both people could provide genetic material but where the woman was unable to carry a pregnancy to term could have a child who was biologically connected to both of them; if an embryo was created using a donor egg and the male partner’s sperm and the female could not carry, the traditional route of surrogacy could be avoided for those who wanted to use the help of a surrogate who was not biologically related; and others who had been unable to have children could now do so—that meant, for example, that gay male couples were now able to have children using surrogacy.
However, there have been some recent developments. In particular, back in 2017 a single person had a child by a surrogate abroad and brought that child back to live here in the United Kingdom. Under our present laws, a parental order could not be given for that child. As a result of that case, the Government found themselves forced to consider a change, and they issued a remedial order. The Joint Committee on Human Rights looked at the Government’s proposal and said that it thought that it set up other forms of discrimination against single people. That order was therefore withdrawn and a second one issued. That is the subject of a consultation that closes tomorrow. I sincerely hope that, when that consultation has finished, the Government will come forward, with some speed, with a new order that will allow single applicants with the genetic link to a child to apply for parental orders.
We had a fuller debate on the many issues of surrogacy back in 2016. At that time, the Government responded somewhat favourably. They have asked the Law Commission to carry out a review and to come forward with proposals for changes to the law. The Law Commission is doing its initial work. I met it over the summer and I think that the consultation will formally start in spring. I hope that when the Law Commission does its work and comes forward with a proposal, the Government will work with charities and the newly established All-Party Parliamentary Group on Surrogacy to come forward with legislative proposals, because there are people for whom time is running out. Their desperation shows in the letters they send to me.
I congratulate the Government on the guidance they produced in 2018 for those going through the surrogacy process—surrogates and intended parents—and the professionals involved in it. That was very supportive of surrogacy as a means of family creation. I reiterate the point made by the noble and learned Lord, Lord Mackay of Clashfern, when we had a debate on surrogacy. He said that there are now many more ways in which to have children and there are many more different forms of families than there were when this legislation was put in place. It is time to update it.
I will follow what the noble Baroness, Lady Deech, said about emerging developments in genome editing. This is exactly the kind of scientific breakthrough and research and development foreseen by those who set up the original legislation. As she said, there have been developments. In 2012, a new genome editing process called CRISPR was developed. It has had a dramatic impact by enabling much more precise and practicable biomedical analysis. In 2015, Chinese academics published the first ever research in which genomes of human embryos were edited using that means. As the noble Baroness, Lady Deech, said, this potentially has an impact not just for identification of potential disease but for improvements to fertility techniques, because it will become increasingly possible to determine which embryos are most likely to succeed in delivering a pregnancy.
The noble Baroness, Lady Deech, is right: at the moment, these are simply matters for research. No application has been made for this to be used in reproduction, but, as we know, we are not the only people in the world to be engaged in this work and there may be a breakthrough in another jurisdiction. If that were to be the case, I think that people in this country for whom infertility or mitochondrial disease are a significant factor would wish to see us do as we have done in the past, which is to take into account that which the scientists are saying and to arrive at a conclusion.
I agree with the noble Baroness, Lady Deech, that it is important to be clear about the regulation of research and treatment. We have led the way in this country, and we should continue to do so. The noble and learned Lord, Lord Mackay, talked about the protagonists on behalf of research—those who were pro research—and those who were against. I am all in favour of there being research, but only when a strong regulatory framework is in action and when there is quite detailed and regular parliamentary scrutiny of legislation and the performance of regulators. The heavier we are in legal requirements and regulatory supervision, the more likely we are to enable progress to happen much more rapidly. The way in which we have dealt with these matters over the years has been infinitely better than in the United States, for example.
I share with others the belief that the upholding of the original ethical principles set out for us by Baroness Warnock remains important, but it is for us as Parliament, working with the scientists as we have done so often in the past, to be sure that we are ready and able to determine how those principles should be applied to emerging scientific knowledge and new treatments and techniques. Why? Fundamentally, it is because of women. All these laws apply first and foremost for the protection of women, not only so that they can have the families that they want but so that they have safe places to go in which to fulfil their dreams and from which they should never find themselves being forced into either unregulated or unethical practice.
This is the sort of work that we do best. I thank the noble Baroness, Lady Deech, for reminding us of our responsibilities in this really important matter.
Baroness Boycott (CB)
My Lords, I thank my noble friend for bringing this anniversary to our attention and congratulate her on the incredibly valuable work that she has done. I was pleased, not surprised and slightly saddened to learn about another unknown, unsung heroic feminist scientist. I thank the noble Baroness, Lady Barker, for bringing her to my attention.
Forty-six years ago, I was a co-founder the feminist magazine Spare Rib. We were a great deal more worried about not getting pregnant at that point than about getting pregnant. We were right in the early years of the pill, the cap and the coil, and all the extraordinary things to do with contraception rather than conception. None of us had any children and we were woeful in dealing with the issue of how one might be a member of the women’s lib, as we were then, as well as being a mother. But I remember clearly some of my older friends who had worked and then tried to get pregnant in their 30s. For a particular friend to whom I was very close, it just failed and she hit her early 40s and had no children. We were only just six years before this quite extraordinary scientific development hit the world and, suddenly, the prospect of what it could mean for you as a woman to be able not only to have contraception but to be helped with conception when you needed it. It was a staggeringly wonderful invention.
It has done so many things for our lives and our times. As was mentioned by others, we have redefined to a great extent what it means to be a family: a family is about one or two loving adults of either sex bringing up a child that they greatly want. It has been babies born to same-sex partners and babies born to single women who have given up on ideas about how to find Mr Right. It is nothing short of a miracle and it is not an overestimation to say that it has changed not only the way we make babies but the family. A recent Cambridge University study showed that children raised by same-sex couples do just as well as those raised in heterosexual marriages. It is not a matter of the structure; it is a matter of the love.
However, I have concerns. Like many things in our world, access to IVF has all too often become the privilege of the rich, despite recommendations from NICE that all women who are over 30 and have been trying for two years or more to have a baby should be entitled to three cycles of IVF on the NHS. These decisions are made by local CCGs. As a result, only 12% of them currently offer those three cycles. IVF, like many things, has fallen victim to a postcode lottery. Can it be in any way true that your income should determine your right to be a parent?
We live in a society where we believe that everything we might desire will be available if only we can scratch up the money, but the promises that IVF clinics make to women are fulfilled in only 21% of cases. Forty years on from this extraordinary breakthrough, does it seem ethical that we allow clinics to trade on human desperation, turning what should be an altruistic medical invention into a gold-mine for the very few?
I know that we have strict laws around surrogacy in this country, but it also concerns me that very wealthy people can outsource gestation, increasingly these days to poor women overseas who will literally rent out their womb for a nine-month period. About 15 years ago, I had a television series and interviewed a very rich man. He was single, gay and, as Jane Austen would have said, in possession of a considerable fortune, but he was lacking something, and that something, he thought, was a child. I watched and filmed as he found an egg from a website in California—the donor was a six-foot tall Stanford graduate with long blond hair; he was a very small, dark-haired man. He got a womb from a different organisation, also online, and he flew over to Los Angeles for a week to deposit his sperm. Around nine months later, he was flying back to London with triplets. It was apparently quite tricky getting the passports, but they now reside somewhere in Hampshire.
His surrogate and the egg donor were extremely well paid; they were women who knew what they were doing and were apparently completely content with the arrangement. But it worries me: is it morally justified? Does it matter that a child’s biological origin is obscured by so many different routes, a bit like an offshore bank account? Only time will tell. These developments are happening faster than we can debate and consider them morally. Or does it again come back to money and being able to do what you want with it?
Women the world over are being sexually exploited and victimised through war, slavery and trafficking, and one of the consequences of this technology should never be an extra reason to exploit extremely vulnerable women who set themselves up to say, “I will rent my womb”. It is exactly the same as the illegal trade in kidneys—at least I think it is.
My final concern is what this has done for men. One of the things I think we got wrong in the early days of feminism was to say to blokes, “We want your jobs. We want to be in the boardroom, in the law courts, standing in front of university students, in politics, and what we would like you to have of our lot is the cooking, the ironing and the childcare”. It was not really a very intelligent trade. The end result is that roles for women have expanded enormously—we can be all those things—but I believe that it is still very difficult for men to be fathers, because as a society we do not put enough credit where that credit is due. It worries me that men, when it comes to IVF, are pretty much left out of the picture. They deposit their deposit and then they go on and hope for the best. I would hate to see this extraordinary science in some way devaluing fatherhood. Fatherhood is fantastically important to children and to men, and we should make sure in all this debate that we remember that it is just as important as motherhood.
The Earl of Selborne (Con)
My Lords, I join other speakers in thanking the noble Baroness, Lady Deech, for giving us this opportunity to review the progress of IVF over the last 40 years. Previous speakers have reminded us of the timeline of the developments, from Louise Brown’s birth in 1974 to the commissioning of the Warnock report, of which my noble and learned friend Lord Mackay reminded us, and of course the passage of the Human Fertilisation and Embryology Act, with my noble and learned friend again playing a central role. We then move on to the Human Fertilisation and Embryology (Research Purposes) Regulations 2001 and the more recent debates on mitochondrial donation. The most recent date in this timeline is when the regulator gave permission for the use of gene editing in research in 2016. It is to that subject that I want to devote my remarks today, looking forward rather than back to the timeline of the last 40 years.
The noble Baroness, Lady Deech, referred to the very informative Nuffield Council on Bioethics report, Genome Editing and Human Reproduction, which came out in July this year. This should be read in the context of its previous report of 2016, Genome Editing: an Ethical Review. We should be grateful to the council for these detailed reviews of the ethical issues arising from interventions which are becoming ever more feasible in a research context and for which, at some future date, legislation will be required, whether to enable or to restrict its application in clinical practice—if one were a betting man one would say it would have to do both, in fact. The debates we had in 2015 on mitochondrial donation demonstrated how important it is—however well-intentioned and desirable the objectives may be—for these new technologies, which allow precisely targeted alterations to DNA sequences, to be the subject of wide debate, both in Parliament and more widely in society as a whole, before any legislation is contemplated to allow the new technology to move into clinical practice.
Gene editing without doubt has the potential to reduce the prospect of a future child inheriting a genetic disorder. Of course, there are also potentials unrelated to the avoidance of medical diseases and disorders. These give rise to completely different ethical and value considerations. I repeat that in the United Kingdom, since 2016, genome editing has been approved for use in research but remains illegal for reproductive purposes. It is difficult at present to predict with any confidence whether the cases in which we might influence inherited characteristics by genome editing will one day be widespread or relatively rare. The Nuffield Council on Bioethics helpfully identifies three kinds of closely related concerns in anticipation of the arrival of prospective new technologies. Again, this is very familiar to your Lordships because we have had these debates on mitochondrial donation and other areas where new technologies change the potential.
The first concern is that we sleepwalk into a new order as a result of technological momentum arising from pursuing the aims of science without an adequate consideration of their broader social and moral context and implications. The second concern is over function creep, whereby a technology expands its repertoire to encompass closely associated purposes, often for reasons of economic efficiency. There can often be benefits, but there may also be underlying values that need to be properly considered. The third concern is that the introduction of a new technology will lead us on to a slippery slope: we may see dangers ahead but can find no plausible reason, once an initial, innocuous application is conceded, to resist this expansion into more controversial areas.
The Nuffield Council’s conclusion, as the noble Baroness, Lady Deech, reminded us, as to whether human genome editing would ever be ethically acceptable is that interventions of this kind to influence the characteristics of future generations could be ethically acceptable if, and only if, two principles are satisfied. The first is that such interventions are intended to secure, and are consistent with, the welfare of a child who may be born as a consequence. The second is that such interventions would uphold principles of social justice and should not provoke or exacerbate social division or marginalise or disadvantage groups in society. Of course, that encompasses a very wide concept and calls for a broad, inclusive societal debate concerning the desirability of such interventions. The debate we are having in this House on the 40th anniversary of the first baby born using IVF is an appropriate opportunity to draw attention to the need for genome editing’s role in the field of human reproduction to be the subject, in coming months and years, of just such a wide-ranging debate, not least in your Lordships’ House.
Lord Harries of Pentregarth (CB)
My Lords, I pay tribute to the noble Baroness, Lady Deech, for the opportunity to engage with this subject at a very timely moment. I pay tribute also to her role as chair of the Human Fertilisation and Embryology Authority. She was a very successful chair at a crucial time in the development of the authority. Perhaps it is also appropriate to pay tribute to the noble and learned Lord, Lord Mackay of Clashfern, who, as he indicated, played a very significant role in steering the legislation in the first place. I had the privilege of serving at a slightly later period as chair of the House of Lords Select Committee on Stem Cell Research, which allowed stem cells to be made from embryos.
I also had the privilege of serving as a member of the HFEA and as chair of its ethics committee from 2002 to 2009. It might help your Lordships if I try to give a feel of how the committee works. We have heard some very important points, particularly from the noble Earl, Lord Selborne, about legislation for the future. The HFEA, I think we all agree, provides a very good model for whatever might emerge in the future in relation to gene editing, so I shall give a little feel of how it actually works. It is, above all, a deeply serious and responsible organisation, as it ought to be, dealing as it does with human embryos. Its membership is made up of medical scientists, clinicians and representatives of other groups which have a major stake in this field—such as parents—as well as people with legal and ethical expertise.
The HFEA was set up by the will of Parliament and is controlled by law. Very great care is taken at every point to ensure that this is so, with a lawyer present at all key decision-making points. The guiding principle, enshrined in law, as we know, has been the 14-day rule, originally recommended by the Warnock report and accepted by Parliament. Research may take place on embryos only up to 14 days. This is a happy conjunction of law, science and ethics, for 14 days is about the time of the formation of the so-called primitive streak and the beginning of the nervous system, after which the embryo is individuated and not just a bunch of multiplying cells. This means that record-keeping needs to be and is meticulous: every single embryo has to be recorded and accounted for. As well as the regular inspection and licensing of clinics, a key element in the work is granting licences for ground-breaking research and for new forms of treatment. How this operates is that a horizon-scanning group, involving top medical scientists, surveys what is happening in research around the world and then makes a judgment of what might in the next years be of relevance to fertility treatment. It will then be sifted through the ethics committee before coming to the full board for a possible licence when an application has been made. The procedure is extremely thorough and serious and good time is given for it.
As a result of such procedures, pre-implantation genetic diagnosis has come to be used in connection with parents who are carriers of a hereditary condition. Initially, it was possible only for single-gene disorders such as cystic fibrosis but now it is possible to screen for about 400 serious diseases. A number of eggs are fertilised, then only one which is free from the disease is implanted in the womb. This is a truly wonderful advance—just one of a number—sparing thousands of children and parents years of suffering, heartbreak and early death. Another advance is in relation to mitochondrial disease, as we have already heard, a research licence for which was granted in my time on the HFEA. Since then treatment licences have been given, again sparing so much hurt, pain and suffering. In vitro fertilisation is not a comfortable procedure and its success rate is unfortunately not very high, so it is never undertaken lightly, but it has been a huge blessing now for so many. For some people, the inability to have a child is a great source of sorrow but 300,000 children and their parents can now be deeply grateful for the existence of IVF and for a parliamentary system which allows this to take place safely.
One source of disquiet at the moment, as the noble Baroness, Lady Boycott, has already mentioned, is the difference between different areas. The NICE guidelines are that everyone in need of IVF should be allowed three cycles on the NHS but some regions do not now follow this, for financial reasons. Private treatment is expensive and it is clearly inequitable that people in some regions are not able to receive what others can elsewhere. I believe all regions should adhere to the NICE guidelines. I do not believe that anyone has a right to a child—children are a gift—but they have a right to try for one, and should not be precluded from doing so by cost.
The HFEA has long been a regulatory model much envied by other countries and I fully support the proposals made that we should have something equally sound and long-tested in relation to genome editing. As we have already heard, this is progressing fast in the removal of heritable characteristics from embryos and, eventually, in editing the DNA. It is not yet permitted here but, as we have heard, the Nuffield Council on Bioethics has reported that it might be permitted on a case-by-case basis if it is consistent with welfare, social justice and solidarity—and strictly regulated. The noble Baroness, Lady Deech, indicated some of the overlapping confusion that there is in this area. Clearly, we need the most serious debate in this House about germline modification and how that is to be regulated. Parliament needs to set up procedures for considering this issue in depth, and to do so soon.
As well as celebrating today the fact that so many women have been able to give birth to children as a result of the HFEA and the legal system which allows for that possibility, we can also celebrate the fact that the HFEA has for so long been well tried and tested. It provides a wonderful model for whatever eventually comes by way of regulating genome editing.
Baroness Jolly (LD)
My Lords, I know it is customary when we begin to wind up to say, “This has been an excellent debate”, but this debate really has been. It has been excellent simply because we have all the expertise here among us—I certainly do not include myself in that at all. The tone was set by the contribution of the noble Baroness, Lady Deech, raising the outstanding issues of genetics regulation and new science. All this of course comes from her role as chair of the HFEA. She raised many more issues and it might be worth trying to tease some of them out, and perhaps have more detailed debates. We have all been painting with quite a broad brush today and some of the issues need a slightly more detailed camel-hair brush.
The noble and learned Lord, Lord Mackay of Clashfern, was there to ensure that the law was fit for purpose, and 300,000 children are really grateful that that happened. He spoke about the ground-breaking legislation but also the importance of his neutrality; I thought that was a really interesting history lesson. My noble friend Lady Barker spoke of surrogacy and reminded us all that families just do not look the same any more. The noble Baroness, Lady Boycott, painted—as a feminist—a lovely technicolour picture of offshore bank accounts, conception and contraception. I can remember being newly married as a young woman when all this was happening. It was quite amazing compared with what our mothers had had to go through; it seemed we could have choice every which way we looked.
I remember as well the sense of excitement and wonder at the arrival of Louise Brown, the world’s first test-tube baby. There were photographs of a beaming Steptoe and Edwards on the front pages, and clunky graphics by way of explanation. My noble friend Lady Barker and the noble Baroness, Lady Boycott, both mentioned Jean Purdy and I am going to talk about her too. The helpful Library briefing tells us that she was part of it at the first. A nurse by profession, Jean Purdy was the one who actually made what Steptoe and Edwards needed and wanted to do: she actually made it happen. She was not an add-on but absolutely part of the team, and seen by both of them as part of it. She was the one who saw the fertilised egg which was to become Louise Brown dividing to make cells. I cannot imagine how exciting that must have seemed at that time.
However, I do not recollect seeing Jean Purdy in any press coverage at the time. It appears, again, that she was wiped out of history by Oldham when a plaque was put up in 1982, and again by Bourn Hall—the centre which she, Steptoe and Edwards founded to deal with the huge call for IVF after Louise. To give credit where it was due, Edwards tried to remedy this and wrote letters to all the people concerned but he was not listened to. I sometimes get the feeling that some things never change.
There is absolutely no doubt that on the ethics of this birth, opinion was not restrained. Many, including religious leaders, wondered out loud whether we should be playing God. In response, the Government very sensibly appointed the eminently qualified academic Mary Warnock, later to become a Member of this House, to head up the Committee of Inquiry into Human Fertilisation and Embryology. Her report gave rise to the 1990 Act and its successors, which today still govern human fertility treatment and experimentation using human embryos. Its effect has been to require licensing for procedures such as in vitro fertilisation and to ban research using human embryos more than 14 days old. It has been really interesting to listen to the noble and learned Lord, Lord Mackay, explain where the 14 days came from, the need to balance faith and credibility and all the issues that were going on at the time.
Dame Suzi Leather—a name that I had forgotten about for a long time—former chair of the HFEA, noted that,
“perhaps the greatest achievement of the Warnock committee is that it managed to get an ethical consensus that people understood as well as shared”.
That is quite interesting. The report is worth a read—it is not hugely long—and if you look at who was sitting on her committee, you can see exactly what she meant. They included the usual: academics, medics and scientists, lawyers, the vice-president of the UK Immigrants Advisory Service, social workers, a theologian, the chair of a health authority, an expert in adoption and fostering and a former student counsellor of Cambridge University students. Evidence-givers were just as diverse. Again, they were the usual sort of suspects: churches and faith bodies, scientists, lawyers, health bodies, health practitioners, organisations dealing with fertility, gay rights organisations and, the one that really made me chuckle, Garter—the College of Arms gave evidence. I thought that was really interesting. Those of us who have been to talk to Garter will probably have a quiet smile at that thought.
Baroness Warnock said in her report, and in the letter that she wrote to the noble Lord, Lord Fowler, now the Lord Speaker:
“Despite the way in which members have worked together, there remain nonetheless certain differences between us; indeed, it would have been surprising if, on such sensitive issues, we had been united. These differences, presented in three formal expressions of dissent have, significantly, focused on the very subjects, surrogacy and research on human embryos, which, to judge from the evidence, arouse the greatest public anxiety. Thus even in our disagreement we have reflected the range of views within society. It is not possible that a report like this should be equally well received in all quarters, given some of the controversial issues we have had to consider. There is bound to be criticism that we have gone too far, or not far enough. However, we have sought to provide on the one hand a reasoned discussion of the issues which we hope will contribute to a high standard of public debate on matters which are of deep concern to the public, and on the other a coherent set of proposals for how public policy, rather than the individual conscience, should respond to a range of developments which many people will not wish to participate in, but which others find entirely acceptable. We have tried in short, to give due consideration both to public and to private morality”.
She writes well.
In 1985 the immediate response was to set up a licensing authority as an interim measure prior to the legislation, which was the Human Fertilisation and Embryology Act 1990. This happened when many of us were young and could readily identify with the importance and significance of these measures. Some 33 years later we have gene editing in research; mitochondrial donation; same-sex and unmarried couples treated just as married couples—as legal parents; the outlawing of sex selection; the removal of anonymity; and still more research continuing in hospitals, research establishments and universities. British scientists are nearly always at the cutting edge of this research. Here I agree with the points that were made by my noble friend Lady Barker and the noble Baroness, Lady Deech, about the critical importance of a strong regulatory framework and parliamentary scrutiny. However, the moral issues have not gone away. We dispute the difference between storing sperm for 55 years yet eggs for only 10. Is this an issue of equality or science? Then, there is the question of overdue legislation. Could the Minister tell us when and where this might be considered, and by whom?
Previous research has mainly focused on the economic issues that can affect assisted reproductive technology usage, such as a country’s wealth and health insurance costs. However, in 2017 scientists from the Oxford University department of sociology and Nuffield College assessed for the first time the relative importance of the role that economic, demographic and cultural normative factors play in the process. The study compares the prevalence of ART usage across 35 European countries since 2010—the number of ART cycles per million women of reproductive age, defined as 15 to 44 years. The findings reveal that although economic factors and national wealth are important, it is not merely affordability that determines ART use. ART treatments were more widely used in countries where it was considered culturally and morally acceptable to do so. For example, the Czech Republic, which ranks 51st in a poll of the world’s wealthiest countries, reported nearly 10,500 cycles per million women, a usage level almost identical to the comparatively wealthier Denmark. By contrast, high-income nations such as Italy and the UK reported only around 5,000 cycles per million, half the rate of the Czech Republic. I am not sure what that tells us, but it is interesting that it is not just about the ability to pay.
We cannot have this debate without discussing the availability of IVF on the NHS, an issue already raised by the noble Baroness, Lady Boycott, and the noble and right reverend Lord, Lord Harries of Pentregarth. The 211 CCGs in England should be offering three cycles to women who meet the criteria based on evidence. In 2013, 24% of CCGs met that recommendation; now, it is nearer 12%—halving in five years. That is one in eight CCGs. I know that choices are difficult for a commissioner, but the consequences can be heartbreaking for a couple wanting a family. CCGs in Bury, Heywood, Middleton and Rochdale, Oldham and Tameside and Glossop all offer three cycles, as per guidance. I like to think that Oldham is aware of its history in making that decision. CCGs in Cambridge, Croydon and Basildon do not offer IVF at all.
Are the local health and well-being boards involved? Could the Minister clarify what public engagement and consultation goes on when making those difficult commissioning decisions? What support or counselling is given to couples, many of whom may be grief stricken or distraught? Is IVF only possible for affluent couples? Is a baby something that all families should consider as a right and therefore available on the NHS? These are questions that, hitherto, we have been sufficiently wealthy as a nation not to need to answer, but we do now.
Perhaps, then, the 40th anniversary of Louise Brown, the first test-tube baby, should be an opportunity to consider these questions again.
Baroness Thornton (Lab)
My Lords, I agree with the noble Baroness, Lady Jolly, that this has been an excellent debate, and I thank the noble Baroness, Lady Deech, for bringing this celebration to the Floor of the House.
I was a small bit player in bringing the statutory instruments to this House when I was a health Minister and working with my noble friend Lord Darzi. Something dramatic happened during the Second Reading of the Human Fertilisation and Embryology Act 2008. One of our fellow Members had a heart attack in the Chamber, which delayed the passage of the Bill. I am pleased to say that he made a full recovery.
I have been reading that debate in Hansard, and it brought to mind some noble Lords who are no longer with us. Earl Ferrers had a lot to say about male inheritance and other matters. It reminded me that for a short time, I became an expert in what was known as admix—the noble and learned Lord, Lord Mackay of Clashfern, will recall those debates.
The point is that we debated them in good spirit with an enormous amount of authority and good will and, in the end, came to conclusions which not only protected and enhanced the rights of people to have children who had not been able to do so before but protected embryonic research for the benefit of the whole of our world.
That is why the UK has been a world leader in embryology and HIV treatment. That is why we have seen revolutionary successes over the years, which date back to July 1978: to Louise Brown, the first baby born by this method. Every person I told about this debate immediately knew her name—she is a balanced woman who has led a balanced and normal life. How different her life could have been had she not been the first person created in that way. I pay tribute to her for the life that she has led and the way that she has handled what could have been very difficult.
All of these breakthroughs have brought immense joy to families, but there are always improvements to be made. Many of those have been mentioned today. I pay tribute to the Human Fertilisation and Embryology Authority for the work that it has done under successive chairs, who have been distinguished and each brought tremendous work and talent to their role. I was one of those who fought for its continued existence when, in 2010, we had a Government who proposed a bonfire of the quangos. The Human Fertilisation and Embryology Authority was included as possible kindling for that bonfire. I am very glad to say that the Government of the day changed their mind.
I miss my noble friend Lord Winston from the debate, as I am sure everyone in the House does. In recent years, he has brought some useful commentary to your Lordships’ House about the issues that now need to be addressed, and has taken part in debates about mitochondrial donation techniques and gene editing, mentioned by the noble Earl, Lord Selborne.
I shall not take 15 minutes, because I think that most of the issues that needed to be raised in this debate have been raised eloquently by those who are very expert. The Government need now to address some of the issues and this is a good moment to raise them.
It is 10 years since the last major overhaul of the UK fertility and embryo law and it is time that we explore the scientific, medical and social developments that were not predicted when the current legislation was drafted, as well as the developments that are under way but have not been as anticipated. Egg freezing and its limit needs to be addressed. The noble Baroness, Lady Manzoor, was on the receiving end of a Question on this matter—in July, I think—when the noble Baroness, Lady Deech, raised it. I raise the issue again with the Minister: if the evidence is there that women’s eggs can be preserved for over 10 years without becoming damaged, it seems to me that there is no valid reason for this shortness of time. Otherwise, it can mean that women who have had cancer and recovered do not have enough time, because their eggs are not preserved. We know that this sort of dreadful thing happens.
It is also time that the Government look at the regulation of private clinics. We know that it can be very expensive for those who wish to go down that route. Private clinics can charge very much more than the average £3,000 to £5,000. There are records of patients paying over £20,000 for treatment, and these clinics can sometimes add on treatments that lack medical evidence as to whether they are really needed. My noble friend Lord Winston has raised this in the House and I am raising it again, as there needs to be a review of the regulation of private clinics. The Government also need to look at overprescription. The issues raised by women taking immunosuppressant drugs should be properly addressed. There was, again, a Question in the House not so long ago on whether the Government would review this issue.
Finally, there is also the issue of accessibility to IVF treatment. I should have declared an interest at the beginning: I am a lay member of a clinical commissioning group. The issue of the lack of availability of three cycles of IVF, in line with the NICE guidelines—or of any cycles at all—needs to be addressed. It is an example of a postcode lottery in the UK and it means that, if you live in the wrong place, either you have to be rich enough to afford IVF treatment at a clinic, as the noble Baroness, Lady Boycott, said, or the prospect of having a child disappears from your life with all the tragedy that that involves.
So, we say happy birthday to Louise Joy Brown and happy birthday to our embryology and IVF treatment system in the UK. It of course needs to be reviewed, but I think that the last 40 years shows that we are reaching middle age in pretty good shape.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Deech, on securing this important debate. I join my Front-Bench colleagues in commending the quality of it; we are incredibly lucky both in this House and in this country to have such experts who are able to give such informed opinions on these topics. It seems to me entirely right that we should have the opportunity to acknowledge the ground-breaking work of Sir Robert Edwards, Dr Patrick Steptoe and, as the noble Baroness, Lady Barker, reminded us, Jean Purdy—who, it must be said, Bob Edwards always credited as the third IVF pioneer. It is right to acknowledge the development of the technique which has of course brought about the birth of around 8 million babies worldwide who would not have otherwise been born, as well as the signal role that the UK played as a world leader in providing not just the scientific technology but the right regulatory framework.
The noble Baroness, Lady Jolly, reminded us quite rightly that, even though IVF is so commonplace now, it is easy to forget the opposition that Edwards, Steptoe and Purdy faced when they were first doing their work. It is a credit to their determination and compassion that they were not deterred. It is true to say that they have transformed our understanding of human reproduction and what that means for how to have a family for ever. In doing so, they have brought happiness to millions—those who would not have been born and who are, presumably, happy to have been born, and their parents.
The noble Baronesses, Lady Barker and Lady Boycott, talked about the benefits for women of being able to make a choice about conception. I am grateful to the noble Baroness, Lady Boycott, for also talking about men and fathers. When my wife and I tried to start a family and were finding it difficult, it was something that we began to contemplate. We did not have to go down that route but at least we knew that it was there if it had been needed.
As the noble Baroness, Lady Barker, reminded us, it all started with the birthday girl, Louise Brown, born in Oldham in 1978. In a sense, it brought something that was out of science fiction into reality. A baby, conceived in a laboratory—in a test tube, to use the phrase—was then placed in the womb, leading to the birth of a healthy child. It had been unimaginable just a few years before. Not only did it open up the possibility of those kinds of births, but it also raised all the difficult questions with which we have been grappling since, to make sure that such a powerful scientific tool should not be open to misuse. That is why the Government of the day established the Committee of Inquiry into Human Fertilisation and Embryology—to make recommendations on the policies and safeguards that could be put in place to ensure that treatment services were provided in a safe and ethical manner and, as we have been reminded, to guide research using embryos. I shall return to this.
As has been discussed, the recommendations of the 1984 report formed the basis of the Human Fertilisation and Embryology Act 1990, the first legislation of its type in the world. I pay tribute to my noble and learned friend Lord Mackay of Clashfern, as other noble Lords have done, for the role he played in developing this excellent piece of legislation. I also pay tribute to the roles played by the Lord Speaker and by my noble friend Lady Bottomley. They remind us, as does the noble and right reverend Lord, Lord Harries, that it was a highly complex argument. It was happily debated in this House in the best of spirits and with the best of intentions. Difficult, challenging and, indeed, theological reasons were given for some of the policy decisions that ended up forming the 1990 Act. It is right that we recognise the role played by noble Lords and, of course, the work of Lady Warnock and the members of her committee. It is a testament to their sound judgment that so many of the principles they established still hold good. I also join the noble Baroness, Lady Thornton, in paying tribute to the HFEA for the rigour and leadership it has shown over the years and to acknowledge the leadership of the noble Baroness, Lady Deech, as well as the role of the noble and right reverend Lord, Lord Harries, in that institution.
Fertility treatment and IVF go to the heart of the deep desire—and, in some cases, psychological need—of people to have children of their own. As has been highlighted by noble Lords in this debate, we are faced today with questions different from those encountered by Edwards, Steptoe and Purdy, or even by the Warnock committee. I turn to these now.
The noble Baronesses, Lady Deech and Lady Thornton, talked about the 10-year statutory storage limit for non-medical egg freezing and their belief that it should be increased. They will be aware of the recent publication by the HFEA about egg freezing. It is important that we bring the latest available information to the public attention, so that we can have a better-informed debate as we go forward. The report suggests that women should be cautious in approaching egg freezing and keep in mind that current evidence shows that, overall, there is only a one in five chance of getting pregnant using frozen eggs. It is not an effective insurance policy for future family building, although sometimes it is absolutely necessary in order to build a family.
The noble Baronesses, Lady Deech and Lady Thornton, want to see that extension. I understand the reasons for it. There are exemptions for those who have lost their ability to be fertile for medical reasons. The question is whether and how there should be an extension to the 10-year limit for social use. My colleague the Minister for Mental Health and Inequalities has written to the noble Baroness, Lady Deech, in some detail as to why it would take primary legislation to make a change in the law. This is not least because, at the point at which they were passed, Parliament did not expect the regulations to be used to extend storage for social reasons. This is not a judgment on the benefits, merits or otherwise of the argument, but it is important to reflect that any extension to time limits for egg storage would be a significant social policy change, with far-reaching impacts on decisions that women make in starting families. It would require a broader public debate before any change could be contemplated. In some ways, this has been accelerated and amplified by our discussions today.
Several noble Lords mentioned the current postcode lottery in the provision of NHS-funded IVF treatment services, and I will deal with that head-on. We have been clear with CCGs that they need to take account of the NICE fertility guideline and to implement its recommendations in full, and I want to be clear that it is completely unacceptable where CCGs have stopped commissioning IVF altogether. My honourable friend the Minister for Mental Health and Inequalities will meet the HFEA and NHS England shortly to discuss how best to promote this guideline to NHS commissioners and support better-informed commissioning of fertility services, in particular to eradicate the non-provision of services such as these. I reassure the noble Baroness, Lady Jolly, that consultations are required by CCGs before any reduction of services such as this significant one.
Allied to this issue is one raised by the noble Baronesses, Lady Deech and Lady Thornton, about private treatment costs. It is quite right that the HFEA does not regulate cost, and IVF is indeed expensive. However, it is clear in the HFEA’s code of practice that before treatment, storage or both are offered, the clinic gives the patient a personalised and costed treatment plan detailing the main evidence of the proposed treatment, the cost of that treatment and any possible changes to the plan, together with those costs. In that way they have the opportunity to understand at the outset the costs that they are likely to incur and—to address a point mentioned by the noble Baroness, Lady Deech—that they have accurate information about the effectiveness of any treatments, particularly add-ons, that they are offered.
The noble Baronesses, Lady Barker and Lady Boycott, raised the important issue of surrogacy, and the impact on its availability by the 1990 Act; the noble Baroness, Lady Barker, reminded us of the particular impact it has had on single parents. I am pleased to say that we have been making progress in this area, and I am grateful to them for recognising that. A revised remedial order enabling a sole applicant to apply for a parental order was laid in Parliament before the Summer Recess. It addressed potential inequalities that were identified by the Joint Committee on Human Rights, which reviewed an earlier draft of the order, as the noble Baroness, Lady Barker, pointed out. The revised order also ensures that a single applicant who is biologically related to the child will always be able to apply for a parental order regardless of their own relationship status.
The Government are preparing the regulations needed to ensure that the changes made by the remedial order can work effectively. We hope to lay the regulations this autumn to enable debates in both Houses this year, and our aim is to ensure that new laws are in place by the end of 2018. Furthermore, we look forward to the results of the Law Commission’s review of the law surrounding surrogacy in general, and are working with all partners and stakeholders to improve the ability of people to pursue this route to parenthood if it is necessary and desired. However, in doing so it is necessary to recognise and address head-on some of the fraught ethical issues that we need to negotiate in doing so, as the noble Baroness, Lady Boycott, pointed out.
Many noble Lords brought the issue of research to our attention. It is right that the 1990 Act, which we are discussing, also covers embryo research. It is also right that we have fantastic new research opportunities offered by gene editing. Reference has been made to CRISPR/Cas9 and other gene-editing possibilities, which give us the opportunity to prevent serious inheritable diseases. What then does that mean at this stage for the 14-day rule on the use of embryos?
I am sure that noble Lords will be aware that the HFEA licensed the Francis Crick Institute to use this technique of gene editing in a research project in 2016. Therefore in that sense, although the 14-day limit is very much intact, the progress in research on gene editing of embryos below that time limit has started. We have also looked at the Nuffield Council on Bioethics report, which was referenced by the noble Earl, Lord Selborne, and other noble Lords, and we are giving these important issues careful consideration as we decide how to move ahead. There is great potential in these techniques, but these are early days, and the limits of the regulatory framework have not yet been reached. For that reason, there are no current plans to review the 14-day limit for embryo research. Indeed, I think I am right in saying that the noble Baroness, Lady Deech, did not herself feel there was support for such a change at this stage. I reference the important point made by the noble and right reverend Lord, Lord Harries, and the noble Earl, Lord Selborne: if we move ahead in considering these issues, we need both a broad and deep conversation about the right way forward.
Progress has been made on the issue of mitochondrial donation, as many noble Lords have pointed out. Parliament gave clear support for the introduction of regulations for mitochondrial donation to prevent the inheritability of serious mitochondrial disease. The HFEA is currently assessing these cases on a case-by-case basis, giving careful consideration as it does so. We believe this is the right way forward and it perhaps sets the template for how we ought to move ahead in future.
In the 40 years since Louise Brown’s birth, much has changed. Our knowledge of this unique area of science and medicine has developed and the success rates of IVF have improved. In that time it has become possible, as the noble and right reverend Lord, Lord Harries, said, to use the IVF technique to prevent children from being born with serious and sometimes life-ending medical conditions and to prevent the transmission of serious mitochondrial disorders from mother to child. It will be fascinating to see where the use of IVF goes in the next 40 years.
I think we all agree that the UK can take pride in the achievements of Edwards, Steptoe, Purdy and all those who have worked in both clinical and research settings. We continue to be world leaders in the field of assisted reproduction and embryology and owe huge credit to the staff of so many clinics, who have enhanced the lives of so many families. We can take equal pride in the fact that this country has enabled such ground-breaking techniques to be used in clinical practice, within a regulatory framework, administered by the internationally respected HFEA, to ensure safe, effective and ethical treatment for patients. This framework has been a blueprint for the world and will continue to be so. This House has an invaluable role to play in challenging and providing leadership and ideas for how we ought to move ahead.
Baroness Deech
My Lords, many years ago, before I was in this House, I was summoned to give evidence to a Select Committee of the Commons about the HFEA. I had hardly sat down when the chairman looked at me and said, “Who do you think you are, playing God?” I did not miss a beat. I said, “I am playing God because that power was given to me by Parliament”. I mean, who else could give me such a power? It goes to show how important, and how efficient, our law-making has been in this area, largely because of the expertise that was evident in this House then and is still evident today. This topic shows just how valuable the membership of the House is—it is full of ethicists, doctors, obstetricians and gynaecologists, theologians, and other people who know how these things work.
I thank the noble and learned Lord, Lord Mackay, for his contribution; I also thank the noble Baroness, Lady Thornton, the noble and right reverend Lord, Lord Harries, and many others who, over the years, have pushed forward the legislation or helped to improve it, or have served on the HFEA. When we have debates in the future, as we must do, about surrogacy and genome editing, I expect that same expertise to show itself. It is a very good example to the outside world of why we have a second House and why many of our Members are appointed on the grounds of their expertise.
Guiltily and belatedly, I pay tribute to Jean Purdy, to whom I should have given credit. There is a certain element, in science generally but also in this field, of rather overlooking the contribution of women. My experience when visiting clinics and seeing patients was that IVF was very much something that powerful and confident men did to grateful, subservient women. I heard one in vitro fertilisation doctor say, “I have made a thousand women pregnant”. I wondered quite what was going through his mind and how badly he took it when it did not work.
There is another unsung female hero, if that is the right word: Mrs Brown. We appreciate the birth of Louise Brown, but let us imagine and reflect on the courage and fear that must have gripped Mrs Brown as she waited to give birth to the first-ever IVF baby.
Baroness Barker
We have talked today about how Louise Brown was the first IVF baby, but we have not mentioned the most wonderful thing of all, which is that loads of people in Oldham, some of whom I know, were invited to take part in this world-leading research programme. They took part not because they had money but because they lived in a United Kingdom that had a National Health Service. So it is absolutely right to mention Mrs Brown, but a whole load of men and women in Oldham, whose names will never be known, played a really important part in all of this.
Baroness Deech
I am very glad to hear that intervention from the noble Baroness. I have often thought about Mrs Brown and it is very sobering to realise how many other people contributed to the eventual success.
I look forward to this House debating changes to surrogacy reform, which I hope will come soon. I hope also that we will debate genome editing and how to regulate it in the future with the expertise that we have.
There is just one issue that I remain unhappy with. I think that there must be a missing letter. The noble Lord, Lord O’Shaughnessy, referred to a letter to me from, I think, Maria Miller. I wrote to the noble Lord in mid-July but I have no recollection at all of receiving a response.
Lord O'Shaughnessy
I am sorry to interrupt the noble Baroness. It was from my colleague Jackie Doyle-Price, the Minister. If it has not arrived, I absolutely apologise, and I will make sure that it gets to the noble Baroness as soon as humanly possible.
Baroness Deech
I contacted the noble Lord this morning to say that I had not received a response. I can see that something went wrong somewhere and I do not quite know what the response will say. I listened to the noble Lord but I think that relying on medical exemptions to the 10-year limit is insufficient. Many—indeed, an increasing number—of the women who want egg freezing do so not for medical reasons but for pressing social reasons, with which we should have sympathy.
Regardless of the science, there is no reason why, if you can keep your eggs for 10 years, you should not be able to keep them for 20 if that is suitable—and it can be achieved simply by a change in regulation. The pressures on women with the biological clock ticking and the cost of freezing are such that it is a pity to say to them, “Don’t wait for Mr Right. Time is ticking. Mr Average will have to do, or Mr He-Will-Do will have to do”. As has been said, it would not involve many women—but the fact that there are not many is no excuse for not changing the law. So I hope that the letter, which I have not yet seen, is sympathetic. I will continue to raise in this Chamber the issue of egg freezing until we get a change, because it means a great deal to many women and it will have a profound psychological effect on the way they lead their lives.
I conclude by thanking all noble Lords who have participated in this very meaningful anniversary debate, and I am even more grateful to those who have played such an important part in achieving this great British success over the last 40 years.
Genocide and Crimes Against Humanity
(5 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text
Lord Alton of Liverpool
To ask Her Majesty’s Government what steps they are taking to change the way formal international declarations of genocide or crimes against humanity are made and to further the expeditious prosecution of those responsible.
Lord Alton of Liverpool (CB)
My Lords, I begin by thanking all noble Lords taking part in this short debate on the way in which formal international declarations of genocide and crimes against humanity are made, and on how we might give greater effect to our obligations as a signatory to the 1948 genocide convention and our duty to protect, to prosecute and to punish genocide—the crime above all crimes. I also thank the Library for its helpful briefing note and Ewelina Ochab, a volunteer, for organising an excellent seminar that I chaired in your Lordships’ House and providing further background material for today’s debate.
After a visit in 2004 to the genocide sites of Rwanda, I visited Darfur, where more than 2 million people have been displaced and between 200,000 and 300,000 people killed. Since 22 May 2003 I have raised some 204 questions or interventions in your Lordships’ House about Darfur. Only yesterday, I was told by a former senior British official in Sudan that 2 million people remain displaced in Darfur, with 300,000 refugees living in desperate conditions across the border in Chad. Meanwhile, although indicted for genocide and crimes against humanity, Field Marshal Omar al-Bashir travels with impunity and seeks trade deals with the United Kingdom.
In a recent debate I highlighted the same pattern of events now unfolding in northern Nigeria, where the former head of the country’s army recently described atrocities by Boko Haram and Fulani militias as a genocide, with 1.8 million displaced persons, 5,000 widows, 15,000 orphans, and more than 200 desecrated churches and chapels. This is simply a repeat of what has happened to the Yazidis and Christians in northern Iraq—whose plight I have raised through questions and interventions on 65 occasions since 26 November 2008, when I specifically drew attention to,
“the Chaldeans, the Syriacs, the Yazidis and other minorities, whose lives are endangered on the Nineveh plains”.—[Official Report, 26/11/08; col. 1439.]
By 21 April 2016, following mass executions at Mount Sinjar in 2014, I was drawing attention to,
“accounts of crucifixions, beheadings, systematic rape and mass graves”.—[Official Report, 21/4/16; col. 765.]
Meanwhile, over the 12 years since I first raised the plight of the Rohingya Muslims in this House on 17 July 2006—and in 58 interventions of one kind or another since then—I have watched as the classic contours of genocide have unfolded. First, there is discrimination, scapegoating and targeting of a group because of its ethnicity, religion or some form of difference; then there is ostracism; then there is persecution; then come crimes against humanity; and then comes outright genocide. We have seen it again and again, from Armenia to the Holocaust, from Bosnia to Cambodia, from Burma to Darfur, with “never again” happening endlessly, all over again.
Against that backdrop it is impossible for me to understand why Governments utterly fail to make formal declarations of genocide and to take appropriate action. On 27 August 2018, the UN Independent International Fact-Finding Mission on Myanmar published its report stating that the Burmese military has committed genocide in Rakhine state, along with crimes against humanity and war crimes in Rakhine, Kachin and Shan states. The report indicated that the estimate of 10,000 people being killed in Rakhine state is conservative; more than 700,000 were forcibly displaced to Bangladesh, and the situation is nowhere near over.
Earlier today, a letter by Rushanara Ali MP, supported by more than 160 British parliamentarians from both our Houses, was sent to the Prime Minister calling upon Her Majesty’s Government to lead on seeking a referral of the Burmese military to the International Criminal Court. The letter repeated the concerns identified by the UN fact-finding mission that the new inquiry established by the Burmese Government will not be able to deliver on the promises to provide independent and transparent processes, and:
“Expecting justice and truth from any Myanmar domestic process is simply naive”.
I look forward to hearing from the Minister how the Government intend to respond to that letter.
The Daesh atrocities in Syria and Iraq and the Burmese military’s atrocities in Burma are two examples of genocide perpetrated within the last four years. None the less, Her Majesty’s Government’s response to the question of genocide determination over many years has been the same: that it is simply for the international judicial systems—which are either inadequate, non-existent or compromised by Security Council vetos—to make the determination and not for politicians, regardless of the evidence, to support such a determination.
It has to be emphasised that, as it stands, Her Majesty’s Government do not have any formal mechanism that allows for the consideration and recognition of mass atrocities that meet the threshold of genocide, as defined in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide—the genocide convention. As a result, Her Majesty’s Government are at a disadvantage when trying to fulfil their duties to protect, prevent and punish. The lack of a formal mechanism, whether grounded in law or policy, was recently criticised by the Foreign Affairs Select Committee in its December 2017 report on the situation in Rakhine. The report stated:
“We are seriously concerned to find that the FCO has not undertaken its own analysis of the situation, nor committed its own expert team to gather evidence. The Minister said that its effort was focused on addressing the humanitarian situation, but it is unclear why humanitarian support and legal analysis cannot go hand-in-hand”.
Her Majesty’s Government will argue that the genocide determination is not crucial but that actions to address mass atrocities are. Actions and words are strongly connected. Gregory H Stanton, research professor in genocide studies and prevention at George Mason University, conducted a study on the perception and effects of determining genocidal atrocities using the words “ethnic cleansing” or “genocide”. I have shared the details of Professor Stanton’s work with the Minister, the noble Lord, Lord Collins, and others. Significantly, the results of the studies revealed that:
“Choice of the term to be used is determined by willingness to take action to stop the killing. When the terms ‘ethnic cleansing’ or ‘crimes against humanity’ were used, it indicated unwillingness to take forceful action to stop the crimes”.
So we hesitate to name genocide for what it is.
Her Majesty’s Government’s reliance on international judicial systems is flawed because parties to the genocide convention are the duty bearers under the genocide convention, not the international judicial systems. Parties to the genocide convention, such as the United Kingdom, must act to ensure that the determination is made by a competent body in accordance with the law and policy in the state and decisive steps follow that fulfil the state’s obligations under the genocide convention to prevent and punish. Furthermore, in the case of the Daesh atrocities in Syria and Iraq and the Burmese military atrocities in Burma, there are no international judicial systems that would have the mandate to make the determination of genocide. Establishing such mechanisms would take years and even more years before a formal determination of genocide is actually made.
Other states have been less shy to make the determination of genocide, whether in relation to historical mass atrocities or to current and ongoing atrocities. For example, the recent Daesh genocide against religious minorities in Syria and Iraq has been formally recognised by a few Governments and several parliaments, including our own House of Commons, and major international institutions. None the less, the Government refuse to make this recognition, relying on their long-standing policy. Canada and the Netherlands previously took the same position as us, using the same argument that it was not for politicians to make such a determination. However, both countries have now reversed their position in relation to the Daesh genocide.
I hope that the Minister will take the trouble to look at what has happened in those two jurisdictions and that she will also carefully study the Genocide Determination Bill that I have introduced into your Lordships’ House. It seeks to address the lack of a formal mechanism to make the determination of genocide. It would invest the High Court of England and Wales—not politicians—with the power to make a preliminary finding on cases of alleged genocide and subsequently refer such findings to the International Criminal Court or a special tribunal, which would not necessarily be dependent on the Security Council. The proposal responds to the argument of the UK Government that the determination of genocide should be made by a competent court—the competent court here is the High Court, not an international court—and recognises that under the genocide convention it is the duty of the state, not international institutions, to act.
As the 70th anniversary of the genocide convention approaches, it is time for the Government to reconsider their long-standing policy on genocide determination and look at new approaches to ensure that they are fully equipped to fulfil their obligations under the convention to prevent and punish the crime of genocide and fill this gaping lacuna. I look forward to the debate and I thank all those who are participating in it.
Baroness Nicholson of Winterbourne (Con)
My Lords, it is a great honour to follow the noble Lord, Lord Alton. I thank him on behalf of everyone, globally, internationally and in the United Kingdom, for his lifelong devotion to those who are unable to worship as they wish and who suffer death for attempting to maintain their family and their community faith. His name, reputation and his activities on their behalf are known absolutely everywhere. I thank him from the bottom of my heart because he is a very great Member of your Lordships’ House.
I have been working more modestly on the issue of genocide against the Yazidis. I first raised this in the House in the autumn of 2014 following the devastating assaults and occupations by ISIL in northern Iraq, where there were unspeakable scenes of torture and death, all supposedly validated by Muslim writings. Mr al-Baghdadi, the leader of this awfulness, claimed in his instruction letter to his assigned rapists that it was the duty of every Muslim to wipe out the Yazidis since they were devil worshippers. His written word—his fatwa—was followed with increasing sadism: rapes and crucifixions, drownings with cameras recording the struggles of bound victims repeated several times with the captives being re-drowned to get stronger and more salacious pictures for the web. It was death pornography using blameless people.
I brought the first rescued rape victims here to give evidence to the Select Committee on PSVI, which I had the honour to chair. The evidence was so terrible that our clerk bowdlerised it at the last moment. It was a clear example of our classic and all too squeamish refusal to face up to the ghastly reality of genocide and its Hieronymus Bosch-like visions of the fourth level of hell. We defy it to be true, but true it is. Unless we, the lucky ones living in peace, accept its foul reality, genocide after genocide and massacre after massacre will continue to stalk our world.
I chair AMAR, an international charitable foundation. On finding desperate victims fleeing from Mosul and dying on the roads to Najaf and in Baghdad, the medical director acted immediately and the staff have not stopped. They are all Iraqi and almost all Muslim—not Yazidi at all; they did not know about them. They stepped in and gave all the help they possibly could to a high-level WHO standard. Doctors, pharmacists, teachers and women health volunteers all rushed to help victims countrywide.
Our London team approached interested individuals, groups, businesses and industry for urgent funding, all of whom responded magnificently. AMAR has continued to serve 350,000 encamped internally displaced people, with the figure rising from 12 June 2014 until today. They are all heroes, especially Dr Ali Nasir Munthanna, Dr Ammar and Rewaq. Very special friends came forward immediately and I shall name them: the Church of the Latter Day Saints charities, Jeff Holland, Sharon Eubank and many other friends and colleagues. Their insight has been superb and their compassion boundless. Right reverend Prelates on the Bishops’ Bench and other colleagues in this House understood immediately the real point at issue: religious persecution demands an understanding of the faith under cruel assault and an acceptance of it as a decent way to live and worship despite—or, dare I suggest, because of—its difference from other faiths that are better tolerated.
Canon Edmund Newell of Cumberland Lodge helped to lead discussions with a number of different faiths. He produced a paper and resolved the theological constraints of the Yazidi. It was a major multifaith achievement to describe the Yazidi faith and has been accepted by the Yazidi Prince and the Spiritual Council as the first and only accurate description of their faith. But still today Yazidis are unsafe in their own country and much more needs to be done. I raise the point particularly in the context of this debate. The Right Reverend Bishop Alastair Redfern has pointed out that the injustice of categorising the Yazidi people and others like them as refugees is that the real issues are obscured, leading to less than appropriate strategies of response. How right he is. Their faith is the key.
We raised the question of whether, for example, the Yazidi faith is a reasonable one. Does it promulgate horror, hatred and extension of “the other”? Some globally accepted faiths do just that. It is not a happy thought at all. But no, the Yazidi faith is blameless of calls for extermination or harassment of the supporters of any other faith. Its daily prayers are mirrored, or we mirror them—I speak as an Anglican—in our nine offices of the day. Like the Jews—our UK laws and customs are Judeo-Christian-based—Yazidis are hard workers and decent people who produce high-level professionals and follow the rule of law, which should enable their faith to be accepted into the world’s faiths after it was discarded by the Ottoman Empire. In our multifaith world, we must take them in. The Westminster declaration that we pulled together calls for signatures to enable that to happen.
The second question, therefore, is why their future and the futures of people like them are so uncertain. After the genocide of the Holocaust, the generation of my grandparents and parents declared, “Never again”—but that has not been the case at all. As the co-author with Dr Neil Quilliam of a paper coming out next week, I feel that genocide—and its ugly sister, massacres on religious grounds—has a horrible similarity in consistent occurrence and sameness of methods. We have carefully pulled apart religious persecutions carried out over 500 years by most major faiths. This is the key: we have to accept that religious persecution is at the heart of most of these genocides.
I ask noble Lords to recognise the Yazidi faith and work to help other genocide and massacre victims to identify their identity. Religion is liable to be at the heart of that identity. If we do not do that and secular societies everywhere continue to sideline faith, we cannot save the victims or survivors—and their families—of religious discrimination.
I will end with a quotation from Prince Tahsin, the head of the Yazidi people. He asked me to tell your Lordships that he wants to take this opportunity to thank the British Government and the AMAR Foundation for the great humanitarian work that the British do. He said:
“We know that nobody can change the fact that four years ago, genocide of the Yazidi people made my community lose their faith in humanity. Thousands of members of our religion were murdered. Many endured the horror of being burned alive and 3,000 young women and children are still missing. The famous Mount Sinjar is still not safe. Approximately 200,000 Yazidi people are still in camps without any idea of what’s going to happen to them in the next few years. On this stage, we would like to say that we need international help and, more importantly, we need to rebuild our lives. Please deliver this message to the entire world on our behalf. Thank you. Prince Tahsin”.
Baroness D’Souza (CB)
My Lords, as we heard in my noble friend’s eloquent introduction, genocide has long been determined a crime. The genocide convention was adopted in 1948, came into effect in 1951 and was ratified by the UK in 1970. The crucial and unassailable core of that convention was and is that genocide—whether committed in times of peace or war—is always punishable and that all states signatory to the convention have an obligation to prevent and prosecute genocide. This, of course, was in response to the unspeakable attempts by the Nazi regime to rid Europe of its Jewish populations.
The UK has recognised the need to give effect to the genocide convention: first, by enacting legislation to implement the convention in 1969, and subsequently by incorporating the crime of genocide into the International Criminal Court Act 2001. It is clear that UK authorities are obliged to investigate genocide with a view to ensuring that the crime is prosecuted and punished, whether acts are committed in the UK or abroad.
Since 1948, the convention has undergone many interpretations, legal provisos and reforms for implementation. It is estimated that between 1956 and 2016, there have been 43 genocides resulting in the death of some 50 million people, an equal number of whom have been displaced. The crime of genocide is irrespective of the context in which it occurs: peace, war, internal strife or international armed conflict. The indicators of impending genocide have also been documented, thereby allowing, in theory at least, action to prevent ensuing mass killings. These indicators include: repeated allusions to “us” and “them”; symbols of hatred being forced on pariah groups, such as the yellow star in Poland and its ghettos; pariah groups being defined as less than human—for instance, Tutsis being called “cockroaches” or “vermin” by Hutus in Rwanda prior to the 1994 genocide; trained and armed specialist armies or militia groups; victims being identified and separated as distinct groups, such as the Muslim Rohingya in Myanmar; and, finally, an outright denial of any atrocities having been committed. These are warning signals and inevitably result in massacres.
So what precisely are the responsibilities of member states party to the convention when these warning signs are evident? As I said, all signatories are required to prevent and punish genocide. Genocide is such a heinous crime that its prevention and prosecution qualifies as customary international law. Furthermore, since 2002, the International Criminal Court in The Hague can exercise jurisdiction if national courts are unwilling or unable to investigate or prosecute the offence, but it leaves the primary responsibility to investigate and prosecute alleged criminals to individual states. The UK has unambiguous jurisdiction to prosecute UK and any other nationals and residents for a range of international crimes, including genocide, war crimes and crimes against humanity such as hostage-taking and torture—wherever they are committed within the scope of universal jurisdiction. This is where we must now look at the actions of the UK Government in fulfilling their obligations in today’s world.
The Private Member’s Bill of the noble Lord, Lord Alton, seeks to facilitate individuals or groups applying to the High Court for a preliminary determination that genocide has taken place. If this is determined, the UK Government—that is, the Foreign Secretary—are then obliged to refer the matter to the International Criminal Court or the UN Security Council, or both. This then would be the trigger mechanism for further international action, which is to be welcomed. However, the UK Government’s position is that it is for the international judiciary to determine whether or not genocide is likely to take or has taken place. I assume the International Criminal Court and/or the International Court of Justice are what is meant by international judiciary.
It is worth remembering that the UK already has legislation: the Genocide Act 1969, which has now been taken over by the wider International Criminal Court Act 2001, enables the UK to investigate and prosecute genocide before the UK courts. My concern is that the Government do not attempt to evade their obligations by invoking the authority of the international judiciary—they already have active obligations. An appeal to the High Court would be time-consuming and may not even succeed if, legally speaking, the evidence put before the court is not sufficient to make a determination of genocide. What is most important is that the competent UK authorities investigate all cases of genocide which come before them, are sufficiently resourced to carry out this work and do not, under any circumstances, allow the UK to become a safe haven for the perpetrators of genocide.
The UK Government should also lend their assistance to the International Criminal Court when requests are made for information, transfers or other types of support. Equally, the Government should support, foster and encourage international efforts to secure accountability for genocide through Security Council referrals to the ICC, and related actions to encourage states to surrender suspects to the ICC in response to arrest warrants.
In conclusion, in recent times the UN has put fact-finding missions in place to assess whether genocide has occurred or will occur. The findings of these missions are then used to support action by the UN Security Council, including referrals to the International Criminal Court or some other special tribunal. This is an important process to support and may be a more direct mechanism for action than going through the UK High Court. The major block is the lack of agreement to refer by the permanent five, which is always a matter of politics. Reform of the Security Council—for example, binding its members to vote rather than abstain or vote against—if this were to come about, would be a far more powerful option.
While welcoming any efforts to persuade Governments to act upon their moral and legal obligations, at the same time I would be cautious of shifting responsibility down to a High Court to make a determination that genocide has occurred, with no guarantee that the Government would take immediate notice and action.
Baroness Flather (CB)
My Lords, I am grateful to the noble Lord, Lord Alton, for giving me an opportunity to speak about an issue that bothers me hugely. The genocide of the Armenians in Turkey happened some time ago in 1914. Everybody’s attention was focused on the war in Europe. Nobody’s attention was focused on the Armenians in Turkey, who had lived there for generations. It was not like they had just arrived there; they were part and parcel of the community.
What is so sad is that a number of Governments have recognised the genocide but our Government have not. It was horrendous. I am sure that your Lordships know about it and would agree that it was pretty appalling. The younger men who could have done anything were mostly killed and the older men, women and children were pushed into the desert where most of them perished. If that is not genocide I do not know what amounts to it.
We have to recognise the huge amount of contemporary evidence. It is not like we can say, “Oh, we didn’t know what was happening, we don’t have any evidence”. Every newspaper around the world had headlines four inches high about the genocide happening in Turkey. There are photographs of doctors being hanged, some of whom were Turkish and had been seen to try to help the Armenians. It was an appalling situation. Women, children and older people were pushed into the desert and perished because they were there. That is a very horrible part of that genocide. I do not want us to forget that.
I have been to Armenia three times. I have looked at its memorial to the genocide and all the photographs and newspaper headlines. They were not made up. They are real newspapers with real headlines. We in this country refuse to recognise it. To me that is a matter of great shame. We do not want to upset Turkey. Why? It is all right: it can do whatever it likes, but we have to be honest to ourselves.
Baroness Flather
Thank you. If something like that was done, which it was, we should not put it aside and say, “No, we cannot do that”. We ought to recognise that genocide. The first time the term “genocide” was used was in that connection. It was the first time that a genocide in the traditional sense—the sense in which we use it now—happened but we do not recognise it in this country. Maybe if your Lordships make the effort we might get it recognised in the UK. It is not right for this country, which stands by being at least somewhat moral, to let it go.
The second thing I want to mention is something that the noble Lord, Lord Alton, has quite rightly spoken about: the Rohingya issue. However, I wish he had said something about Aung San Suu Kyi as well. I have never valued her. I have been to Burma and seen what went on there. I do not think that she was quite as great a person as everybody made her out to be. If she had been she would not be saying that the Muslims attacked the military. How can the Muslims, who have nothing, attack the Burmese military, which is probably the most properly funded military in that part of the world? She has said recently, as I am sure your Lordships have read, that it is up to the Bangladeshis when the Rohingya go back. What are they going back to? All their homes have been not just emptied but razed to the ground. There is nothing there; there is nothing where they came from. Aung San Suu Kyi says that it is up to Bangladesh when they go back, but it is nothing to do with Bangladesh. It is do with her and Myanmar. In 1995, the generals offered her the opportunity to become Prime Minister. At that time, she refused, saying that she would get no power. Nobody gives power to anybody. Those who have the power hang on to it, and that is what will happen in Myanmar as well. Let us not think that anything will get better any time soon.
Let us do what the noble Lord, Lord Alton, said and make an effort to see that those who commit such atrocities are not forgotten and that, in whatever way we can, we try to get to them.
Lord Dholakia (LD)
My Lords, I join others in thanking the noble Lord, Lord Alton, for this important debate. It is as delightful as always to see him speak on such humanitarian issues.
For some time now, some of us have been observing the UK Government’s response to mass atrocities amounting to genocide or crimes against humanity, in my case as a member of several all-party parliamentary groups focused respectively on, for example, the atrocities in Sri Lanka, North Korea, Yemen and Syria, as well as engaging in debates in this House. I have always been highly concerned by the response of the UK Government—quite rightly referred to by the noble Baroness, Lady D’Souza—that it is not for politicians to make the determination of genocide but for the international judicial bodies. I have never accepted that argument. We have to be careful to ensure that arguments about the decision-making process never override mass genocide of communities in war-torn areas.
Such an argument fails to recognise one fundamental issue: that the obligations under the UN Convention on the Prevention and Punishment of the Crime of Genocide are imposed on states and not on international bodies. States that ratified the convention are under a duty to prevent and punish the crime of genocide. This duty cannot be fulfilled when a state fails to make the determination of genocide and waits until an international judicial body does so. By waiting and not undertaking any actions, the state fails to prevent genocide. Similarly, this delays punishing the perpetrators of the crime.
I recall the UK Government saying that, despite not recognising the Daesh genocide of religious minorities, they have taken steps to stop it with the Global Coalition against Daesh and to ensure prosecutions by way of working with the Iraqi Government on a UN Security Council resolution to establish an investigative team. Those steps are good and certainly welcome. However, this is not the usual response from the UK Government to mass atrocities that may amount to genocide. The UK’s response to the plight of the Rohingya Muslims in Burma, quite rightly identified by my colleague the noble Baroness, Lady Flather, is a good example of the UK’s failure to have an adequate law or policy to deal with such cases.
Similarly, as in the case of Daesh atrocities, the UK Government refused to recognise the atrocities perpetrated by the Burmese military against the Rohingya Muslims in Burma as genocide. They have not done anything to stop the atrocities or to ensure that the perpetrators are brought to justice.
After engaging in a dialogue with the Burmese Government, the UK Government accepted their assurance that they had established an investigative mechanism and would conduct independent and transparent investigations. We expected similar things in Sri Lanka; unfortunately, they did not materialise. This is even though the recent report published by the UN’s Independent International Fact-Finding Mission on Myanmar indicated that:
“Expecting justice and truth from any Myanmar domestic process is simply naive”.
This gives me an opportunity. I do not absolve Aung San Suu Kyi from this situation, as the noble Baroness, Lady Flather, has quite rightly said. We find today that she has vehemently defended the imprisonment of the two Reuters journalists who were given seven-year jail terms after reporting on the massacre of Rohingya Muslims. This is a case condemned by international Governments and the United Nations as a miscarriage of justice and a major regression of freedom of expression in Myanmar. The civilised world stood by Aung San Suu Kyi when she was under house arrest; the least we expect from her is to speak up for the massive number of refugees in Bangladesh. Not having any laws or policies to deal with the question of genocide or follow-up actions cannot be justified. It was not justified when genocide was perpetrated in Pakistan in 1971; it was not justified during the Khmer Rouge genocide in 1975; it was not justified during the Hutu genocide against the Tutsi in 1994; it was not justified during the Bosnian genocide in 1995; and it was not justified during the genocide in Darfur in 2003, or in many other places. Inaction in the face of genocide cannot be justified.
It is shameful that, approaching the 70th anniversary of the UN Convention on the Prevention and Punishment of the Crime of Genocide, the UK Government have not done anything to consider such laws or policies but rely on their unjustifiable long-standing policy of leaving a determination to international judicial systems and acting only where they find the political will to do so. We need a change and we need it now, as we have failed too many times over the years, as we are failing the Rohingya Muslims in Burma right now.
Lord Loomba (CB)
My Lords, I thank the noble Lord, Lord Alton, for securing this debate at a critical time, with the concerns of genocide never more apparent that with what is happening in Myanmar; he has previously raised issues relating to the actions of the Burmese military in Rakhine state. The UN’s recent report on Myanmar states quite categorically that genocide has taken place. The silence of Aung San Suu Kyi, who was so lauded and praised in this very place in 2012 when she spoke to both Houses, is deafening; yet when she spoke in this place she was so full of hope and optimism and called on the international community to assist with Burma’s long road to becoming a fully democratic country where all human rights are respected. Now, with our laws inadequately addressing the problems of genocide, we are letting the people of Myanmar down; we are letting down anyone suffering from human rights abuses if we do not do something to make our international laws stronger and more robust, so that action can be taken to stop these heinous crimes taking place.
Yet this is neither new nor rare; it is an issue that goes to the very heart of my work with widows across the world, and here I declare my interest. I have been working with widows, often survivors of genocide, for many years, especially female survivors who have lost their husbands to genocide. I work to help them rebuild their lives. The situation of widows post genocide is often neglected. The fact that men constitute the majority of causalities of genocide is neglected. The Srebrenica genocide is an example, where more than 7,000 men were killed. Their wives then had to become the head of their household, local leaders and activists, fighting to rebuild their lives.
During genocide, women are often subjected to rape and sexual violence, which is used as a weapon of war. This is something that the UN report outlines in stark detail regarding the horrendous atrocities happening in Myanmar. Women are often sold into slavery, as if they were property, and abused daily. However, even if they escape it does not mean that their despair is over. They often have no place to go or return to. They will also have to live with the memories of genocide for the rest of their lives. The recent case of the Yazidi and Christian women and girls abducted by Daesh is a glaring example. Here again I commend the noble Lord, Lord Alton, for his work on raising the issue of the genocides perpetrated by Daesh against religious minorities in Syria and Iraq.
Through my work, I know very well the challenges faced by survivors of genocide. The scars of the past, the physical injuries and the long way they have to go to rebuild their lives mean that they need protection. They need the opportunities to rebuild their shattered lives but also clear laws or policies, as the noble Lord, Lord Alton, proposes, on genocide determination and follow-up actions. They need states and international institutions to recognise the nature of the atrocities that they were subjected to, and to clearly identify genocide when it occurs. Most importantly, they need to see their perpetrators brought to justice. I would like the Minister to tell us how the UK Government are going to deal with these atrocities.
Lord Hannay of Chiswick (CB)
My Lords, the noble Lord, Lord Alton, is to be congratulated on obtaining this short debate on genocide, that most heinous of collective crimes in the international rulebook—outlawed by a convention some 70 years ago but still all too present in today’s world. On a personal note, I was serving as the British representative on the UN Security Council when the two acts of genocide which disfigured the 1990s, in Rwanda and at Srebrenica, occurred and when the international community was found wanting, unable to do anything to prevent them. I remain deeply ashamed of that failure.
Following those terrible events the world said, as it has said, alas, all too often in the past, “Never again”. In 2005, every member state committed to giving effect to that thought in the norm of the responsibility to protect. If only it had been that easy, but it has not proved so. In recent years we have seen genocidal acts around the world, most blatantly by IS against the Yazidis in Iraq and by the Burmese military against the Rohingya. Nothing effective has been done to prevent those acts or to bring their perpetrators to justice. That is not, I suggest, an acceptable or sustainable state of affairs if we do not want to see our world slipping back into a state of Hobbesian violence.
What can be done? I will suggest four lines of policy to be pursued. First, we really must not give up on the responsibility to protect. It may have given rise to some unexpected and undesirable consequences in Libya but in Kenya, Côte d’Ivoire, South Sudan, the Democratic Republic of the Congo and the Central African Republic, it has saved and is saving many lives. It is not just a recipe for military intervention. Rather, it is a method of deploying everything in the international toolbox—political and economic measures, peacekeeping and peacebuilding—to avoid major breaches of international humanitarian law, including genocide, from ever occurring.
Secondly, I suggest that we must sustain the International Criminal Court in good working order—all the more so in this week when the US National Security Adviser spoke in a most disgraceful manner about the ICC. I hope the Minister will be repudiating those thoughts that he put into the public domain. Where possible, we should try to extend the jurisdiction of the court. Is there really no way of bringing the IS perpetrators of the crimes against the Yazidis to justice? Is there no way over time to do the same for the Burmese military? After all, it took an awfully long time to get General Mladić before a tribunal in The Hague but that is where he is now.
Thirdly, we need to persist, in concert with our French friends and allies on the Security Council, with their initiative to get the permanent members of the council to forgo the use of the veto when there is the risk or actuality of genocide or other gross breaches of humanitarian law. The multiple vetoes by Russia and China of a policy towards Syria are a stain on their records, and we should not accept that as a given for the future.
Fourthly, we should get a bit less namby-pamby about calling out genocide, and here I join the views of others who have suggested that, because that is what we have been all too often in the past. Of course it is correct to say that only a court—the ICC, another international tribunal or national tribunals—can determine definitively whether the crime of genocide has been committed in particular circumstances. However, why can the Government not say that they have seen prima facie evidence that genocide has taken place in a particular set of circumstances? I know that is less far-reaching than the measure that the noble Lord, Lord Alton, is pressing for, but if we were to become a little more forthright about this matter, and to do so in a way that did not pre-empt the determination by the court as the final instance, then we would be starting to put together another building block in the wall of deterrence that needs to be erected against this appalling crime.
I hope the Minister will be able to respond to these four points. We are not going to be able to abolish genocide overnight, but we need to act against it far more effectively than we have done in recent years.
Lord Singh of Wimbledon (CB)
My Lords, I am grateful to the noble Lord, Lord Alton, for calling this important debate and for all his wonderful, tireless work in pursuing human rights.
Every year we commemorate Holocaust Memorial Day and remember the systematic killing of and brutal atrocities against the Jewish community. Every year we remember and say “Never again”, but since the end of the Second World War we have seen many more systematic attempts to eliminate whole communities simply because of a difference of religion or culture. Worldwide revulsion at such inhuman behaviour led to the 1951 UN convention on crimes of genocide, including incitement to group murder.
By any measure, the deliberate mass killing of Sikhs in 1984 meets the necessary criteria, yet no action has been taken against government Ministers seen inciting rampaging mobs. The 30th anniversary of these killings coincided with the announcement of UK government support for an inquiry into the mass killing of Tamils in Sri Lanka. In a debate in this House, I asked for a similar inquiry into the mass killing of Sikhs in India and gave details of the scale of the atrocities: state-controlled All India Radio constantly repeating a message inciting people to kill Sikhs, the use of municipal buses to ferry groups of killers around New Delhi, the beating and burning of male Sikhs and the gang-raping of women and young girls. I concluded by asking Her Majesty’s Government to support the establishment of an international inquiry into the killings. But India is an important UK trading partner, and the curt answer from the Government was that that was a matter for the Indian Government.
Despite the setting up of the International Criminal Court in 2002 to prosecute genocide, offenders continue to escape punishment. Only countries that sign up to the ICC can be prosecuted, and some, such as the United States and India, fearing possible prosecution, simply do not sign up to membership. Other drawbacks are that the ICC cannot investigate crimes committed prior to its establishment, and there is no proper mechanism for pursuing possible genocide committed by militant groups such as Daesh against the Yazidis and other minorities in Syria.
As has been mentioned, Governments are reluctant to raise questions of human rights abuse with important trading partners. We must face reality. Even when ethically untenable, considerations of so-called strategic interest in trade tend to trump abuse of human rights. The only long-term strategic interest for us all is to move to a world free from such recurrent genocides. To do this, we must take responsibility for examining possible genocide away from the conflicting and understandable pulls of government and give it to a wholly independent arbiter, such as the High Court, as suggested by the noble Lord, Lord Alton. I strongly support his wise and far-seeing lead.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I thank my noble friend Lord Alton for all that he has done over the years in this most tragic field, the field of man’s inhumanity to man. I became particularly concerned in this area in 2002, when the ICC was created under the Rome statute and I was privileged to be one of the committee of five charged with responsibility for recommending a UK judge to that court. As it happened, a judge now on the Court of Appeal last year was appointed the chief Investigatory Powers Commissioner under our own recent security and terrorism legislation.
My involvement, so far as I had any in the field of international crime, has generally arisen in the context of asylum claims. They were usually claims of refugee status brought by those actual or threatened victims of such crimes abroad, but occasionally, and altogether more problematic, cases falling under Article 1F(a) of the convention, which excludes from entitlement to refugee status anyone who has committed or is otherwise responsible for one of the crimes against humanity or other such grave international crimes. They can raise difficult points as to the precise nature and extent of an individual asylum seeker’s involvement in a terrorist group—for example, one such case involved a Tamil Tiger—and whether they are properly to be regarded as disqualified from the safe haven to which they would otherwise be entitled.
I mention the problematic nature of those cases in contrast to the comparatively straightforward nature of the core question which underlies today’s debate. It is a comparatively straightforward question whether the string of undoubted atrocities committed by ISIS/Daesh—committed over recent years and continuing today in Syria and Iraq—constitute in law the crime of genocide, a crime of universal jurisdiction. It seems to me all too obvious that these atrocities, so consistently and convincingly described and documented over the years, amount to genocide.
I find it entirely unsurprising that it has been explicitly so characterised by a range of political bodies, including the US House of Representatives and Secretary of State John Kerry, the Parliamentary Assembly of the Council of Europe, the European Parliament and, of course, our own House of Commons. The noble Lord, Lord Hannay, has made the point that the Government are of course right to say—as they have respectfully said and continue to maintain, whenever invited to recognise these atrocities as genocide—that ultimately this is a question for legal rather than political determination and for judges and courts rather than government and parliamentary bodies. But surely, equally obviously, that is so with regard to all criminal offences—for example, murder. Yet one does not find the Government fastidiously abstaining from describing, say, the poisoning of Sergei Skripal and his daughter and the unfortunate woman who later sprayed her wrist with that substance as murder or attempted murder. Plainly, such a description and such a calling out of the offence in no way pre-empts or prejudices any final judicial determination of the issue if, as one hopes—albeit too often vainly hopes—those accused can eventually be brought before an appropriate judicial tribunal for trial.
For my part, and for the life of me, I can see no good reason why our Government should resolutely continue to refuse recognition of these atrocities for what they are, particularly when, as I understand the position, it tends to lead to Catch-22 and to the “circular argument” or “stalemate” referred to by Fiona Bruce during the April 2016 Commons debate—Hansard col. 959—whereby the UK is declining as a state party to the Rome Statute to refer the situation to the ICC prosecutor with a view to initiating an appropriate prosecution in that clearly most appropriate of tribunals.
In short, although I am intrigued by my noble friend Lord Alton’s proposal, I am not yet persuaded of the need for some domestic statute to provide for some judicial declaration in our courts by one of our own judges as a precondition for referral to the ICC. I have time for no more, save perhaps to recommend to any of your Lordships—in this packed House—who have not yet read it Philippe Sands’s compelling and enthralling book East West Street, which deals with the origins of this still all too relevant and prevalent crime.
Lord Thomas of Gresford (LD)
My Lords, I thank the noble Lord, Lord Alton, for introducing this debate and I join the noble Baroness, Lady Nicholson, the noble Lords, Lord Brown and Lord Dholakia, and others, in recognising the passionate, lifelong commitment of the noble Lord, Lord Alton, to humanitarian issues and to human rights. He really is outstanding in this area and has been a champion for very many years.
The Rome statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Under the Rome statute, the International Criminal Court has limitations. There are time limitations, as the noble Lord, Lord Singh, mentioned, and it can investigate and prosecute these four core international crimes only in situations where it finds states are “unable” or “unwilling” to do so themselves, a point made by the noble Baroness, Lady D’Souza.
The jurisdiction of the court is complementary to the jurisdictions of the domestic courts. Of course, in this country we have not had any prosecutions for the crime of genocide. In 2007, I was engaged in the court martial at Bulford arising from the death of Baha Musa. The defendant, an Army corporal, pleaded guilty to the war crime of inhuman treatment. That is the only conviction ever recorded in this country for a war crime, as defined in the Rome statute.
In 2014, the now discredited and struck-off solicitor, Philip Shiner, jointly with a human rights organisation, the European Center for Constitutional and Human Rights, submitted a dossier to the International Criminal Court of alleged war crimes—allegations of beatings, electrocution, mock executions and sexual assault committed, it was alleged, by British forces in Iraq. The complainants also alleged that the United Kingdom was unable or unwilling to bring these cases to court, which would have given jurisdiction to the ICC.
On 4 December 2017, the court’s Office of the Prosecutor, notwithstanding its own investigation into Shiner and his activities, nevertheless announced that it saw a reasonable basis to believe that members of the UK Armed Forces committed war crimes against detainees in Iraq. Prosecutors in The Hague are now engaged in a phase 3 assessment of whether genuine investigations and prosecutions are being conducted in the United Kingdom in respect of the 60 or so cases before them. The fairness of British justice is under international scrutiny at this moment.
Generally, the International Criminal Court has jurisdiction over crimes only if they are committed in the territory of a state party to the Rome statute, or if they are committed by a national of a state party. This has its limitations because, clearly, large jurisdictions such as the United States are not state parties.
The exception to this jurisdictional rule—with which we are particularly concerned today—is that the ICC may have jurisdiction over crimes if its jurisdiction is authorised by the United Nations Security Council: in other words, it can go outside the state parties and deal with crimes committed elsewhere. As the noble Lord, Lord Hannay, pointed out from his own unhappy experiences involving Rwanda and Srebrenica, this is insufficient and unsatisfactory. I agree with him that it is important to try to extend the jurisdiction of the International Criminal Court beyond what happens in the territory of a state party.
At the moment, how do allegations come before the Security Council? Despite being a permanent member, this Government have resisted attempts on a number of occasions to make a declaration that crimes committed by Daesh amount to genocide. As noble Lords have pointed out, this is notwithstanding that declarations to that effect have been made in a resolution of the Parliamentary Assembly of the Council of Europe and by the European Parliament in March and April 2016, in addition to the declaration by the US Secretary of State to which the noble Lord, Lord Brown, referred.
The United Kingdom is itself under the scrutiny of the ICC for its own actions. It is therefore demeaning for it to seek to shelter behind legalities—to argue that genocide is a matter for legal, not political decision, and that the Government are not a prosecutor, judge or jury, so cannot come to a conclusion. I await with interest the Bill of the noble Lord, Lord Alton, on the legal determination of genocide. No doubt, I shall support it. As the noble and learned Lord, Lord Brown, said a moment ago, how is it justiciable for the Government to take, for example, Burma to the High Court in this country to seek a declaration—with the Burmese Government having the opportunity to put forward their case—that what they are doing to the Rohingya in Burma is genocide? I do not find that an attractive solution.
In December 2004, regulations laid under the International Criminal Court Act 2001 adopted the text of the Elements of Crimes defined by the Assembly of States Parties under the Rome statute. Nothing could be clearer. Genocide in all its aspects requires, first, an intent to destroy in whole or in part a national, ethnical, racial or religious group. The second element is knowledge: knowledge by the perpetrator to be inferred from relevant facts. Thirdly, the conduct complained of must be part of a manifest pattern of similar conduct directed against the group. “Manifest” is an objective qualification, and I have to agree with the noble Lords, Lord Dholakia and Lord Loomba, that Burma must qualify for committing acts of genocide.
Under Article VIII of the 1948 genocide convention, the fact of genocide does not have to be established in a court of law of one of the “contracting parties” before complaint may be made. This country is a “duty carrier”, as the noble Lord, Lord Alton, put it.
Baroness Stedman-Scott (Con)
My Lords, I apologise for interrupting the noble Lord, but although we have some slack after some noble Lords have scratched, we are running out of that time. If the noble Lord could bring his remarks to a conclusion, we would be grateful.
Lord Thomas of Gresford
I am very grateful—I have a further paragraph, if your Lordships will permit me.
Article VIII says:
“Any Contracting Party may call upon the competent organs of the United Nations to take such action … as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”.
Since the implementation of the Rome statute, guilt or innocence is to be established in the International Criminal Court on a charge brought by the Office of the Prosecutor.
What does it say of this country if, with manifest evidence of genocide in the Middle East, Darfur or anywhere, it cannot bring itself to “call upon” the Security Council to set the wheels of the ICC in motion? It is a manifest breach of the UK’s undertaking to prevent and to punish genocide under Article I of the 1948 convention. Our reputation in the world is likely to be seriously damaged.
Lord Collins of Highbury (Lab)
My Lords, I too thank the noble Lord, Lord Alton, for initiating today’s debate. At every opportunity he has raised the plight of peoples who have been subjected to horrendous treatment.
Forced displacement and genocide often go together. Genocidal massacres terrorise a targeted group into fleeing, as we have seen in recent times in Syria, Myanmar and, of course, Sri Lanka. Every act of genocide or crime against humanity needs to be investigated. Impunity must be challenged; we cannot have a situation where years and years of crimes against humanity are ignored. To ensure that the people responsible are held to account for their actions is not only important to secure peace and reconciliation, it is vital and key to preventing it happening again. That is why the “crime without a name”, as Churchill put it, committed by the Nazis was given the legal definition of genocide. Never again would the international community stand aside while such heinous acts were committed. But as we have heard in today’s debate, sadly, they have happened again.
As the noble Lord, Lord Alton, and other noble Lords have highlighted, the Government have a long-standing policy on international declarations of genocide. We heard two years ago that,
“as the Prime Minister has said, genocide is a matter of legal rather than political opinion. We as the Government are not the prosecutor, the judge or the jury”.—[Official Report, Commons, 20/4/16; col. 995.]
In your Lordships’ House, in relation to the Daesh crimes which we have heard about today, the Minister at the time, the noble Baroness, Lady Anelay, repeated that assertion. But in doing so, she also referred to the number of meetings the Government and she had held with the ICC, saying it was important that we made progress on reaching a position where it was possible for the ICC to determine whether it will proceed. But, as the noble Lord, Lord Alton, has put it:
“Having no formal mechanism to refer evidence of genocide … simply leads to government buck-passing and hand-wringing”.
I would appreciate it if the Minister could give the House an up-to-date assessment of the ICC meetings. What further meetings have been held and what was the outcome? As we have heard, Article 1 of the 1951 Convention on the Prevention and Punishment of the Crime of Genocide states that contracting parties must prevent and punish and that any party may call upon the UN to take appropriate action to suppress acts. The convention also outlaws:
“Conspiracy to commit genocide … Direct and public incitement to commit genocide … Attempt to commit genocide … Complicity in genocide”.
We have plenty of evidence of that today, some of which has been indicated by political leaders. Can the Minister tell us whether the Government believe that the range of options open to either the ICC or the UN in preventing genocide should be broader? As the noble Lord, Lord Hannay, said, should we see a revision of those responsibilities? Since the adoption of the convention, we have seen the rise of non-state actors among the worst perpetrators of these heinous crimes. In the light of this, how does the Minister believe that international law should be adapted to best allow for the prosecution of such groups?
Ministers have previously told this House that they are focused on gathering evidence in preparation for any future prosecution, particularly of Daesh for genocide. What is the progress on that gathering of evidence? What commitments are being made by the Government to resource it? We need to see some definite action. Sadly, I agree completely with the noble Lord, Lord Hannay. When policymakers refuse to call genocide by its proper name, their denial becomes an excuse for inaction.
Baroness Goldie (Con)
My Lords, I first congratulate the noble Lord, Lord Alton, on securing this important debate. The issue of whether and how the UK should make determinations of genocide and other international crimes is one on which I know he holds strong views, as do other noble Lords—many of whom have spoken today—and Members of the other place. I say specifically to him that I know he is a passionate and tireless advocate of his position. I respect that. While the Government may not always be able to agree with him, we cannot but admire the tenacity and resolve he shows in constantly pursuing these issues.
It is right that we properly debate the issues and the rationale behind government policy. That policy remains, as described by the noble Lord, Lord Alton, that any determination of genocide or crimes against humanity, or war crimes, should be made only by competent courts and not by Governments or non-judicial bodies. These could include international courts such as the International Criminal Court, or national criminal courts that meet international standards of due process. We maintain that this position provides a clear, impartial and, perhaps very importantly, independent measure for the determination of whether genocide has occurred.
Your Lordships will be aware that the UK is not alone in the position it adopts. I also mention that our position is well understood, and we are not lobbied by other countries to change our approach. As the former Prime Minister, David Cameron, explained:
“Not only are the courts best placed to judge criminal matters but their impartiality also ensures the protection of the UK Government from the politicisation and controversies that often attach themselves to the question of genocide”.
That is why we do not agree with the provision contained in the noble Lord’s Genocide Determination Bill to empower the High Court of England and Wales to make a preliminary finding on cases of genocide. These are crimes that require the application of a criminal standard of proof on the basis of individual criminal liability—that is, any decision must be made after consideration of all the evidence available in the context of a credible criminal trial of an individual or individuals; it must not be an abstract opinion based on incomplete evidence. That could have the unwelcome and, I know, unintended consequence of prejudicing a subsequent criminal trial. The noble Baroness, Lady D’Souza, was wise in counselling caution in relation to a High Court referral.
I make it clear that this policy relating to the formal determination of genocide in no way undermines the UK’s commitment to the principle that there should be no impunity for perpetrators of the most serious crimes of international concern. My noble friend Lady Nicholson eloquently described the horrors of such repugnant activity, as did the noble Baroness, Lady Flather. I hope that that also reassures the noble Lords, Lord Loomba and Lord Collins, who also made important comments on that aspect.
As a party to the UN Convention on the Prevention and Punishment of the Crime of Genocide, we are committed to taking steps to prevent violations of international law that may amount to genocide and to ensuring that those who are guilty of its commission are brought to justice. I think that it was the noble Baroness, Lady D’Souza, who referred to that, as did the noble Lord, Lord Dholakia. Indeed, while we recognise, as the noble Lord, Lord Alton, suggested, that in some cases the terminology used to describe certain crimes may influence how some people view them, I emphasise that it does not influence the UK’s response; nor do we wait for a determination on the nature of a crime before taking appropriate action. That is why we do not agree that it is possible to address the situation only if a determination of genocide is made, and this is where I respectfully disagree with the noble Lords, Lord Alton and Lord Singh of Wimbledon.
In reference to the noble and learned Lord, Lord Brown, although I certainly do not want to lock horns with such an eminent lawyer, on the question of terminology I see a distinction between opining on an instance of murder by an individual and the much more challenging and complex determination of concluding that acts by citizens of a state against other citizens of that state constitute genocide.
What is the UK response to atrocities? I shall illustrate. Let us take, for example, our action in response to the appalling actions of Daesh in Syria and Iraq, and by the Burmese military in Rakhine, to which a number of your Lordships referred. The UK has played a leading role in the 77-member Global Coalition against Daesh, supporting efforts that have resulted in taking back 98% of the territory that Daesh once occupied and liberating 7.7 million people from its reign of terror. That is a very significant achievement.
We have also worked closely with the Government of Iraq to negotiate Security Council Resolution 2379 on Daesh accountability. That resolution, passed unanimously almost exactly a year ago, established an investigative team to collect, preserve and analyse evidence of Daesh’s appalling actions, and I hope that that reassures the noble Lord, Lord Collins. That team is led by Karim Khan QC, a highly experienced British advocate. It will consist of international and Iraqi experts, and will work closely with both the Government of Iraq and organisations already collecting evidence of Daesh’s crimes. We will provide Karim Khan and his team with every assistance to collect vital evidence before it is lost or destroyed.
The noble Lord, Lord Alton, referred specifically to Darfur, the Niger Delta and to Rwanda. On Darfur, the UK supported the United Nations Security Council referral to the International Criminal Court and has been a strong supporter of the court in helping to fulfil its mandate, providing almost £9 million last year alone. That funding is also allowing the court to conduct preliminary examinations and investigations across the globe, including the situation in the Niger Delta and the Middle Belt states. In Rwanda we supported the United Nations Security Council, acting under chapter 7 of the UN Charter, to establish an international criminal tribunal for Rwanda in 1994 and subsequently provided political and financial support until its closure.
The noble Lord, Lords Alton and Lord Hannay, and others also spoke about Burma. Following the allegations of serious human rights violations in Burma against the Rohingya, including sexual violence, we are taking action to pursue justice and to support the victims. Let me reassure the noble Lord, Lord Dholakia, on that. We co-sponsored the creation of the fact-finding mission, together with resolutions condemning the human rights violations and calling for unfettered UN access. We deployed our own team of experts in sexual violence to assess the situation on the ground. We are also applying pressure on those responsible for the violence, through targeted sanctions against members of the Burmese military. I say to the noble Baroness, Lady Flather, that among other things, our £129 million of humanitarian funding is providing psychosocial support for the victims in camps in Bangladesh.
On the comments about Burma by the noble Lord, Lord Alton, the Government are clear in their condemnation of the atrocities in Rakhine. The Foreign Secretary believes that action is warranted in the light of the fact-finding mission’s findings. The Foreign Secretary plans to convene a meeting of fellow UN Security Council Foreign Ministers at the UN General Assembly this month to discuss how best to ensure that perpetrators of atrocities are brought to justice. I say to the noble Lord, Lord Dholakia, and others who raised the question of Aung San Suu Kyi—yes, we believe that she should have spoken out more against the atrocities that the military has perpetrated in Rakhine. We have consistently urged her to use her moral authority in leadership to ensure that the Rohingya refugees can return safely.
I think it was the noble Lord, Lord Hannay, who, specifically in relation to the International Criminal Court, asked about the UK’s response to the recent US threat of sanctions. We have always been clear that the ICC can play an important role in ending impunity for the most serious international crimes. It has our full support in pursuing the mandate that it was given under the ICC statute. We have noted recent comments. I think that Mr Bolton does tend to have a bit of form in being sceptical about certain international organisations, but that does not diminish in any way the UK’s commitment to the ICC.
I say to the noble Lord, Lord Thomas of Gresford, that in relation to Iraq the UK is co-operating fully with the ICC prosecutor as her office carries out due process in this preliminary examination. We expect to be able to fully satisfy the prosecutor that the UK efforts to investigate and, where appropriate, to prosecute—
Lord Hannay of Chiswick
I am most grateful to the Minister for giving way; I think that she is drawing to a conclusion. However, she has not really addressed issues raised by myself and several other noble Lords, which fall short of the idea that is put forward in the draft legislation proposed by the noble Lord, Lord Alton, of establishing a judicial determination, but which suggests that the Government should be more open to stating, in circumstances where they have compelling evidence, that they believe there is prima facie evidence of genocide.
If the Minister is not armed with the Foreign Office legal advisers’ rock-ribbed determination not to move on this matter, will she please take the matter back and, in writing, tell noble Lords who have participated in this debate whether the Government are prepared to contemplate taking a more open attitude towards statements of the sort that I have suggested, which are not—I repeat, not—legal determinations?
Baroness Goldie
I listen, as I always do, to the noble Lord with great interest. I had endeavoured in my introductory remarks to indicate what the Government’s position is and why we hold that position. The Government are always interested in the observations and contributions of your Lordships and this is no exception. I shall certainly ensure that the noble Lord’s reflections are relayed to the department. More than that I cannot say.
Lord Deben (Con)
Does my noble friend also accept that very many of us would like her to do that because, if we cannot, we are in fact conniving with the wrong words being used for really serious offences?
Baroness Goldie
I strongly refute any question of connivance. That is not what the Government are doing. They have made their position clear. What I do respect is the attitude and opinion of certain of your Lordships that there might be some scope for revisiting how the Government adopt criteria to determine their approach. I have made clear what the Government’s policy decision is. However, we are always open-minded and we are certainly prepared to continue to look at these matters. But what I cannot do is give any false hope or, more importantly, any erroneous commitment. I can only undertake to relay the thoughts that have been expressed today.
I am now out of time. I had hoped to address a few other points. I will look at Hansard and endeavour to deal with any remaining matters that have not been addressed by corresponding with the appropriate noble Lords who made contributions.
This Government are committed to the principle that there should be no impunity for those who commit the most serious crimes of international concern. We have demonstrated this time and again through our unwavering support for international justice and investigatory mechanisms. We have provided support—political, financial and logistical—and been instrumental in the establishment of evidence-gathering mechanisms. I have made clear what the Government’s policy is: we believe that whether genocide has been committed or whether crimes against humanity or war crimes have occurred is a matter for judicial decision after consideration of all the available evidence, rather than for Governments or non-judicial bodies.
We are determined to try, as a number of noble Lords perceptively identified, to seek an end to serious violations of international law, prevent the escalation of any such violations and alleviate the suffering of those affected, irrespective of whether specific international crimes are deemed to have occurred. That is what this Government will continue to strive to do.