Burma (Sanctions) (EU Exit) Regulations 2019
(4 years, 11 months ago)
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Lord Ahmad of Wimbledon
That the Regulations laid before the House on 31 January be approved.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, in moving this Motion I will speak also to the Venezuela (Sanctions) (EU Exit) Regulations 2019, the Iran (Sanctions) (Human Rights) (EU Exit) Regulations 2019 and the Republic of Guinea-Bissau (Sanctions) (EU Exit) Regulations 2019.
Noble Lords will be familiar with the Sanctions and Anti-Money Laundering Act 2018, which passed through this House last year. It provides the UK with the legislative framework to continue to meet our international obligations, implement autonomous sanctions regimes and update our anti-money laundering framework after we leave the EU—although the last of these is not under consideration today.
Noble Lords will also be aware of the importance of sanctions. They are a key element of our approach to our most important international priorities. They help to defend our national interests, support our foreign policy and protect our national security. They also demonstrate our support for the international rules-based order. The United Kingdom has been a leading contributor to the development of multilateral sanctions in recent years. We have been particularly influential in guiding the EU’s approach, which is why we intend to carry over the policy effects of the EU sanctions regimes by transitioning them into UK law. I will say more about that in a moment.
The principal interests and threats facing the UK and other EU member states will not change fundamentally when the United Kingdom leaves the European Union. The Government recognise sanctions as a multilateral foreign policy tool and intend to continue to work in close partnership with the EU and other international partners after we leave the European Union to address those threats, including through the imposition of sanctions. We are committed to maintaining our sanctions capabilities and leadership role after we leave the EU. The Sanctions and Anti-Money Laundering Act 2018 was the first major legislative step in creating an independent UK sanctions framework.
However, although the Act set out the framework needed to impose our own independent sanctions, we still require statutory instruments to set out the detail of each sanctions regime within that framework. Such statutory instruments set out the purposes of our regimes, the criteria under which the Secretary of State may designate individuals and entities, and the types of restrictive measures imposed. They do not specify which individuals or entities will be sanctioned. The Government will publish a list of those we are sanctioning under UK legislation when those prohibitions come into force. We will then seek to transfer EU designations in each case, but these decisions will be subject to the legal tests detailed in the sanctions Act. Any EU listings that do not meet the tests will not be implemented.
Noble Lords will recall an important feature of the sanctions Act that we discussed in detail during its passage: the right to challenge. Anyone designated under these instruments will be able to request that the Minister carry out an administrative review of their designation. The procedure applicable to such requests for reviews is set out in the Sanctions Review Procedure (EU Exit) Regulations, which were made in November last year and which are now in force. If, following the review, the Minister’s decision is to uphold the designation, the designated person has the right to apply to the High Court, or the Court of Session in Scotland, to challenge that designation decision. The court will apply judicial review principles to determine whether the designation decision should be set aside and will apply the procedure set out in the amended civil procedure rules for England and Wales, the rules of the Court of Judicature for Northern Ireland and the rules of the Court of Session for Scotland, which in particular allow for closed material proceedings to take place in relation to such challenges. The regulations underpinning this process have already been subject to debate and approved by this House. I beg to move.
Baroness Northover (LD)
My Lords, I thank the Minister for introducing these statutory instruments extremely briefly—more briefly than his right honourable friend in the Commons.
We all agree that sanctions can play a key role in the implementation of the rule of international law and we support all four of the SIs. Clearly, no one wants our sanctions regime to lapse if we leave the EU. As the Minister said, the UK has been a leading contributor to the development of multilateral sanctions in recent years and we have been particularly influential in guiding the EU’s approach. Indeed we have—but we risk losing that influence. I am sure that the Minister will agree that sanctions carry greater weight as part of an EU-level arrangement, rather than going it alone. The Minister said:
“We are committed to maintaining our … leadership role after we leave the EU”.
Can he say how this is supposed to happen?
I note that in response to a Written Question on 8 October 2018 on the UK’s sanctions policies, Sir Alan Duncan stated:
“In future it will be in the UK’s and the EU’s mutual interest to discuss sanctions policy and decide where and how to combine efforts to the greatest effect”.
In light of that, are there any differences in the arrangements here or do they completely mirror what we have in the EU? What exploration has there been on how alignment will be assured in future?
Lord Alton of Liverpool (CB)
My Lords, I am very happy to support the four SIs before your Lordships’ House, and welcome the way in which the Minister introduced them. I am vice-chairman of the All-Party Parliamentary Group on Democracy in Burma, a founder of the Jubilee Campaign and patron of Karenaid.
When I took my seat in your Lordships’ House in 1997, the then Convenor of the Cross-Bench Peers, the former Speaker of the House of Commons, Lord Weatherill—one of my two sponsors—encouraged me to take an interest in the plight of the Karen in Burma. He introduced me to our late and very much missed colleague, Viscount Slim, whose family had so many historic associations with Burma. Viscount Slim encouraged me to support Prospect Burma, the charity he established, and to take these issues seriously.
I travelled to Burma and entered the Karen State illegally on two occasions, visiting the refugee camps where, to this day, there are more than 100,000 refugees from the Karen communities; some families have been there since the 1940s and 1950s. However, it has to be said that the situation in the Karen State significantly improved during the period of transition when the National League for Democracy won the elections in Burma and started to have some say over the governance of the country. But it has become very clear in the years that have followed that whatever hopes and progress we believed there would be in Burma—not least because of the role that Aung San Su Kyi, we felt, would be able to play—have been dashed.
Two years ago I was able to go to Naypyidaw, the capital city of Burma, and met with Daw Suu. I raised specifically with her what I had seen the day before in a village. I had been to a small village where Buddhists and Muslims had lived together alongside one another in harmony and coexistence for generations, and I saw that the madrassa in the village had been burnt to the ground. I was grateful to the Foreign Office official who accompanied me. We took evidence and gave it to Aung San Suu Kyi. I raised the issue of what was happening to the Rohingya people as well as the Kachin people and other groups among the many ethnicities in Burma who were clearly increasingly suffering. What has been happening to the Rohingya people ever since does not need to be rehearsed at any length with your Lordships. Around 1 million Rohingya are in camps, adding to the 44,000 people around the world who, according to UNHCR figures, are displaced every single day. That is creating untold misery, whether for those who take to the sea or for those who try to cross the borders into Bangladesh and have now been displaced for what is approaching years, with very little progress made to establish their rights to citizenship or to deal with the fundamental issues that led to them fleeing in the first place.
The Minister says that sanctions are a key element of our policy as a way of putting pressure on the military authorities in Burma who have brought this sad situation to pass. I agree that they are a tool in the kit, but one has to ask whether, by themselves, they are actually achieving a great deal. The Foreign and Commonwealth Office is to be applauded for being the most rigorous of departments in European Union countries in enforcing the arms embargo. We have one of the best records, and that should be said. But let us be clear about what these sanctions actually do. Apart from the arms embargo, they only amount to a ban on some 14 military and security personnel in Burma going on holiday to European Union member states. When we think of that as a response to crimes against humanity and what may even be approaching genocide—a point I shall come back to in a moment—it is, to coin a phrase used in a note I received only this morning from Burma Campaign UK, “pretty pathetic”.
It is certainly disproportionate, and I remind the Minister of his reply to a Question I tabled on 19 June last year. He rightly said:
“The Foreign Secretary has been clear that ethnic cleansing has taken place in Rakhine, and that the violence of August and September 2017 may even constitute genocide, though that would be a determination for an international court to make”.
On 26 June, I pressed the same issue with his noble friend Lady Fairhead, given that trade is central to the question of sanctions. On 12 June I had asked the noble Lord, Lord Ahmad, whether the Government planned to issue official guidance to companies not to engage in any form of business with companies owned by the Burmese military. The reply from the noble Baroness simply did not accord with the sort of words used by both the Foreign Secretary and the noble Lord speaking for the Foreign Office. The noble Baroness said:
“DIT continues to support trade with Burma as an important part of driving mutual prosperity”.
Who is it that we are driving mutual prosperity with? We are talking about the Tatmadaw, the military junta. They are the people responsible for what has happened in Rakhine, for what is happening to the Kachin people, and for many of the depredations of which we are all too well aware. The noble Baroness, Lady Fairhead, went on to answer my question about whether the Government planned to make a public statement of support for a UN mandated global arms embargo against Myanmar. The reply from the noble Lord, Lord Ahmad, who dealt with that aspect, was:
“The Government continues to assess that there is insufficient support at present for a UN Security Council Resolution instituting a global arms embargo for Burma”.
Perhaps I may press the noble Lord again today as to whether that remains Her Majesty’s Government’s position and whether sometimes, even if you know you are going to be defeated—I say this for those of us who have spent our lives often being defeated—there are moments when it is right to take a stand and to put people on the spot. If we are saying that representatives of the People’s Republic of China are the ones who would veto such a resolution, let them do so and let us demonstrate the difference between their values and ours. Sometimes, I get frustrated that we use this as the first line of defence in places like North Korea, which has been described by the UN as a state without parallel when it comes to human rights violations, and in the case of Myanmar. We are saying that we will not take this forward because we think that others will oppose or veto it. Well, let them do so.
Baroness Hooper (Con)
My Lords, I thank my noble friend for bringing these four instruments before the House and I shall listen with interest to his replies to the many questions that have already been raised. My own interest lies primarily in the Venezuelan situation, which at the moment is highly topical and very fluid. The Venezuelan people have been going through a very difficult time not just over the past two years but for several years. I think that they have suffered enough. Given the fluidity of the situation, would my noble friend be prepared to commit to keeping the House informed with updates as and when any further action may be relevant? Can he also confirm that the Government will continue to co-ordinate and co-operate with the Lima Group in particular to ensure that regional considerations are at the forefront of any actions we take in relation to sanctions against Venezuela?
Lord Chidgey (LD)
My Lords, I am delighted to thank the Minister for opening the debate and for giving me the opportunity to contribute and talk about Guinea-Bissau, which lies in an incredibly complex part of Africa, given its history and the influences placed on it, not just by western, European colonialists but by Asia, by religion and by their own ethnic empires in the region. It is a real melting pot. The point is that here we are in the 21st century looking at sanctions on Guinea-Bissau specifically to try to influence the way it relates to the values we believe to be absolutely fundamental in a modern state.
We have to take into account that the political evolution of Guinea-Bissau, before and after independence, has been as troubled and turbulent as that of any country in the region. The armed rebellion against Portugal, the colonial power, began in 1956 with the support of Cuba and the Soviet Union—and China, which was almost unheard of in those days. Meanwhile, in the neighbouring Republic of Guinea, or Guinea Conakry, Ahmed Sekou Toure’s Government were choosing not to join de Gaulle’s post-colonial French community. This resulted in the immediate withdrawal of all French investment and assistance, creating an economic crisis. In the 1980s, I gained first-hand knowledge of the results of that situation.
Sekou Toure’s soldiers crossed into Guinea-Bissau to join the rebels fighting the Portuguese, and the rebels gradually took control of the country. In 1970, the Portuguese organised an attempted coup in Guinea Conakry, with the aim of releasing their troops captured in the fighting in Guinea-Bissau and then held in appalling prison camps just outside Conakry. They succeeded and withdrew, leaving the exiled Guinean troops they had accompanied to fight on alone. Those troops failed to reach the radio station in Conakry in time to prevent a warning being sent to Sekou Toure, the President, thus allowing him to evade capture and certain execution. Following independence, the ruling party in Guinea-Bissau massacred hundreds of thousands of local soldiers who had fought alongside the Portuguese. In Guinea Conakry, over 50,000 people were killed in massive purges. A third of the population fled to neighbouring countries and all French citizens were banished.
Against this background, the introduction of democratic elections in Guinea-Bissau in 1994 was almost bound to end in failure, culminating as it did in civil war. It is a matter of record that, since 1998, Guinea-Bissau has had 10 Prime Ministers and three elected Presidents, none of whom has been allowed to complete their mandate. Four chiefs of general staff of the armed forces have been removed by the military, two of whom were assassinated by fellow officers. With the latest crisis also being marked by military intervention, it is no wonder that, in December 2018, the UN Security Council warned that unless political actors in Guinea-Bissau demonstrate renewed good faith to hold,
“genuinely free and fair elections”,
the country is set to face a continuing cycle of instability.
According to the UN’s deputy special representative, David McLachlan-Karr, the recent elections were a very positive result for people, heralding the dawn of a new chapter for democracy in Guinea-Bissau. I note that in the SI, however, the Government acknowledge that the democratic process in the Republic of Guinea-Bissau remains uncertain. The SI needs to promote the rule of law and good governance and seek to prevent threats to democratic principles, and the Government plan to continue to hold Guinea-Bissau to account for any action that undermines the peace, security or stability of the country. This of course is very commendable, and much to be welcomed and supported.
We understand that the identity of designated persons targeted by the SI cannot be revealed in advance, to limit the opportunity for them to remove assets from the UK. However, if the Minister could advise us, it would be helpful to know the scale of the assets considered and an approximation of the number of designated persons there might be, given that Guinea-Bissau’s population is well under 2 million. Are they resident in Guinea-Bissau? Are there conspiracies of organised crime involved? How do the Government expect to monitor their activities and respond to their actions?
Lord Collins of Highbury (Lab)
My Lords, I too welcome the Minister’s introduction to these SIs, and his brevity. I also welcome the contributions from other noble Lords that related to policy issues. Whenever we talk about sanctions, there is a reason for them, and those reasons need to be clearly expressed. I therefore welcome the contribution of all noble Lords in that regard.
I shall raise specific points that arise primarily from the discussion in the other place, in particular on the Magnitsky clause and the question of human rights. During the passage of the sanctions Bill, we had a detailed debate on human rights, and it was this House that pushed for amendments to include that as a primary reason for sanctions. The Magnitsky clause is an opportunity to expand the scope of the impact of our sanctions.
In the other place, we heard quite a few reasons why we were not going to see anything on the Magnitsky clause in these SIs. It was a bit confusing. The reasons given included that we cannot act too rapidly, and that we have had various pieces of legal advice. Sir Alan Duncan also said that we have about 3,000 statutory instruments to get through, and that there is a risk of constant legal challenge. A different explanation seems to have been given by the Permanent Under-Secretary and the Foreign Secretary. When pushed, the Government seem to be arguing that we cannot do this because we are operating within the EU framework and cannot act independently. Yet we know that there are EU countries that have exactly those provisions—Estonia and Lithuania, to name two—where individual Russians who have committed human rights abuses are specifically named.
If Sir Alan Duncan, the Minister, is saying that that action is not consistent with the Government’s legal advice, perhaps the noble Lord the Minister can tell us exactly how and when it might fit properly within the implementation period. When pressed, Sir Alan Duncan said that it was difficult to forecast—that seems to be the position of the Government at the moment on this uncertainty. When pushed again, he said that it would be as soon as was practicable. That sounds like quite a short timeframe to me, because it ought to be practicable to do this. I hope the noble Lord will be more precise than the Minister in the other place.
I want to focus on the following questions. What are sanctions for? How do we measure their effectiveness? We have had previous debates on sanctions, and often we get a report from the Government which says that sanctions are effective because they have stopped X, Y and Z. We then have to ask ourselves what impact they are having: are they actually influencing the people committing all these things?
The noble Lord, Lord Alton, is absolutely right. Stopping military leaders means stopping those who control not only the policy of Burma but the economy of Burma. We are not talking about individuals who simply have a role in government. Their influence and the way they have exploited the economy of Burma goes well beyond their military role. We need to address that. The idea that we should simply stop them going on a shopping trip beggars belief.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have again contributed to a very practical and focused discussion. I am pleased that the noble Lord, Lord Collins, and the noble Baroness, Lady Northover, noticed the brevity of my opening remarks. We have talked about sanctions to a large extent and perhaps I was pre-empting some of the questions. I was not disappointed. There were focused questions on the specific proposals in front of us today and I will answer them directly.
In thanking everyone here, I acknowledge and put on record the thanks of the Government to the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, which have been working terribly hard in the current climate. I appreciate their close scrutiny of the statutory instruments laid before us today.
I agree with the noble Lord, Lord Collins, that it is important that, as we leave the European Union, we align ourselves to working closely with our European Union partners to ensure that any sanctions we impose have the desired impact. It is no good applying a sanctions regime in the UK which is different from that of some of our nearest and closest allies, including the European Union. Discussions on that have taken place with our partners and continue to do so, because we all desire to ensure the robustness of those schemes.
From the discussions I have had with a number of European Foreign Ministers, I can assure noble Lords that, notwithstanding our departure from the European Union, there is a real commitment to continue to work and align ourselves closely on many issues in which we share common perspectives—and sanctions is certainly one such area.
As noble Lords will be aware, the Sanctions Act requires a review of all UK sanctions listings at least every three years. In addition to this triannual review, we will also review all sanctions regimes such as those being debated today on an annual basis. That will present yet another opportunity to review and scrutinise how we are acting in conjunction with other key allies around the world, including those within the European Union. As I have already said, these arrangements will also provide protection for designated persons, especially when coupled with wider safeguards than the sanctions Act.
I turn to some specific questions. The noble Lord, Lord Collins, rightly asked why we had proposed what is in front of us today and what was the exact purpose of sanctions. As I said in my opening remarks, the SIs are intended to transfer into UK law the respective EU sanctions regimes. The instruments seek to substantially mirror the policy effects and mutually reinforce the measures in the corresponding EU sanctions regime.
The noble Baroness, Lady Northover, and the noble Lord, Lord Collins, rightly raised the issue of human rights. I assure noble Lords that human rights are a significant focus of the sanctions regimes we are debating today. I know that many are keen for the UK to develop its own stand-alone human rights sanctions regime and may therefore query why we are simply transferring existing EU sanctions regimes. I assure both noble Lords that the sanctions Act gives us the necessary powers in UK law to develop our own such regime. However, these SIs were laid on a contingent basis to provide for the continuation of some existing sanctions regimes should we leave the EU without a deal. Transferring our existing EU measures by laying SIs such as these has been our priority, and I am sure noble Lords acknowledge that. We will soon be able to consider new regimes specifically.
The noble Baroness, Lady Northover, asked a series of questions across different elements. I have already alluded to the issue of the EU and how we will work closely together. I assure noble Lords that we will continue to work closely to strengthen our bilateral relationships with key partners. The UK’s existing co-operation with the EU on foreign policy, security and defence issues provides a strong platform on which to build our future relationship. Last week I was at the Security Council of the United Nations, under the German presidency, discussing the important issue of sexual violence in conflict. The bilateral discussions I had with the German Foreign Minister and others concerned how we could align ourselves closely in areas of mutual co-operation.
The EU-UK political declaration, which I am sure noble Lords saw, also mentions specifically:
“Consultation on sanctions, with intensified exchange of information where foreign policy objectives are aligned, with the possibility of adopting mutually reinforcing sanctions”.
That is a clear statement of intent on how we seek to co-operate going forward.
The noble Baroness asked about divergence from EU sanctions. My right honourable friend the Prime Minister has said that the UK,
“will look to carry over all EU sanctions at the time of our departure”.
I assure the noble Baroness that, under the sanctions Act, the Government will produce secondary legislation for each existing EU regime in order to carry EU sanctions over into UK law. Stating what will happen in future would be purely speculative, but I hope that I have given a level of reassurance to noble Lords in respect of our intention to work closely with our European partners.
The noble Lord, Lord Collins, rightly raised human rights and specifically the Magnitsky sanctions. I was proud of your Lordships’ role in ensuring that there was a real focus on human rights in the sanctions Act. As noble Lords will have noted, three out of the four sanctions regulations being debated today—on Burma, Venezuela and Iran—are made at least in part to promote compliance with international human rights law and respect for human rights. The sanctions imposed under these regulations are designed to ensure accountability for human rights violators.
As I have already said, the Sanctions and Anti-Money Laundering Act 2018 provides powers for the UK to make secondary legislation to impose sanctions to provide accountability for or to deter gross violations of human rights, and to promote compliance with international human rights law and respect for human rights. I assure noble Lords that the UK strongly supports current efforts to establish a thematic human rights sanctions regime. The Government’s focus to date has been on ensuring that we have the necessary secondary legislation in place to implement EU and UN sanctions. The SIs we are debating today are part of that preparation. As a member of the EU, or during the implementation period, EU sanctions will apply within the UK, and we will use the powers provided by the sanctions Act to the fullest extent possible during that period. The noble Lord talked about different countries during that interim period, and there will be some limitations on what we can impose autonomously. I assure noble Lords that it is our intention that national sanctions in relation to human rights will be brought forward, but we will need to design and draft a statutory instrument to ensure that associated processes and structures are in place. I am sure noble Lords will agree that it is also important that we set up the regime correctly to ensure that sanctions meet the legal tests set out in the sanctions Act. In summary on that point, the Magnitsky clause in the sanctions Act, and the Act itself, provide the governance and framework to allow us to take forward those principles and those protections for human rights.
If I may digress for a moment, it was a huge privilege recently to mark the 40 years in Parliament of the noble Lord, Lord Alton. He has been a strong promoter of human rights over many years. I pay tribute to him and put on record my thanks for being such an advocate for human rights over a number of years. The contribution he made today underlines the intense focus, detail and sensitivity he brings to this subject. I look forward to working with him and, indeed, all noble Lords on these important issues.
The noble Lord, Lord Alton, and the noble Baroness mentioned Burma. I assure noble Lords that the regulations in front of us impose an arms embargo as well as prohibitions relating to dual-use items and items that can be used for internal repression and for the interception and monitoring of telecommunications. There are also currently prohibitions on the provision of interception and monitoring services and on military related services, including the provision of training, personnel and funds to the Tatmadaw. The noble Lord, Lord Collins, alluded to the leadership of Burma. We have led the way in the EU when it comes to sanctions on Burma. The noble Lord, Lord Alton, rightly made a point about the situation in the United Nations. Burma has been an issue. As the penholder on Burma at the United Nations Security Council, we are cognisant of the importance of moving forward on these issues. Undoubtedly some members of the Security Council are reluctant to move forward in the way all of us in this House would want to see, but I will apprise the noble Lord of the progress we can make in this respect. It is not something that we are losing focus on. I stress that in my capacity as the Prime Minister’s special representative on preventing sexual violence in conflict, ensuring that we bring justice for the victims and survivors of tragic events such as the ethnic cleansing we have seen in places such as Burma by bringing the perpetrators to justice will remain a key focus of my human rights work.