Consideration of Lords message
After Clause 2
Parliamentary approval of international trade agreements and treaties
We now come to the message from the House of Lords on the Trade Bill, which is to be considered in accordance with the order of 19 January. We begin with the Government motion to disagree with the Lords in their amendment 1B, with which it will be convenient to consider the other Government motions and amendments on the notice paper.
As I said in my introduction, all of this is being done under the provisions of the programme motion agreed by the House on 19 January. The questions to be put at that time are governed by Standing Order No. 83G, which does not allow for questions to be put on motions or amendments moved other than by Ministers. It is therefore not possible to have a Division on certain amendments that have been tabled, but I can assure the hon. Member that everything is in order.
With this it will be convenient to consider the following:
Lords amendments 2B and 3B, Government motion to disagree, and Government amendments (a) and (b) in lieu.
Amendment (i) to Government amendments (a) and (b) in lieu.
Lords amendment 6B, Government motion to disagree, and Government amendments (a) to (c) in lieu.
We move ever closer to getting the Trade Bill on to the statute books. I recognise that we are very limited in our time for debate, so I will get straight into the details. I will deal with parliamentary scrutiny, followed by standards, followed by human rights and genocide.
I begin with Lords amendment 1B, on parliamentary scrutiny. Parliament of course plays a vital role in scrutinising our trade policy. We currently have robust scrutiny arrangements that allow Parliament to hold the Government to account. The Government have provided extensive information to Parliament on our free trade negotiations, including publishing our objectives, which are also shared with the devolved Administrations, economic scoping assessments and the Government’s response to the public consultation prior to the start of each set of talks. We have also shared the text of each deal with the relevant Committees in advance of their being laid before Parliament under the Constitutional Reform and Governance Act 2010. The Committees then have the option to produce independent reports on each agreement. Furthermore, if Parliament is not content with a free trade agreement that has been negotiated, it has powers under CRaG to prevent ratification by resolving against ratification indefinitely, acting as an effective veto.
No, I do not agree. I think the previous Labour Government designed the CRaG process specifically with that in mind—that Parliament would have an effective veto on a trade agreement through the CRaG process by continuing to resolve against ratification indefinitely. That is my understanding of what an effective veto would look like.
In respect of facilitating debate on free trade agreements as part of CRaG, the Government have clearly stated that we will work to facilitate requests, including those from the relevant Select Committees, for debate on the agreement, subject to available parliamentary time. The Government have a good record on this. Debate took place last year on the Japan free trade agreement, alongside six other debates on continuity agreements.
I will address the amendment tabled by the Government in response to Lords amendment 6B, on standards. Although we are in agreement that our continuity deal programme has not reduced standards, I fully understand the House’s desire to ensure that standards are safeguarded. The Government therefore tabled an amendment that will provide a cast-iron statutory guarantee that the trade agreement implementing power in the Trade Bill will not be used to dilute standards. This amendment guarantees that the clause 2 power cannot be used to implement any continuity trade agreement if that agreement is not consistent with existing statutory protections in the areas of human, animal or plant health, animal welfare, environmental standards, employment and labour rights, data protection and the protection of children and vulnerable adults online.
The amendment also provides that clause 2 implementing legislation must be consistent with maintaining UK publicly funded clinical healthcare services. In other words, we are living up to our promises that trade will not lead to a lowering of standards and that the UK’s protection in these areas will continue to lead the pack. I hope that all sides can now unite around this amendment, safe in the knowledge that we are not lowering standards through the back door. I thank hon. Members for their engagement on this issue and encourage all colleagues to join me in voting in favour of the Government amendment.
I now turn to Lords amendments 2B and 3B, on human rights and genocide. With regard to Lords amendment 2B, on human rights, parliamentary Committees have the ability to produce reports on any agreement that the UK negotiates with a partner country.
I do not know whether the Minister heard my saying in the last debate that I am worried about the courts dealing with this in the absence of a defendant. However, I also expressed my worry about vexatious motions against our allies—Israel, Turkey, Saudi Arabia. How can the Minister assure me that there will not be a series of vexatious motions coming to this parliamentary Committee? Can we ensure that the Committee’s terms of reference are tightly drawn, so that it can actually deal with clear cases of genocide?
At the moment, I am speaking about human rights—I am coming on to genocide in a moment—but I totally appreciate my right hon. Friend’s question. It would not be proper for me as a Government Minister to seek to dictate how a Select Committee might approach its business; I think we have to have a level of trust in our Select Committees to approach this question sensibly and logically.
The answer to this question is very simple. Ministers cannot direct Select Committees. Select Committees will go where they think it is necessary. So with this amendment, Select Committees will feel completely free to look at anything, regardless of what the Government say that the bar is on that. That is the answer to this question.
I thank my right hon. Friend, but there is a crucial difference here. Yes, the Select Committee runs itself. It can make calls for evidence and produce a report, and we would expect it to report quite quickly if there were credible reports of genocide, so the Select Committee writes the motion, but there is still the protection that the matter then goes to a vote of the whole House. I find it hard to conceive that a vote of the whole House in which the Government had a majority would determine something along the lines suggested by my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) or my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I find that hard to conceive. I think we should have more trust in our Select Committees.
Going back to human rights, the Foreign, Commonwealth and Development Office already publishes an annual human rights and democracy report, so there is no need for Lords amendment 2B
Turning to Lords amendment 3B on genocide and the amendment tabled by my right hon. Friend the Member for Chingford and Woodford Green, it is the Government’s firm view that expanding the role of the UK courts in the manner envisaged is inappropriate and would carry harmful unintended consequences. First, it would be unlikely to work. Genocide is notoriously hard to prove, with a higher legal threshold. If a judge were unable to make a preliminary determination on genocide, which is highly probable, it would be a huge propaganda win for the country in question, effectively allowing that state to claim that it had been cleared by the UK courts.
I find it hard to believe that, if a country was investigated for genocide, that could in any way be seen as a propaganda event. It is not for us to determine how that decision is taken. The Government repeatedly say that that is for the courts, so we should allow the courts to come to a determination on the basis of evidence. We should never believe that people will not put a case forward to the courts because it might fail. That is just nonsense.
I have to say that I disagree with my hon. Friend. I also think that the proposal made in the amendment tabled by the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), is a superior process, which I am going to outline. So I disagree with her point, if I may respectfully say that.
As I was saying, if a judge were unable to make a preliminary determination on genocide, it would be a huge propaganda win for the country in question, effectively allowing that state to claim that it had been cleared by a UK court. That would be an awful result, and I encourage the House to think strongly about the implications of that before supporting this amendment. Rather than helping persecuted people, we would be setting their cause back. Further, any determination would be subject to appeal, which would create a more drawn-out process than that envisaged by the amendment.
I am not going to give way, because I am conscious of the fact that I have already been speaking for nine minutes and I have given way four times.
Secondly, the amendment raises serious constitutional issues and blurs the separation of powers. Inserting the courts into a decision-making process that is rightly a matter for the Government and for Parliament would disrupt the delicate constitutional balance we have in this country between the Executive, Parliament and our independent judiciary. As outlined in an article for PoliticsHome last week by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst, it is the role of Government to formulate trade policy and conclude international treaties, including trade deals. Parliament already has a critical role in this under the terms of CRaG, which enables it to scrutinise treaties prior to ratification and effectively block them if it chooses. Fundamentally, it is right and proper that Parliament takes a position on credible reports of genocide relating to proposed free trade agreements rather than, in effect, subcontracting responsibility to the courts to tell us what to think.
We absolutely agree with the Lords and with my right hon. Friend the Member for Chingford and Woodford Green that there should be a debate in Parliament on the issue of genocide relating to bilateral free trade agreements. Such a process is precisely what Lords amendment 3B envisages. However, the Government firmly believe that it is for Parliament, not the courts, to determine what Parliament debates. That is why the Government support the approach set out in the amendment tabled by the Chair of the Justice Committee and signed by the Secretary of State. It proposes that if a relevant Select Committee publishes a report stating that there exist credible reports of genocide occurring in the territory of a state with which we propose a bilateral FTA, the Government have a duty to act. First, we will respond in writing, setting out the Government position. If the Committee is dissatisfied with that, the Government will then make time for a debate and vote in the House of Commons on a substantive motion.
I am going to make more progress—sorry, I will not give way further.
The wording of that substantive motion will be provided by the Committee. A similar process would ensue in the other place to take note of the report. The process that I have outlined would be triggered in each case by the publication of the Select Committee report.
I am not going to take further interventions —there is only an hour for this debate.
It is up to Committees how they report, but such a report could come about in response to evidence produced by their own inquiries or to a finding of genocide by a competent criminal court, whether international or domestic. Such an approach rightly puts Parliament, not the courts, in the driving seat on this issue, which is who generates a debate in Parliament. Our policy on the legal determination of genocide has not changed. It has long been the Government’s position that genocide determination is a matter for the relevant court, which includes international courts and domestic criminal courts. However, whether to have a debate in Parliament should be a matter for Parliament.
I hope the House agrees that the amendment tabled by the Chair of the Justice Committee is a reasonable middle ground: it delivers the result envisaged by the Lords amendment—that is, to have a parliamentary debate—and the amendment tabled by my right hon. Friend the Member for Chingford and Woodford Green, but it does so through Parliament, not the courts. It allows Parliament to act quickly and decisively on the issue of genocide and, crucially, places a specific duty on the Government to act on the Committee’s concerns. It does so without upsetting the delicate separation of powers and without judicial encroachment. It ensures that Parliament has a clear role and that the Government have a clear duty when credible reports of genocide are raised with regard to a proposed bilateral FTA partner. I hope that Members from all parties will come together in support of the amendment tabled by the Chair of the Justice Committee.
At the outset, I thank the hon. Members for Wealden (Ms Ghani) and for Huntingdon (Mr Djanogly), the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and the many others from all parties who, like our colleagues in the other place, who have worked with great persistence, and always in good faith, to achieve the right outcomes today.
Do you know what, Mr Deputy Speaker? It was 52 years ago this week that the House of Commons debated the introduction of Britain’s very first Genocide Act, which made genocide a distinct offence in our country and gave our courts the power to determine when it had been committed. When one looks back at that debate, it really strikes one that, were it not for some recognisable names, one would not know which MPs were Labour, Conservatives or Liberal, such was the unity in the House on the issue. Such obvious pride was taken by all Members in being part of a decision, taken by the British Parliament and led by the British Government, that would resonate around the world.
I fear that today, the atmosphere and outcome of our debate may be very different. Any future generations who choose to look back will ask themselves why on earth the Government of the day were playing procedural parliamentary games on an issue as serious as momentous as the genocidal crimes being committed against the Uyghurs in China. Rather than dwell on the shameful, shabby and shifty behaviour of the Government Whips in seeking to prevent a straight vote on the genocide amendment, let me instead address the key point of substance in the amendment that the Government have put forward to wreck it.
In the space of the last three weeks, the Prime Minister, the Foreign Secretary and the Trade Secretary have all stated on the record that the courts can determine what is and what is not genocide. The hon. Member for Bromley and Chislehurst (Sir Robert Neill) himself, the Chair of the Justice Committee, wrote an article, which has already been quoted. Let me quote another bit of it, in which he said:
“Successive governments have said that the attribution of genocide is a matter for judicial determination.”
Yet he and the Government are now proposing an amendment that would remove the courts from that process entirely and hand the responsibility instead to the Select Committees, which have already said publicly that they do not have the capacity to make such judgments. In other words, the Government wish to take a strong, substantive and historic new process for attributing genocide through the courts and acting on those rulings through our Parliament, and replace all of that with a weak, flawed and, frankly, entirely forgettable adjustment to the existing powers of Select Committees, and that is not good enough. I hope that Members on all sides will reject what I am afraid has to be said is a shameful wrecking effort, and vote instead for the original amendments 2B and 3B.
The Government’s other wrecking amendment today, on non-regression of standards, is equally flawed and equally contemptuous of Parliament’s will. It has been, I am afraid, very deliberately drafted to apply only to the continuity trade agreements already signed by the Government over the past two years, not to the trade agreements that the Government are negotiating with the likes of America and Australia today. In other words, the amendment would act retrospectively to prevent our standards for food safety, animal welfare, NHS data and online harms being undermined by the deals we signed two years ago.
I am not going to take any interventions, because my view is that we have so little time, I think it is only fair just to continue. [Interruption.] I have made it clear that I am not going to take any interventions.
The amendment the Government have tabled is one whereby we are just talking about continuity agreements, not about agreements to come. Those deals are deals such as the ones we signed two years ago with Lesotho or with Liechtenstein, and this will have no bearing whatever on any trade deal that we negotiate in the next two years with Washington or Canberra. That is the level of contempt with which the Government Whips are treating the House of Commons today. So again, I would urge Members on all sides to reject this ridiculous wrecking effort, and vote instead for amendment 6B.
In closing, I think we can all do something today even more powerful than rejecting those wrecking amendments and standing up to the shameful tactics employed by the Government Whips. We can draw the only logical conclusion from today’s events—namely, that if we do not act to guarantee the rights of Parliament to scrutinise and approve the Government’s decisions on trade, then we leave ourselves entirely at the mercy of the Government Whips, who have shown today that they will stop at nothing to deny us a voice and deny us a vote.
We have it in our power today, by backing Lord Lansley’s amendment 1B, to guarantee Parliament a vote on all future trade deals and take responsibility in this House for ensuring that our standards and our values are not undermined by the deals that we do abroad. It is a very simple idea, and in the absence of a straight vote on what I would call the Alton amendment, passing the Lansley amendment would be the very best safety net that we could put in place to prevent the agreement of trade deals with countries that commit genocide and the very best rejoinder that we could provide to anyone who would seek to suppress the will of this Parliament. If we can achieve that outcome, we can turn this from a day of shameful, shabby, shifty tactics to a day a pride for our democracy and a day of promise for the Uyghurs.
Thank you, Mr Deputy Speaker. That is a very short time, so I will do my level best to get my three points across.
I just want to say something about the procedure today. Of course, we would not be sitting here if it was not in order for these proceedings, but there are different ways to be in order, and the reality of bundling together all these things into one motion—an amendment tabled by the Government—means that of course there is no way we will get to vote on the Lords amendment on genocide. I simply point out that fact. It reminds me that this little dispute is a little bit like the Handforth parish council one, and it is always a good idea to read the Standing Orders. I have read them, and they tell me what has happened: the Government have deliberately blocked this. I am sorry, but that is what this is. No point of order on that one; that is the reality. I simply say to my hon. Friends that I have been here long enough, and this is beneath them. I wish they had thought again, and I hope they do not try this one again.
I respect my right hon. Friend the Minister for Trade Policy enormously, as he knows, but I must pick up on a few points that he made, as I did table an amendment. First, he extols the virtues of the Government amendment and attacks the idea that the courts could make the judgment, as that would impinge on our position as a Parliament. Yet literally yesterday, in answer to a parliamentary question about whether genocide was a matter for the courts, the Foreign Office said:
“It is the policy of the UK Government that any judgment on whether genocide has occurred is a matter for competent courts rather than Governments or other non-judicial bodies.”
I ask my right hon. Friend: what is a Select Committee? Is it a judicial or a non-judicial body? If it is a non-judicial body, the Government amendment puts the power in the hands of a non-judicial body. What are we doing? We are running in circles just to avoid the reality.
My point is that we have been a little insulting about judges in the amendment that my right hon. Friend is talking about. I have my own differences with judges, but I remind the House that when we need an impartial taking of evidence and judgment—Savile, Grenfell, Hillsborough or any of the other cases—we turn not to Select Committees but to a judge. Why do we do that? First, because we assume that they are impartial and secondly, because they are trained to take and deal with evidence. We are not; we are partial—that is why we are here. We have Select Committees and we have prejudices, and that is the point.
Why does my right hon. Friend think that the Minister claims that a Select Committee, which already has the power to investigate all sorts of things in this House, is in some way superior to a judicial determination by a court? Only this week, Sir Geoffrey Nice, a distinguished QC who prosecuted Milošević, said that under the International Criminal Court Act 2001, UK courts are competent to prosecute the offence of genocide. The provision is there—we should surely be using it, not dismissing it.
That is why, I say gently to my right hon. Friend the Minister, in my amendment I deliberately locked in the idea that if the Government want to sift this by looking at Select Committees first, that is fine, but I think they should have the power to refer it to a court if the evidence is overwhelming and they want that final impartial judgment. However, he did not mention that at all.
I come back to amendment 3B. We bent over backwards to answer every single question that the Government laid on the last time we debated this. Under the amendment, the courts cannot strike down trade deals anymore. The Government set the terms of the referral and the level of evidence required to pass the barrier. All that is handed back to Ministers. All the court will do is decide on genocide, and then it is up to Ministers and Parliament to decide what to do. We do not even tell Ministers in this amendment that they should do anything other than at some point come back and ask Parliament. That seems completely reasonable and puts the power in the hands of Parliament.
We have a very limited amount of time, and I am very sad today that the Government have chosen not to allow us to vote on the amendment. I am not voting on my amendment either. I oppose the Government’s amendment because, as my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) suggested, I think it will lead to much more vexatious complaint and all sorts of human rights stuff piling through.
Today should have been a chance to stand tall—to send a signal to those without hope all over the world, whether the Uyghurs or the Rohingya. Instead of providing a beacon of light and hope, we have today gone into the dark corridors of procedural purdah. We need to emerge.
Lords amendment 1B covers one of the most glaring omissions from the Bill and it simply serves to underline the ideologically driven and confusing motives of the Government, who have already dealt so much damage to people, families and businesses right across Scotland and the other nations of the UK—and for what? It is supposedly for undiluted parliamentary sovereignty, yet the Government have not seen fit to give Parliament a role in setting the agenda on trade negotiations. That is extraordinary. It is damning of this Government, given the scrutiny arrangements that other Parliaments have around the world, including the EU’s, where they have control over both mandates and the progress of negotiations. The UK has now sunk to the bottom, relative to what is undertaken elsewhere.
Parliamentary scrutiny in the UK being thrown overboard brings me to the now treacherous waters of the so-called “sea of opportunity”. The Tories tell us that it is on the horizon, yet with every self-harming action they embark on it gets further away. Now it is on the other side of the planet as the UK splashes about trying to grab any bit of flotsam and jetsam to plug the hole in their waterline caused by their own Brexit torpedoes. The Government have formally begun the process of accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and that is fair enough. We in the Scottish National party have always been clear that we support free trade. Indeed, it is exactly why we want Scotland to rejoin the EU, which, the Minister may recall is the world’s largest single market. It is the one that has a larger international free trade network than any other bloc. Pursuing free trade agreements has to be supported, but the CPTPP has deep and extensive burdens, some of which our citizens should be very wary of.
The investor-state dispute settlement clauses threaten the independence of the national health service and, once again, key sectors such as agriculture need to be concerned about competition. The National Farmers Union has argued for a straightforward, transparent and explicit process requiring parliamentary agreement of trade deals prior to ratification, and it is wise to do so, having experienced the shambles and subsequent harm caused by the botched Brexit trade agreement. The NFU supports the Lords amendment, saying that it avoids creating an environment where previous frustrations with the impositions of laws and regulations by faceless bureaucrats are simply replaced in the eyes of farmers by those of faceless negotiators, undermining trust in and support for our independent trade policy. As a further example, the Government’s own estimates for UK GDP growth from a free trade agreement with New Zealand actually predict a fall, albeit a small one. We do not pass verdicts on negotiations being undertaken with any of these partners in principle, but it is absolutely necessary, given what is at stake, that Parliament does not simply find itself with a “take it or leave it” decision when trade agreements come back to the House.
This Tory Government have failed time and time again, despite the many opportunities to do this, to put protections for the NHS into trade agreements as a statutory requirement. Consequently, it has no protection. Let us think about that, at this time when so many have had cause to depend on the NHS, and its doctors, nurses and staff. The reason for people to be grateful that they are there is bigger than ever before, yet this Tory Government are not even prepared to give that commitment. As this is being kept on the table, people have a right to ask why. It is impossible not to conclude that the sole reason is to use it as a bargaining point. Donald Trump may be gone, but his Tory partners are still here and still refusing to protect the NHS. Trump previously let the cat out of the bag when he said quite clearly that the
“NHS on the table in US-UK trade deal”.
So the Government fail to give peace of mind to those who are worried about their future and the future of our NHS, to those who work in it and to those who need it. Those concerned will see this Government approach negotiations and will have almost complete uncertainty about the Government’s intent, red lines or objectives, but there is an alternative and it is not too late to prove that wrong. Let us see this Lords amendment carried, as it would give that surety that the NHS is at least subject to Parliament’s decisions. Without this safeguard or any of the others that the Government have voted down, the NHS will always be on the menu. Given the monumental effects on society and the communities we serve, modern democracies should always have full scrutiny of trade agreements, from the scope of the negotiating mandate right through to the implementation. Without this Lords amendment, the CRaG provisions amount to little more than a “take or leave it” choice to the House. That is and always should be absolutely unacceptable.
Lords amendment 3B deals with genocide and is a welcome step towards a wider discussion of how the UK seeks to act pre-emptively in preventing atrocities around the world. With respect to the effect of this amendment, the Government will claim that the amendment is, in some way, problematic—they have given their response on that already—but in that case people have the right to expect them to come forward with their own proposals for dealing with this. Instead, what we see today is that they have tried to gerrymander the votes on this to avoid further scrutiny. They really are a disgrace. Why not take the opportunity to ensure that our trade policy is always compliant with our moral and legal responsibilities under international law, and that deeply held values and convictions can always be brought to bear on public policy through ensuring that the resources and power of Government are always pulling in the same direction? It can only be that they are determined to keep the door open for regimes with immoral human rights records.
The SNP backed measures to outlaw such deals last month and we will support these efforts again notwithstanding the simple fact that, even here, there should be much greater ambition on the Lords amendment. The principle, however, of revoking a trade deal with a state committing such heinous crimes is beyond reproach and I commend it to those on the Government Benches who, I know, are carefully considering this amendment.
It is clear that, in continuing to ignore the needs of the people of Scotland, this Government are simply proving the point that, as each day follows another, the only way to make sure that Scotland’s families, workers, businesses and communities will get the protection and the global outlook they want and deserve is through Scotland becoming an independent country and taking these decisions for themselves.
I yield to no one in my detestation of genocide and I yield to no one in my admiration for the domestic courts of the United Kingdom. Despite the good intentions of Lords amendment 3B, it has to be faced that it has a fundamental flaw, in that it brings the domestic courts of the United Kingdom into areas where, constitutionally, they have never sought to go.
When we refer to the competent courts in relation to genocide, it is abundantly clear from the convention and subsequent legislation that we refer to the international courts and, in certain circumstances, the criminal courts of the United Kingdom in relation to individuals who are within their jurisdiction. That is wholly different from what is proposed in Lords amendment 3B, which brings the civil courts of the United Kingdom into a wholly novel area of jurisprudence, linked only to one specific issue, which is genocide in contemplation of a trade deal, not more generally.
The decisions on trade deals are constitutionally entirely matters for Parliament. That is why, despite the best endeavours and intentions of the amendment, I cannot support it and why I brought forward the amendment in lieu in my name, supported by three former law officers of the Crown. This would enable Parliament to express a clear view and would, inevitably, in real political terms, enable it to block a trade agreement with a genocidal state, because no Government could ignore that, but it would do so at the end of a parliamentary process. This would then give the appropriate Select Committee greater powers than Select Committees otherwise have, because they will be entitled not only to demand as a matter of law that the Government table the motion that they require if they are dissatisfied with the Government’s response, but to write the wording of the motion. This goes further than the powers that Select Committees have at the moment. That would be most important, as it would enable us to have a proper lock on the matter. We must not allow the courts to be dragged into an area where they have not themselves sought to go. We saw the wholly unfair and unjust criticism of our courts in cases such as the Miller litigation. To place them in this situation, where they will be obliged to step beyond what is the normal constitutional balance, would not be fair on them. They would not be in an easy position to come to a determination, as has been pointed out. Above all, it would inevitably be inviting them to trespass into areas that are highly politically contentious.
I want to have a means of scrutinising future trade deals. That is why I have much more sympathy for Lords amendment 1B than I have for Lords amendment 3B, because that would give a means of dealing with it. Lords amendment 3B, it is misconceived because of that misunderstanding in relation to what a competent court is and the need not to stretch that beyond our constitutional practices—
Genocide and grave human rights abuses are the most horrific and wicked crimes a state can commit, and those who perpetrate such crimes should be held accountable by this Government and the entire international community. Let me be absolutely clear: they are not internal issues, as Ministers often claim, but international issues. The Government should therefore be using the trade deals they negotiate with other countries as a means of strengthening our human rights commitments, as I advocated during the passage of the Bill last year.
Yet despite so many Members from across the House agreeing that trade deals should at least uphold our human rights obligations, Ministers have shown that they believe otherwise, defeating by the slimmest of margins the amendments that would have prevented them from signing trade deals with genocidal states, and proposing today a counter-amendment that is a pale imitation of what we should be doing as a country. In acting this way, they risk further emboldening those who continue to commit serious crimes against humanity. We have, sadly, already seen where refusing to take strong action against the Burmese military for their genocide of the Rohingya, for example, leads.
The bottom line is that we should not be signing any trade deal with any state that is committing any crime against humanity. Turning a blind eye and doing business with the very regimes that torture, abuse and kill others will sign away any moral authority that we have to call ourselves defenders of human rights, to enforce sanctions against abusers, or to advocate for stronger protections. However, while the Government’s previous vote against the amendments and the amendment they propose today are bitterly disappointing, they are sadly not surprising. On far too many occasions, I have urged them in Parliament to act against those committing human rights abuses and genocide, including in Kashmir. I have repeatedly called for action to protect Kashmiris from the persecution, oppression and injustice that they face on a daily basis at the hands of the Indian armed forces, only for Ministers to utter warm but meaningless and hollow words while the sons and daughters of Kashmir continue to suffer.
Trade is one of the few tools that we have left, in an interconnected, globalised world, to pursue a foreign policy based on protecting human rights. We must therefore take strong action in this Bill to show that we value human rights and that we will stand up for the many persecuted and oppressed peoples around the world.
Let me start with the amendments on genocide. The revised amendment 3B deals with some of the deficiencies of the original, but not, I am afraid, all. I still have the concerns that I have expressed previously about how the judicial process that it sets out will work in practice and about what a High Court judgment in such cases will really mean. I also think that the concerns that others have expressed about the effect of a finding that genocide has not taken place are well founded.
This may be strange thing for a former Attorney General to say, but I wonder whether we are getting too hung up on the judgments of courts. It is true, of course, that Governments have routinely relied on the courts to make a formal finding of genocide when guilt must be proven to a required legal standard, but we are discussing trade negotiations, not criminal convictions. In that context, if we have good evidence that genocide or anything like it is being committed by the country with which we are proposing to do a trade deal, we should retain the right not to do that deal with it, whether there is a formal judicial determination of the specific crime of genocide or not.
That is why I support the amendment in the name of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). Under that amendment, the trigger for a parliamentary vote is not a court ruling, with all the difficulties and pitfalls that brings, but rather the much lower bar of credible reports of genocide. That means that, unlike under amendment 3B, we can decide to refuse a trade deal with a country we believe has engaged in genocide despite the absence of a court ruling that it has done so. That is, in effect, a higher standard of human rights protection than that proposed in the amendment from the other place.
The judgment of Parliament on potential trade deals is important, and it is important that our judgment is exercised at the appropriate time in the negotiating process. For me, that means that Parliament should have its say when a negotiating mandate is being drawn up, not solely when the deal is done. However, I have two problems with Lords amendment 1B, which provides for that.
The first is the argument I have previously accepted that this Bill is not the place to determine how new and subsequent trade deals should be dealt with. However, the Government have done some of that themselves in their amendments in lieu of Lords amendment 6B and the read-across to future trade deals. By the way, I warmly welcome the content of those amendments, not least because they reward the determination of the noble Baroness Kidron and others in the other place in adding the protection of children and vulnerable adults online to the list of those areas where existing protections should be maintained.
My second concern is with the reference in Lords amendment 1B to the consent of devolved Administrations to trade deals developed in a reserved area of policy, as opposed to the full consultation that is clearly appropriate. Other than that, I support that amendment and would have voted for it this afternoon, and I hope that the Government will move in its direction.
It is good to have this debate, although I am afraid it is a bit too short, as I think most Members would accept.
When it comes to trade deals, Parliament really needs to debate beforehand. One of the things we know from the little interaction we have had with negotiators is that it is much better for them to know what Parliament is thinking; it strengthens their hand in negotiations to understand what they might get through Parliament at the end of the day. That is hugely important. It is also important for them to hear the concerns of 650 people who represent the geographical area that the trade deal will be a huge, integral part of and will affect. I would caution that what happened before Christmas, with the rush of the European trade deal, is a lesson that Parliament should think and not rush.
There is, of course, within any Executive—any Government—a feeling that they do not want scrutiny, they do not want to discuss, and they do not want to pause, reflect and think again, but for the good of everyone concerned, they should do that. Parliament treats itself as a sausage factory; it gets things done and through, and that is the end of it. However, at the end of the day, as the shellfish exporters, the poultry exporters and many others in the UK know, once Parliament has washed its hands of it and walked away, other people have to deal with the text at hand. They cannot deal with that text very well if it has not been thought about, reflected upon or given due scrutiny.
In Parliament, we talk a lot about trade deals, but do we realise the GDP size we are talking about? That is something we can lay out beforehand. Leaving the European Union will cost the UK about 4.9% of GDP. The best of the upcoming trade deals that we are looking at will make only a fraction of that back—with New Zealand and Australia, probably about a fiftieth of it. Are people aware of that?
During the negotiations on the Japan trade deal, the International Trade Committee could not get access to the right level of negotiators. It was only at the end that we understood the pass we were sold on tariff rate quotas, where the UK accepted playing second fiddle to the European Union; after the European Union had dined with Japan, the UK could then perhaps go to the table for the crumbs. We were not aware of that at all during the negotiations. Parliament has to look a bit better. We have to trust our Select Committees, improve access, and have debate beforehand and afterwards. As for the point that Parliament has much power with the CRaG process, frankly, that is just not true.
The best the Government could do at this stage would be to adopt Lord Lansley’s amendment 1B. That would be a huge help from the point of view of the Select Committee and Parliament, and the Government should have the humility to do that.
I wish to make only three brief points. First, the House of Commons is the appropriate place to scrutinise the elected Government’s independent trade policy. That is why I am against Lords amendment 1B, because it actually gives powers away from the House of Commons. The amendment requires the House of Lords to give its permission for the elected Government to even have discussions on our future trade policy. I cannot believe that the Labour party’s position is to give the House of Lords a veto on what an elected Government in the House of Commons should or should not be able to do. I wonder sometimes whether this House is having some sort of collective democratic nervous breakdown, because it seems always to want to give its powers away to someone else.
As I said last time, I do not believe that the courts should have a say on the elected Government’s trade policy, either—whether prospectively or retrospectively—or on what we debate in Parliament. When it comes to the issue of genocide, what matters is what we do about credible accusations of genocide. We should not be waiting for judicial confirmation through the Trade Bill. We can assess evidence, assess intelligence and listen to eyewitnesses ourselves. Frankly, if we want to take action in response to the Chinese Communist party’s treatment of the Uyghur people, we should do so. We have given ourselves new powers. But the Trade Bill is not the appropriate place to deal with that issue.
On the impact, we are talking not about stopping trade with China or stopping companies doing trade deals with suppliers in China—the use of sloppy language that fails to differentiate between trade deals and free trade agreements, which are a different legal entity entirely, does not help the quality of the debate—but we do have a perfect right to take into account any state’s behaviour when it comes to a future free trade agreement, and our ability to do so is limited. I campaigned to leave the European Union because I wanted powers brought back from Brussels, but I wanted them brought back to this place, not given straight back to the Executive to exercise them on our behalf. When I was Secretary of State, I wanted to see Parliament given a vote on new trade agreements, as the previous Speaker would have attested. I still believe that that is most appropriate at the beginning, at the setting of the mandate, because if Parliament can agree then on the direction of travel, we are less likely to have the sort of misinformation that we had on the transatlantic trade and investment partnership and the ridiculous scare stories that we heard from the SNP spokesman today. If we do not have the ability to vote at the beginning of the mandate, it makes the CRaG process less credible.
The Government are making a rod for their own back. Today we have an opportunity to give power back to the House of Commons—not the House of Lords, not the courts, not the Executive. We should show a little bit of courage and faith in our own institution.
Today was intended to be a historic vote on a simple question: can we give effect to the Government’s own policy that genocide determination is a judicial matter, allowing us to assess whether our trading partners are committing that most heinous of crimes? Yet that most serious question—the destruction, rape, sterilisation, brainwashing and killing of an entire group of people from the face of the Earth —cannot be answered today. We have been denied a vote on the genocide amendment, which was improved to meet the Government’s objections—an amendment so powerful that it secured a majority of 171 in the other Chamber—and was on course to win the backing of the House today.
I am appalled at the parliamentary games played over such a grave issue, but we will not let the principle go away. We will do everything we can to ensure that we are not trading with genocidal states. Let us remember that it is the Government’s position, not mine, that genocide is for the courts. The Foreign Secretary said last month, “Whether or not it amounts to genocide is a matter for the courts”. The Prime Minister, last month, said that
“the attribution of genocide is a judicial matter”.—[Official Report, 20 January 2021; Vol. 687, c. 959.]
Why, then, is a meaningless amendment being backed that demotes this to the level of a Select Committee—and it has been rejected by a Select Committee—and deliberately excludes the Uyghurs and China? We are outsourcing genocide determination to the UN, which is handcuffed by China and Russia. Why not bring that back home? Why not take back control, in line with the Government’s own policy?
Will my hon. Friend reflect that the Government’s complaints that the previous amendment was flawed were taken into consideration such that under the current amendment the court would make a preliminary determination only, and it would be for the Government and Parliament to decide what to do about it at any stage?
Indeed. Some colleagues have said that we have bent over too much and that there is too much power with the Executive, but we have separated the power: the courts determine genocide, Parliament opines and the Executive are in charge.
We are unsure what the objections are now. I tabled a question to the Government to ask who determines genocide, and the response was:
“The determination as to whether a situation constitutes genocide is factually and legally complex and should only be made by a competent court following a careful and detailed examination.”
That means that any Select Committee paper would be rubbished.
The values of our country do not include enriching ourselves on the back of slave labour or using our new-found post-Brexit freedom to trade with states that commit and profit from genocide. Britain is better than that. Last week, the Board of Deputies of British Jews highlighted the plight of the Uyghurs and the chilling similarity to Nazi Germany: 2 million Uyghurs are in prison camps. The late Rabbi Sacks was once asked where God was when the holocaust took place. He responded that the real question was: where was man?
Let the record show that, on this day, men and women in this House were ready to vote on the genocide amendment, to lead the world in standing up to tyrannical regimes that commit genocide, to honour our vow of “never again”, to ensure that we are never complicit in genocidal trade, and to put Britain on the right side of history. Today, we were denied that vote, and this House was denied its say.
This country should never trade with any country where genocide is being practised. We are as guilty as others when we seek to perpetuate that kind of trade. It is appalling that all five signs of genocide incorporated in the genocide convention are now present in China in Xinjiang province, and that President Xi is personally implicated.
It is no use us clasping our pearls, signing holocaust memorial books or weeping about genocide in the 1930s if we are not prepared to do every single thing that we possibly can today to protect the vulnerable. That means wielding every single instrument, national and international, commercial and diplomatic, to protect the victims of abuse. We failed for far too long because we delayed in the 1930s and ended up having to go to war. Their humanity is our humanity; we are involved in their lives and in their deaths.
China already makes it impossible for us to act in an international court or any international body, so of course we should use the UK courts. I say to the Chair of the Justice Committee that Lord Hope of Craighead made it absolutely clear that a preliminary determination of genocide should be located within the High Court precisely because it is not a criminal process. That is the whole point of the amendment. It should be the courts, not politicians, that make these decisions because they know how to sift evidence and are able to require witnesses and evidence to be brought before them.
I saw the amendment that has been presented, supposedly by the Chair of the Justice Committee, last week; it was very definitely a Government amendment long before it appeared on the Order Paper. It is as tawdry a piece of parliamentary jiggery-pokery as I have seen in my 20 years in the House. Select Committees already have every single one of the powers that are supposedly being given to us by the amendment. The Government already dismisses every single substantive motion agreed by the House if they just do not like it. They did so on the Yazidis, when the House’s view was unanimous, and they did so on the Foreign Affairs Committee reports on the Rohingya.
By constructing the amendment in the way they have, the Government have deliberately denied the House a clear vote on genocide and how we would like to tackle it in relation to trade. The bottom line is that the Government seem to do everything in their power to prevent us as a nation from standing clearly and unambiguously against human rights abuses in China, and up with this we will not put.
Let me cut right to the chase: free trade is too important to end up with consequences being felt elsewhere. The Lords amendments are noble. I agree: China risks perpetrating atrocities of oppression, torture, sterilisation and the incarceration of people just because they have the cheek to want to be a different type of person or think something different. Its ideology and its ideas are failing, and the people will rise up.
However, I fear that the Lords amendments would have unintended consequences. Genocide in other countries is hard to prove in our courts. It is hard to get witnesses to come to speak. We have no power to compel hostile Governments to appear before our courts. What happens if a judicial procedure or a court finds that there is not enough evidence to prove genocide? Cue the lies, manipulation and crowing that would come from a dictatorship. “Fake news” is what they would describe from their machine. “The British courts have cleared us,” would scream the headlines. Who have we helped then? Nobody. Parliament can investigate and vote. We can and should decide, and I will be supporting the Government amendment proposed by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and the Secretary of State.
I was happy to take interventions earlier, but I will try now to respond to the points raised in the debate. First, I want to clear up the question about parliamentary procedure that a few Members have raised. As you will know, Mr Deputy Speaker, it is a long-standing convention for amendments to be packaged during ping-pong in this way. “Erskine May” states that
“the practice has developed in the later stages of the exchanges between the Houses of grouping together as a ‘package’ a number of related amendments for the purposes of decision as well as debate.”
Secondly, the right hon. Member for Islington South and Finsbury (Emily Thornberry) talked about the standards amendment only being backward-looking. She is relatively new to the Bill. I have been involved with the Bill for four years—too long, some might say. The whole Bill is about continuity trade agreements; that is the point. I also note that she has not always been so strong on China. In her very first contribution as the shadow Secretary of State for International Trade on 12 May 2020, she asked the Secretary of State whether the trade talks she was pursuing with the United States
“would constrain the UK’s ability to negotiate our own trade agreement with China”—[Official Report, 12 May 2020; Vol. 676, c. 111.]
So there we have it—the Opposition are clearly quite keen on a trade agreement with China.
As for the SNP, the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) says again that he supports free trade and rejoining the European Union, and again he praises EU trade agreements, but as we all know, the SNP has not supported a single one of those EU trade agreements. It is against Canada, it is against Korea, it is against South Africa, and it abstained on Japan.
We have heard excellent, heartfelt contributions from my hon. and right hon. Friends. We heard passionate arguments in particular from my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and my hon. Friend the Member for Wealden (Ms Ghani), and from those who know the court systems well: my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright) and my hon. Friend the Member for South Ribble (Katherine Fletcher).
The point is this: it is a matter for Parliament to decide what should come before it. That is why the Select Committee is the right and proper place for this, not the courts. The Government share Members’ concerns when it comes to Xinjiang. That is why the Foreign Secretary announced stepped-up measures last month, including ones relating to trade and supply chains. But today’s debate is not about whether there is a genocide in Xinjiang. It is about who triggers a debate in Parliament on whether there are credible reports of genocide.
As the former Attorney General, my right hon. and learned Friend the Member for Kenilworth and Southam, said, the amendment in the name of the Chair of the Justice Committee is more human rights-friendly than the Alton amendment because it allows Parliament to look at credible reports of genocide—it does not have to prove whether there has been a genocide—which will lead to a vote on whether we should be carrying out trade talks with that country. That is a much better position, and I therefore urge all Members to back that amendment.
One hour having elapsed since the commencement of proceedings on the Lords message, the debate was interrupted (Programme Order, 19 January).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83G), That this House disagrees with Lords amendment 1B.
I remind the House that, following Mr Speaker’s recent announcement, where second and subsequent Divisions take place on the same item of business, the doors will normally be locked after five minutes, rather than eight—that is, after eight minutes on the first Division and after five minutes for each subsequent one.
Lords amendment 1B disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Amendments (a) and (b) proposed in lieu of Lords amendments 2B and 3B—(Greg Hands.)
Question put, That the amendments be made.
Amendments (a) and (b) made in lieu of Lords amendments 2B and 3B.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Amendments (a) to (c) proposed in lieu of Lords amendment 6B.—(Greg Hands.)
Question put, That the amendments be made.
Amendments (a) to (c) made in lieu of Lords amendment 6B.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Motion made, and Question put forthwith (Standing Order No. 83H), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendment 1.
That Greg Hands, Maggie Throup, Leo Docherty, Emily Thornberry and Patrick Grady be members of the Committee.
That Greg Hands be the Chair of the Committee.
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Mike Freer.)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.