Trade Bill

Consideration of Commons amendments
Tuesday 23rd February 2021 Lords Chamber

Commons Reasons and Amendments

Relevant document: 15th Report from the Constitution Committee

13:30

[The Deputy Speaker (Lord Alderdice) (LD)]

My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing. I will call Members to speak in the order listed. As there are counterpropositions to each of today’s Motions, any Member in the Chamber may speak on each group, subject to the usual seating arrangements and the capacity of the Chamber. Any Member intending to do so should email the clerk or indicate when asked. Those Members not intending to speak on a group should make room for those who do. All speakers will be called by the Chair.

Short questions of elucidation after the Minister’s response are discouraged. A Member wishing to ask such a question must email the clerk. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment to a Division must give notice in the debate or by emailing the clerk. Leave should be given to withdraw Motions. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wishes their voice to be accounted for if the Question is put, they must make this clear when speaking on the group. Those noble Lords who are following the proceedings but not speaking may submit their voice, as Content or Not-Content, to the collection of their voices by emailing the clerk during the debate. Members cannot vote by email; the vote will be taken by the remote voting system.

Motion A

Moved by

[Lord Grimstone of Boscobel]

That this House do not insist on its Amendment 1B, to which the Commons have disagreed for their Reason 1C.

1C: Because Parliamentary scrutiny of trade agreements is ensured by existing measures and UK standards cannot be changed without further implementing legislation (itself subject to Parliamentary scrutiny).

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, with the leave of the House, I will speak also to Motion A1. I will start by addressing Amendment 1D on the Order Paper, in the name of my noble friend Lord Lansley, concerning the parliamentary scrutiny of trade agreements. This is a revised agreement of the previous two that the Commons have decisively rejected. As I have made clear in my previous remarks on this important issue, Parliament plays a vital role in scrutinising our trade agenda. This is a role that we welcome and appreciate. As the United Kingdom embarks on its independent trade policy, it is right that Parliament should be able to hold the Government to account effectively.

The Government have taken steps to ensure that we have robust transparency and scrutiny arrangements in place that reflect our constitution. Noble Lords will be familiar with these by now, I trust, so I will touch on them only briefly. On the new free trade agreements that we are currently negotiating, the Government have provided extensive information to Parliament, including publishing our negotiating objectives, the economic scoping assessments and the Government’s response to the public consultation prior to the start of talks. Throughout the negotiations the Government continue to keep parliamentarians informed of progress, including by holding regular briefings. The Government are also engaging extensively with the relevant Select Committees throughout.

We have also agreed to share the text of each deal with the relevant committees in advance of their being laid before Parliament under the CRaG procedure; they 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, the CRaG procedure provides an additional layer of scrutiny. Through this, the other place can prevent ratification indefinitely.

I am well aware of the strength of feeling and the proper interest that the House is taking in these matters, and I have had a number of very useful conversations with noble Lords. I know in particular that my noble friend Lord Lansley would be grateful for some further reassurances beyond what I have said already, and I am happy to state the following.

First, where we publish negotiating objectives for future free trade agreement negotiations, I am sure that this House will rightly and properly take an interest in their contents. If the International Agreements Committee should publish a report on those objectives, I can confirm that the Government will gladly consider that report with interest and, should it be requested, facilitate a debate on the objectives, subject to the parliamentary time available. That is an important concession.

Secondly, on FTAs as part of CRaG, the Government have stated clearly that we will work to facilitate requests, including those from the relevant Select Committees, for debate on the agreements, subject to available parliamentary time. Indeed, the Government have a good record on this. Debates took place last year on the Japan FTA, alongside six other debates on continuity agreements. But to provide reassurance to noble Lords, I would like to state from the Dispatch Box that I cannot envisage a new FTA proceeding to ratification without a debate first having taken place on it, should one have been requested in a timely fashion by the committee. The Government are negotiating world-class agreements and we will proudly promote the benefits of our trade agenda; of course, debates are a good way of doing that.

With all due respect, I feel the need to stress that the elected House has now rejected amendments on parliamentary scrutiny in this Bill and its predecessor a total of five times, most recently by a margin of 75. This House has repeatedly offered tweaked and tinkered amendments on the subject, but regardless of their guise, I have to say that the other place has resoundingly and repeatedly rejected them. I say that with no disrespect whatever, but as a reminder that this House has fulfilled its constitutional obligations and we should be grateful for that. I thank colleagues from across the House for their diligence, but I believe that the time has now come to try to put this issue to bed. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Lansley]

At end insert “, and do propose Amendment 1D in lieu—

1D: After Clause 2, insert the following new Clause—
“Parliamentary approval of international trade agreements and treaties
(1) If a decision has been made by the Secretary of State to commence negotiations towards a free trade agreement, a statement must be made to both Houses of Parliament.
(2) Negotiations for that trade agreement may not proceed until the Secretary of State has laid draft negotiating objectives in respect of that agreement before Parliament, and a motion endorsing the draft negotiating objectives has been approved by a resolution of the House of Commons.
(3) The Constitutional Reform and Governance Act 2010 is amended as follows.
(4) In section 21 (extension of 21-day sitting day period), after subsection (2) insert—
“(2A) Where a relevant Committee of either House of Parliament has recommended that a treaty constituting an international trade agreement as defined by the Trade Act 2021 should be debated in that House, the Minister of the Crown must ensure that the period does not expire before that debate has taken place.”””

[Lord Lansley (Con)]

My Motion A1 would insert Amendment 1D in lieu—it is on page 4 of the Marshalled List—which would do two things. It would require a debate on draft negotiating objectives in relation to future international trade negotiations where such a debate has been requested, and that Ministers would not be able to proceed with negotiations until such a debate had taken place. It would also require that where a relevant committee of either House seeks a debate under CRaG within the 21-day period, that period should be extended until the debate has taken place.

Noble Lords will recall that on two previous occasions this House sent amendments requiring additional parliamentary scrutiny to the other place. On each occasion, they were supported on a cross-party basis. I am very grateful for the support that I have received from all sides of this House for this purpose. In the other place, 11 Conservatives supported the amendment on the first occasion, while 13 supported it on the second occasion, and although they did not vote for it, both Liam Fox, the former Secretary of State for International Trade, and Jeremy Wright, the former Attorney-General, expressed support in particular for the proposition that there should be a debate on the negotiating objectives at the commencement of plans for an international trade agreement.

In preparing the amendment in lieu, we intended to narrow down simply to those two points, leaving out—not because they are not important but because we believe that the Government have already given assurances on this—first, that the Government would publish in their Explanatory Memoranda under CRaG details of the legislative implementation of any agreement and, secondly, that in the negotiating objectives they would consult with the devolved Administrations. Given those two issues, let me say how much I appreciate the support that I have received in this House and the constructive and helpful conversations that I have had with the Minister and the Bill team. I appreciate the positive way in which they responded.

Noble Lords will have heard the Minister say two things that are, from my point of view, of great importance: first, that where the International Agreements Committee, of which I have the privilege to be a member, makes a report on the Government’s draft negotiating objective for an agreement, the Government will facilitate such a debate; and secondly, that where a debate has been requested under CRaG within the 21-day period, Ministers will not ratify such an agreement until such time as the debate has taken place. In both respects—speaking as a former leader of the House of Commons, I should say that the Minister has, quite properly, reserved the position of the business managers—these things would happen only when parliamentary time allowed.

These assurances go a long way to meeting what we have been asking for. They are not technically everything that we are asking for. There remains a significant loop- hole: if a debate under CRaG takes place after the 21-day period has expired and Ministers have not sought an extension to that period, which they can do, then, strictly speaking, even if the other place passed a Motion that ratification should be delayed, there would be nothing legally to stop Ministers proceeding to ratification or, indeed, ratifying it before the debate took place.

Given what the Minister has said, I think we have moved to a happy position where, if I can put it in the context of this House, we have moved from what has been up to now, particularly where CRaG is concerned, conventional—that is that Ministers should not ratify until a debate has taken place and should legislate for implementation before ratification—to what I might think of as a rule. It is not in statute but, in the same way that the Ponsonby rule existed for quite a long time before the CRaG legislation was passed, we have now acquired—if he will forgive me—the Grimstone rule for debate on negotiating objectives and for ratification not to take place before a debate has taken place under CRaG where requested. So I am most grateful to my noble friend. I am especially grateful to the noble Lord, Lord Stevenson of Balmacara, and to the noble Lord, Lord Purvis of Tweed, particularly because a debate on the negotiating objectives was in his original Amendment 1, which was sent to the other place with the Bill when it left this House in the first place. I hope that he and other noble Lords will join me in expressing satisfaction at the outcome that has been achieved.

[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Baroness, Lady Jones of Moulsecoomb, has indicated that she wishes to speak in the gap prior to the rest of the listed speakers.

13:45

[Baroness Jones of Moulsecoomb (GP)]

I had not realised that there would be so few speakers in this debate; I would have written a much longer speech.

I try not to be rude when I speak in your Lordships’ House but sometimes it is incredibly difficult. I find it incredibly difficult to understand how the Minister kept a straight face while reading out those first couple of paragraphs about how the other place has rejected all our amendments and so on. It has not. The Government have let power go to their head. They have an 80-plus majority and think that they can just boot out everything that they do not like. I am afraid that that is just not true. We have spent four years working on this Trade Bill. For four years, we have been negotiating with Ministers and trying to make the Bill better, and it has been scrapped each time. Now it has come back and I am afraid that we are digging in our little pink trotters on some aspects. Telling us that it has been rejected endlessly by the other place does not wash.

I will go back to my speech now. Quite honestly, it is our responsibility to reject legislation that is inadequate or unlawful. That is our job. The Government expect us just to back down all the time because of the electoral majority but that will not happen. To think that you can bring a Trade Bill here with a sort of take-it-or-leave-it deal is neither believable nor credible. We should pass this amendment. I congratulate the noble Lord, Lord Lansley, on moving it and believe that the Government should not oppose it in the Commons.

[The Deputy Speaker (Lord Alderdice) (LD)]

Does anyone else in the Chamber wish to speak? No? We will move on to the listed speakers. I call the noble Lord, Lord Purvis of Tweed.

[Lord Purvis of Tweed (LD)]

My Lords, I, too, thank the noble Lord, Lord Lansley, for moving this amendment and allowing us to debate this issue. I will turn to that in a moment.

When the noble Baroness was speaking, I reflected on the constitution arrangements that we have. I think that she and I both favour change in our constitution to change the mechanism of appointment to this place and make it a fully democratic House. Nevertheless, in his remarks the Minister referred to having trade scrutiny and decision-making that is appropriate to our constitutional arrangements. Our constitutional arrangements say that this is a revising Chamber, and we are doing our duty in asking the Government to think again. When the House has voted by large majorities on every occasion that it has debated scrutiny amendments in either my name or that of the noble Lord, Lord Lansley, it has made its view plain. It is therefore incumbent on the Government to reflect on that, not simply to exercise the Whip.

One of the votes that the Minister referred to tested this point slightly. Last time round, the other place was not asked to have a separate vote on these amendments because, in the way that they scheduled all this, the Government bundled them all into one. Members of the Commons with a particular view on scrutiny, human rights, genocide or anything else were asked to support or oppose the Whip in one particular vote. I do not think that that reflects very well on the way in which the Government have approached the Trade Bill and these stages.

However, as people more famous than me have said, we are where we are. I thank the noble Lord, Lord Lansley, for his work on getting us to this position. I have enjoyed working with him, the noble Lord, Lord Stevenson, and others. It has genuinely been cross-party work. I also share the thanks expressed by the noble Lord, Lord Lansley, to Jonathan Djanogly and others in the House of Commons for their work. In many respects, they have been courageous. Consistently voting or making a case against one’s own Government is a courageous thing in politics, but they are doing it out of a great sense of sincerity that going forward trade agreements for the UK are now deep and comprehensive by definition and touch on very wide aspects across public policy and regulation and therefore for parliamentary scrutiny to be effective, it should inform debate, and if accountability is to be operable, that debate should lead to votes. Ultimately, that is the approach about which we have sought to persuade the Government.

There have been indications of the Government being more flexible in certain areas. This is an interesting Bill which, as the noble Baroness said, has taken so long. A White Paper about trade policy appeared and disappeared mid-Bill; there has been no successor to it. The words of the Minister today are helpful and we now have the Grimstone rule, which is that ratification of a new trade agreement will not take place without a debate. That is important. It is not as much as I wanted or as much as the Government were going to give us at the start of this process, many years ago, but this is the third Minister who has handled this Bill and it is third time lucky, as far as the commitment that we will at least be able to vote on the agreements coming up.

There had been a rule for treaty ratification called the Ponsonby rule. It was replaced by statutory provision, because we were not satisfied that simply a ministerial rule, commitment or convention would be appropriate. While we may be putting this issue to bed in this Bill, at this moment, the issue has not been put to bed. Other Bills in the future will do as we did with the Ponsonby rule, which was to put it on a statutory footing. We will have to live with the Grimstone rule for the moment. It is perhaps, shall we say, a tweaking of the Government’s position. Nevertheless we accept it for the moment, as the House was clear, in all its votes, that more scrutiny, accountability and debating are required. I assure the Minister that we will come back to this at other times.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank the Minister for his comments and the noble Lord, Lord Lansley, for moving his Motion 1D on a cross-party basis. I put on record, as he did, how enjoyable it was to work with him, the noble Lord, Lord Purvis, and Commons colleagues of all persuasions to see whether we could progress this important issue. Although I have some sympathy with the comments made by the noble Baroness, Lady Jones of Moulsecoomb, I agree with the Minister and others who have spoken that the speeches we have heard draw discussions on the parliamentary scrutiny of international trade deals to a close, for the moment. This issue will not go away, although I believe that the Grimstone rule—if that is what we are to call it—will help us to work through a process to consider trade agreements in the future. That is for the good.

I will make three small points. First, it is difficult to make constitutional change. Anybody who has operated in either House of Parliament knows that to be the case. It should be hard—and it is right that it is—but it is sometimes frustrating if the pace of change does not match some of the aspirations and recognise some of the wrongs committed. As the noble Lord, Lord Lansley, said, although we have not managed to set in statute that which a significant majority in this House, across all parties, would have liked, we have agreed a way of working with the Government for the future—the Grimstone rule—that strikes a workable balance between the rights and responsibilities of the Executive and those of Parliament. Time will tell. We are in the right place and no doubt will benefit from the experience to be gained in the next few years, but we should record that progress has been made.

Secondly, one key turning point to have emerged from the discussions is the need to ensure that we have a process, in any future agreement that we might make, which properly engages the devolved Administrations and civil society—and on a sensible timescale. I will come back to that. This Parliament will now need, in the way that it works, to address four major points in any future statutory system, although they will be covered by the Grimstone rule: approval of the initial objectives, review of the progress of negotiations, considerations of the final proposed agreement including changes to existing statutory provisions, and parliamentary approval of the deal and any subsequent changes to legislation that may be required. We have analysed that to the nth degree in our discussions during the last four years; now we have a model for how it can work. If there is good will on both sides, as I think there is, we should let that run for a while before returning to it.

My third point, on which I will end, is that in these debates over the last four years we have made it clear that UK trade policy and the trade deals that will be the basis of our future activity and prosperity are important. They deserve the sort of focus and interest envisaged under the protocols described as the Grimstone rule. We can be confident that, with the work of the Select Committees in the Commons and the International Agreements Committee in the Lords complementing the interests of a range of other bodies, including devolved Administrations and civil society, that debate will continue to be an important aspect of our public policy.

Finally, although we have gone as far as we can on this today, we will keep a close eye on it and look forward to resolving outstanding issues in the not- too-distant future. We have worked closely with the Government and with successive Ministers. I thank the noble Baroness, Lady Fairhead, and the noble Lord, Lord Grimstone, for their engagement since 2017. We have built a coalition of interest across parties in this and in the other House, which has been rewarding, positive and a model for how issues of this nature can be resolved in the public interest.

[Lord Grimstone of Boscobel (Con)]

My Lords, I first unreservedly apologise if noble Lords thought that I was, in any way, disparaging the role of this House and the valuable work that it has done on scrutiny, by referring to the votes in the other place. Nothing could have been further from my thoughts, and I hope that noble Lords will accept that.

This has been a good debate and reflects the calibre of discussions that we have repeatedly had on the important issue of scrutiny. The Government have listened to the concerns expressed on this issue and we have moved significantly to set out enhanced transparency and scrutiny arrangements for free trade agreements. This has come almost entirely because of the quality of the debates and the points that have been put by Members of our House.

What have we done? It includes committing to allow time for the relevant Select Committees to report on a concluded FTA before the start of the CRaG process; strengthening the commitments, as I said earlier, which were set out before this debate in a Written Ministerial Statement; and placing the Trade and Agriculture Commission on a statutory footing and ensuring that it is required to transparently provide independent advice to the Government on whether new FTAs maintain statutory protections in key areas, such as animal welfare and the environment. In addition, the Government have moved on other linked areas such as standards, which we will come to later.

While this is the last time, I hope, that we debate this issue in this Bill, scrutiny is an issue that we will return to when we debate the implementing legislation for future FTAs. The EU model of trade agreement scrutiny evolved over our 50-year membership. I assure noble Lords that we have no intention of taking that long but now, in only month two after the transition period, I urge your Lordships’ House to see the current arrangements as an evolution of our trade treaty scrutiny practices—no doubt an evolution that has further to go. As we find our feet as an independent trading nation, working with parliamentarians in both Houses, I am sure that we will continue to build upon our scrutiny processes, in ensuring that they remain fit for purpose.

As a concluding comment, I would be covered in embarrassment to think that my small contribution to this debate has led to a rule being named after me.

[Lord Lansley (Con)]

I am grateful to my noble friend the Minister and to other colleagues who have spoken in this short debate. As the noble Lord, Lord Stevenson of Balmacara, said, good will has characterised these debates, and it can be sustained—even in the case of the noble Baroness, Lady Jones of Moulsecoomb. It was never with ill will; it was controversial sometimes, but always well meant.

From my point of view, with good will, and the application of the Grimstone rule—he cannot get away from it now—I welcome the specific additions today that the Government will facilitate a debate where requested on draft negotiating objectives, subject to parliamentary time, and that the Government cannot envisage the circumstances in which they would ratify an international trade agreement when a debate requested by the relevant committee in either House had not yet taken place.

14:00

These are important additions to what I think we all agree are substantive and helpful arrangements that we have already seen in practice with the Japan agreement. But, as we move from what are essentially continuity agreements to new trade deals, it was important for us to establish that in this legislation, and I hope that we have done so. With good will, that will serve us well. If it does not, as the noble Lords, Lord Purvis of Tweed and Lord Stevenson of Balmacara, quite rightly pointed out, there will be further legislation related to the free trade agreements to be implemented and we will return to that if these rules are not adhered to —but I hope that they will be. On that basis, I beg leave to withdraw Motion A1 in my name.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B

Moved by

[Lord Grimstone of Boscobel]

That this House do not insist on its Amendments 2B and 3B, to which the Commons have disagreed, and do agree with the Commons in their Amendments 3C and 3D in lieu.

3C: Insert the following new Clause—
“2A Free trade agreements and genocide
(1) Subsection (2) applies if the responsible committee of the House of Commons publishes a report which—
(a) states that there exist credible reports of genocide in the territory of a prospective FTA counter-party, and
(b) confirms that, in preparing the report, the committee has taken such evidence as it considers appropriate.
(2) If, after receiving a response from the Secretary of State, the committee publishes a report which—
(a) includes a statement to the effect that the committee is not satisfied by the Secretary of State’s response, and
(b) sets out the wording of a motion to be moved in the House of Commons in accordance with subsection (3),
subsection (3) applies.
(3) A Minister of the Crown must make arrangements for the motion mentioned in subsection (2)(b) to be debated and voted on by the House of Commons.
(4) Subsection (5) applies if the responsible committee of the House of Lords publishes a report which—
(a) states there exist credible reports of genocide in the territory of a prospective FTA counter-party, and
(b) confirms that, in preparing the report, the committee has taken such evidence as it considers appropriate.
(5) If, after receiving a response from the Secretary of State, the committee publishes a statement to the effect that—
(a) it is not satisfied by the Secretary of State’s response, and
(b) it seeks a debate on the report, subsection (6) applies.
(6) A Minister of the Crown must make arrangements for a motion for the House of Lords to take note of the report and the Secretary of State’s response to be moved in that House by a Minister of the Crown.
(7) References in this section to genocide are references to genocide occurring, or continuing, after this section comes into force.
(8) In this section—
“genocide” has the same meaning as in the Convention on the Prevention and Punishment of the Crime of Genocide (see Article 2 of the Convention);
“prospective FTA counter-party” means a state with which the United Kingdom is engaged in formal negotiations for a bilateral free trade agreement;
“the responsible committee of the House of Commons” means the select committee of the House of Commons charged with responsibility for this section;
“the responsible committee of the House of Lords” means the select committee of the House of Lords charged with responsibility for this section.”

3D: Title, Line 1, leave out “the implementation of”

[Lord Grimstone of Boscobel (Con)]

My Lords, in moving Motion B I shall with the leave of the House speak also to Motions B1 and B2.

I turn to Commons Amendments 3C and 3D on the Order Paper, concerning genocide and free trade agreements. This amendment was passed in lieu of amendments tabled by the noble Lords, Lord Collins and Lord Alton. Perhaps I may begin by clarifying some points of parliamentary procedure concerning these amendments. As noble Lords will be aware, the amendments in the other place were considered on 9 February as part of a so-called package with which the Government disagreed, supporting instead an amendment in lieu tabled by the chair of the Justice Select Committee.

The Lords amendments with which the Government disagreed concerned the most serious of human rights violations—namely, crimes against humanity and genocide. Both amendments sought to involve Parliament, in different ways, in considering the implications of such violations for trade policy, and both sought to impose a duty on the Government to act in specified ways. Accordingly, the Government supported an amendment in lieu which would have the effect of affording Parliament substantive opportunities for scrutiny, in precisely the manner envisaged by your Lordships’ amendments. That is the amendment before the House today, which the Government fully support.

The packaging of amendments is a common, long-standing parliamentary procedure which has come about to assist with the complexities of ping-pong. The practice of grouping together as a package a number of related amendments has developed in later stages of the exchanges between the Houses for the purposes of decision-making as well as debate. As any keen reader of Erskine May will attest, ping-pong is one of our most complex legislative stages. This approach allowed the Government to support the reasonable middle-ground concession now before your Lordships on the Order Paper, which ensures a clear role for Parliament where concerns about genocide are relevant to the UK’s negotiation of bilateral free trade agreements, without breaching the Government’s red line on the courts.

I will now say something about the role of the courts, as there has been some degree of misapprehension on this point in recent debate. Noble Lords have observed, quite rightly, that it is the Government’s long-standing position that the determination of genocide is a matter for a competent court. The question has now been posed on numerous occasions as to why the Government did not support the amendment previously tabled by the noble Lord, Lord Alton. It should be recalled that this amendment sought to expand the jurisdiction of the High Court—a civil court—to allow it to make preliminary determinations of genocide.

It is important to distinguish here between the crime of genocide as committed by an individual and violations of international obligations related to genocide that may be committed by a state. States can, for example, be responsible for genocide committed by an individual where that individual’s acts are attributable to the state. The UK has international obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the Rome Statute of the International Criminal Court, to criminalise genocide committed by individuals. Of course, we have done this in the International Criminal Court Act 2001.

In the UK, criminal courts are competent to try the crime of genocide where it is committed by an individual. Under the 2001 Act, domestic criminal courts in the UK are competent to find individuals guilty of genocide where the case is proved to the criminal standard of “beyond reasonable doubt”. UK courts can determine whether a genocide has taken place when an individual is charged with the crime, wherever the alleged genocide took place. Both UK nationals and residents can be prosecuted, including those who became resident in the UK after the alleged offence took place.

International courts such as the International Court of Justice are also competent to determine whether states have violated their international obligations in respect of genocide. However—this is the important point—the previous amendments from the noble Lord, Lord Alton, sought to give to a domestic civil court jurisdiction that it does not currently have to make preliminary determinations about the actions of foreign states. I will turn to the noble Lord’s Amendment 3E on the Order Paper before us today in just a moment, but first I will conclude these remarks on the Government’s position on the determination of genocide.

Let me be very clear on this point: the Government will not agree to expanding the jurisdiction of our courts to consider cases of state genocide. The Government’s position does not rest on any consideration of whether our courts have the capacity to determine such difficult cases; it is based on strong and very real concerns that expanding the jurisdiction of our courts in this way would bring about a change in our constitutional structures by the back door.

In today’s Amendment 3E in lieu, in the name of the noble Lord, Lord Alton, and similarly in Amendment 3F in lieu, in the name of my noble friend Lord Cormack, we are faced with a different approach. This approach seeks to give the power to make preliminary determinations on genocide to an ad hoc parliamentary committee, comprising five Members from either House, where those Members have all held high judicial office. It should be clear, for the reasons I have just outlined, that such an approach is also problematic, given that it conflicts with the Government’s settled policy on genocide determination that it is for competent courts to make determinations of genocide, not parliamentary committees —even, and I say this with the greatest respect, when they are composed of eminent and learned former judges.

The establishment of an ad hoc parliamentary judicial committee would represent a fundamental constitutional reform. It would blur the distinction between courts and Parliament and upset the constitutional separation of powers. Of course, establishing any new committee would also have implications in terms of parliamentary time and resources, and such a drawn-out process could continue for months or even years. While it is of course up to Parliament to decide how to organise its own affairs, establishing such a committee in legislation would amount to a constitutional reform that I have to say that the Government cannot accept.

Ultimately, the question of how we respond to concerns of genocide as it relates to our trade policy is a political question. Indeed, these Lords amendments envisage as their end point a political process to involve Parliament in holding a Government to account, and they would impose a legal duty on a Minister of the Crown to table a Motion for debate in Parliament once the ad hoc committee and the relevant Select Committee had reported. This requirement for a debate is at the heart of the amendment passed by the other place on 9 February. The Government support that amendment and call on noble Lords to do likewise.

The amendment delivers on your Lordships’ desire for parliamentary scrutiny by ensuring that the Government must put their position on record, in writing, in response to a Select Committee publication raising credible reports of genocide in a country with which we are proposing a new bilateral free trade agreement. The amendment delivers on your Lordships’ wish to impose a duty on the Government to guarantee time for parliamentary debate, in both Houses, should concerns about genocide arise. This is an important point: the amendment also affords to the Commons Select Committee the authority and responsibility to draft the Motion for debate, thereby taking this out of the Government’s hands. This is a significant concession, which ensures that Parliament is in the driving seat.

I want to clear up one last misconception before I conclude. It has been claimed, since the Government supported this amendment, that we are now switching our position away from determination of genocide by competent courts and asking Parliament to make these determinations. Nothing could be further from the Government’s view. I repeat: determinations of genocide are for competent courts, including domestic criminal courts and relevant international courts. We are not asking Parliament to make a determination on whether genocide has occurred. That is a very high standard and perhaps impossible for a committee to do. We are instead supporting a process that guarantees scrutiny and debate where Parliament has established for itself that “credible reports” of genocide exist and this is reflected in its own published reports. This is not the same as a judicial finding, nor is it intended to be. I am afraid we do not support the new amendments in lieu on the Marshalled List that seek to give a quasi-judicial role to an ad hoc committee, because these amendments conflict with settled government policy. We support the concessionary amendment passed in the other place precisely because the Government are committed to preserving their policy on the jurisdiction of the courts. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

[Lord Alton of Liverpool]

Leave out from “disagreed,” to end and insert “do disagree with the Commons in their Amendments 3C and 3D in lieu, and do propose Amendment 3E in lieu—

3E: After Clause 2, insert the following new Clause—
“Trade agreements and genocide
(1) Subsection (2) applies if the responsible committee of the House of Commons publishes a report which—
(a) states that there exist credible reports of genocide perpetrated by a counter-party to a relevant agreement, and
(b) confirms that, in preparing the report, the committee has taken such evidence as it considers appropriate.
(2) The matter is referred to the Parliamentary Judicial Committee (“PJC”) for a preliminary determination on genocide perpetrated by a counter-party to a relevant agreement.
(3) Following a preliminary determination from the PJC under subsection (2) the Secretary of State must prepare a response to the responsible committee of the House of Commons.
(4) Subsection (5) applies if, after receiving a response from the Secretary of State to the preliminary determination mentioned in subsection (2), the responsible committee of the House of Commons publishes a report which—
(a) includes a statement to the effect that the committee is not satisfied by the Secretary of State’s response, and
(b) sets out the wording of a motion to be moved in the House of Commons in accordance with subsection (5).
(5) A Minister of the Crown must make arrangements for the motion mentioned in subsection (4)(b), within a reasonable period, to be debated and voted on by the House of Commons.
(6) Subsection (7) applies if the responsible committee of the House of Lords publishes a report which—
(a) states that there exist credible reports of genocide perpetrated by a counter-party to a relevant agreement, and
(b) confirms that, in preparing the report, the committee has taken such evidence as it considers appropriate.
(7) The matter is referred to the PJC for a preliminary determination on genocide perpetrated by a counter-party to a relevant agreement.
(8) Following a preliminary determination from the PJC under subsection (7) the Secretary of State must prepare a response to the responsible committee of the House of Lords.
(9) Subsection (10) applies if, after receiving a response from the Secretary of State to the preliminary determination mentioned in subsection (7), the responsible committee of the House of Lords publishes a statement to the effect that—
(a) it is not satisfied by the Secretary of State’s response, and
(b) it seeks a debate on the report.
(10) A Minister of the Crown must make arrangements for a motion for the House of Lords to take note of the report and the Secretary of State’s response to be moved, within a reasonable period, in that House by a Minister of the Crown.
(11) A Minister of the Crown may by regulations made by statutory instrument make provision for or in connection with the establishment and funding of, and appointment to, the PJC, and the process of referral and preliminary determination made pursuant to subsections (2) and (7).
(12) Regulations under subsection (11) above may in particular—
(a) specify the procedure by which members (who must have held high judicial office) may be appointed to the PJC, and on whose authorisation;
(b) make provision about the procedure and rules of evidence necessary for consideration of a referral mentioned in subsections
(2) and (7), allowing for hearings under oath, the collection of evidence, including exculpatory evidence, and the standard of proof to which the PJC should work.
(13) In making such regulations the Minister of the Crown must have regard to—
(a) the experience gained in the operation of this section;
(b) the object and intended purpose behind the operation of this section including—
(i) the upholding of all undertakings in and international obligations arising from the United Nations Convention on the Prevention and Punishment of the Crime of Genocide;
(ii) provision of meaningful referral without unreasonable hindrance to the PJC or the committee making the referral pursuant to subsection (2) or (7).
(14) Regulations under subsection (11) may contain supplemental, incidental, consequential and transitional provision.
(15) A statutory instrument containing regulations under subsection (11) is subject to annulment in pursuance of a resolution of either House of Parliament.
(16) In this section—
“counter-party to a relevant agreement” means a counter-party with which the United Kingdom has a bilateral trade agreement or is engaged in negotiations for a bilateral trade agreement;
“genocide” has the same meaning as in the Convention on the Prevention and Punishment of the Crime of Genocide (see Article 2 of the convention) and refers to genocide occurring, or continuing, after this section comes into force;
“Parliamentary Judicial Committee” or “PJC” means an ad hoc committee established in accordance with regulations under subsection (11), comprising five members of the House of Commons or House of Lords who have held high judicial office;
“preliminary determination” means a public finding by the PJC of genocide perpetrated by a counter-party to a relevant agreement, after due consideration by the PJC of all available evidence;
“the responsible committee of the House of Commons” means any select committee of the House of Commons charged with responsibility for this section;
“the responsible committee of the House of Lords” means any select committee of the House of Lords charged with responsibility for this section.””

[Lord Alton of Liverpool (CB)]

My Lords, in declaring my non-financial interests as listed in the register, and turning to Motion B1 and Amendment 3E in lieu, I give notice of my intention to seek the opinion of the House when the time comes. The arguments in favour of the all-party genocide amendment have been extensively aired in Committee, on Report, and in deciding to send the amendment back to the House of Commons, so I will not rehearse again all the arguments about the total inadequacy of our response to genocide, but simply set out why this proposition should be sent back to another place with the strongest possible message that this House will not remain indifferent or silent in the face of the very worst atrocity crimes, and nor will your Lordships be satisfied with a sleight of hand.

14:15

In addressing us, the Minister said three things that I will immediately address. First, he said that this would change our constitutional approach by the back door. It is not changing our constitutional approach, for reasons I will give, and certainly not by the back door: we are debating an amendment on the Marshalled List. Secondly, he said that it would blur the distinction and challenge the separation of powers. It would do neither of those things, for reasons I will come to. Thirdly, he said that it is a determination that can be made only by a court of law, and then said that the Government are opposed to providing the opportunity by empowering a court of law—the High Court in this country—to make such a determination. The Government are tying themselves in knots; I will explore some of those knots.

Our amendment would merely insert a committee of legal experts into the proposal sent here by the elected Chamber. It cannot be unfettered and unaffected by other considerations. I say to the Minister that I too am a free trader, who calls in his defence Richard Cobden, the greatest advocate of free trade, but who said that two of the greatest evils of his day—the transatlantic slave trade and the opium trade in China—were unconscionable evils that overrode the creed of free trade. It is not difficult to imagine what his response would be today if he were confronted with what is happening to the Uighur Muslims. The Foreign Secretary, Dominic Raab, yesterday described their suffering to the United Nations Human Rights Council:

“The situation in Xinjiang is beyond the pale. The reported abuses—which include torture, forced labour and forced sterilisation of women—are extreme and they are extensive. They are taking place on an industrial scale.”

On the very pertinent issue of trade, the Foreign Secretary said that

“no company profiting from forced labour in Xinjiang can do business in the UK”

and that he will ensure

“that no UK businesses are involved in their supply chains.”

In line with this, the Government have repeatedly told the House that they are not seeking a free trade agreement with China. But this is not the whole story, and we must be wary of falling for the stage magic of rabbits and empty hats.

We need to focus on a reported meeting in Downing Street on 12 February because of what it reveals, not on an illusion. On one hand the Foreign Secretary rightly sets out his strong message and Ministers opposed to this amendment reassuringly tell Parliament that there is no imminent prospect of the United Kingdom signing any new trade or economic agreements with China. They tell us to trust them and that if there were any evidence of serious human rights abuses they would themselves baulk at signing such agreements, thus making the amendment otiose. Indeed, it was the Minister who told us, in terms, in our previous debate:

“Any responsible Government, and certainly this one, would have acted well before then.”—[Official Report, 2/2/21; col. 2082.]

However, in the same week, the Minister answered a PQ on trade with China saying that

“we are pursuing increased bilateral trade.”

This is to be seen in the context of a 100-page legal opinion by Alison Macdonald QC, a leading barrister, that there were strong legal grounds to conclude that crimes against humanity and genocide are being perpetrated by the Chinese state.

Yet last week the Prime Minister held a round table with companies trading with China, such as Swire Group and Tenacity, and is reported as saying that, despite occasional political differences, he wants a resumption of formal trade discussions with China, reactivating two forums, the Economic and Financial Dialogue and the China-UK Joint Economic and Trade Commission—JETCO—which had both been suspended in response to China’s repression of civil rights in Hong Kong. Meanwhile, the situation in Hong Kong continues to worsen, while atrocities in Xinjiang, as the Foreign Secretary said yesterday, are on “an industrial scale”. This, too, has to be seen in the context of the Biden Administration naming events in Xinjiang a genocide and criticising the European Union for pressing ahead with a massive investment deal with China. Only last night, the Canadian Parliament voted 266 to zero to recognise the Uighur genocide.

In 1941, in a live broadcast from London, Winston Churchill said that the systematic slaughter of six million people was

“a crime without a name”.

In 1948, Raphael Lemkin gave it a name and crafted the genocide convention, with duties that we are required to affirm. It is an international treaty. Lemkin expected the word to be matched by deeds, but it never has been. We fail to predict genocide. We fail to prevent genocide, to protect victims of genocide and to prosecute perpetrators of genocide. The genocide amendment is a modest attempt to address some of those failings. The very welcome election last week of the British QC, Karim Khan, as the new chief prosecutor of the International Criminal Court may be another harbinger of change.

This brings us back to today. We are well within our constitutional rights to ask the House of Commons to think further about this. On Report, the House unequivocally passed this all-party amendment by a majority of 126. It failed in the Commons by a slender margin of 11. On its return to the Lords we passed it by an even bigger majority of 171, with 359 votes to 188. It secured those votes thanks to the strong bipartisan support of Back-Bench Members and Opposition Front-Bench spokesmen, notably the noble Lords, Lord Stevenson of Balmacara, Lord Collins of Highbury and Lord Purvis of Tweed, and from the government Benches the noble Lords, Lord Blencathra, Lord Cormack, Lord Polak and many others. There were also the sponsors of the amendment: the noble Lords, Lord Forsyth and Lord Adonis, the noble Baroness, Lady Kennedy of The Shaws, and, at an earlier stage, my noble friend Lady Falkner of Margravine.

Unfortunately, in a procedure heavily criticised by Sir Iain Duncan Smith, the former leader of the Conservative Party, the opposition Front Bench and Members from all parties in the Commons, they were denied a separate vote on the genocide amendment. I say to the Minister that after 40 years of serving in both Houses, I am well aware of the precedents, but I am also well aware that business managers can use the Order Paper to their advantage and to frustrate Parliament when they wish to do so.

Instead, a government-inspired amendment was passed, simply enabling Select Committees of either House to consider whether a genocide is under way in a particular jurisdiction. It does not require an Act of Parliament to enable that. It is hardly what the Minister described as a middle way. This is a power which Select Committees already enjoy; it does nothing to break the current policy conundrum whereby the Government maintain that genocide is, as we have heard repeated in your Lordships’ House, a matter for “judges, not politicians”, while knowing that there is no prospect of any judge hearing the case, owing to the ability of certain states to frustrate the international judicial system.

As recently as this morning, the Minister’s department told the BBC that it will continue to argue that genocide determination is only for the courts, but now the Government say that they will allow a Select Committee to take a view. What is it supposed to take a view on? It is surely on whether the committee believes a genocide is taking place, but that will not be taken as a determination. A former Minister told me that the argument that this must be decided by the courts, knowing that there is not one empowered in the United Kingdom to resolve it, had become an unsustainable embarrassment, with Ministers expected implausibly to repeat the argument ad nauseum in the face of unfolding atrocities.

We now have a situation where the Government are asking Select Committees to do something that they believe is impossible, and which the Government have no intention of taking any notice of. This is just as in 2016, when the Commons passed a Motion saying that a genocide was under way against the Yazidi and other minorities in northern Iraq. The Government said it had no status to do that—and that was on the Floor of the House of Commons, not just in a Select Committee. It will require all the powers of a stage magician to untie the knots with which the Government’s contradictory arguments have become entangled.

The amendment has two further serious defects. First, it applies only to prospective free trade agreement counter-signatories, which excludes China, and therefore, as the Government well know, would do nothing to help Uighurs. Secondly, the government-Neill amendment applies only to genocides which occur

“in the territory of a prospective FTA counter-party”.

This is very broad framing, applying to state and non- state actors alike. Conceivably, the Select Committee could hold accountable an FTA counter-signatory state for the actions of a group or even a single individual within its territory, a very serious defect which our new amendment corrects.

The all-party amendment is a genuine attempt to meet the Government half way. With the wise help of the former Supreme Court judge, my noble and learned friend, Lord Hope of Craighead, we have tweaked the government amendment to enable the appropriate Select Committee to refer evidence, if it had found some, to an ad hoc judicial committee comprised of Members of our House who have served at the highest levels of the judiciary. Although it is emphatically not a court—which was the preferred option of your Lordships, as expressed in our earlier amendments, and remains my own preferred option—it would be empowered to determine whether the evidence is sufficient to support the claim that genocide had been, or was being, committed by a state counterparty to a bilateral trade agreement.

We have not sought to undo the constitutional reforms of 2009. This amendment emphatically does not reinsert a court in our House. Those participating will be former and not existing judges. It merely makes use of the tremendous legal expertise of this House to provide a credible analysis which no existing Select Committee could hope to emulate or achieve. Ultimately, the House of Commons and the Executive would still have the final say on what they want to do about such a finding, though, as my noble and learned friend has said, it would be authoritative.

We also believe that with the further modifications we have made, our amendment in lieu will gain additional support in the Commons. Following the last Commons debate, many Members from all parties have urged us to give them the chance to consider this question further. Unfortunately, it now appears that the Government have decided at short notice to resist this amendment, despite ample time to hold further discussions if they had genuinely wanted to find a way forward. Earlier today, Sir Iain Duncan Smith said:

“I had a week of discussions with various Ministers, who were amenable and even positive about this approach. At no point were any of these objections raised. This is a genuine, reasonable, decent compromise which meets the Government's desire to avoid the courts while allowing for a serious interrogation of the facts.”

Although the shifting sands have moved, this may not have been a breach of good faith by individual Ministers; it may come from higher up the food chain. Only the House of Commons can now put that right. This is now bound up with high politics, big vested interests and not the deterrence of genocide. Parliament must not allow itself to become part of an alibi for inaction, which is why we should do as parliamentary colleagues have urged us and send this back for further consideration. I beg to move.

[Lord Cormack (Con) [V]]

My Lords, I make it plain at the outset that I shall give strong support to the noble Lord, Lord Alton. The small amendments that I have made are so that I can participate as I have in the other debates. I make no apology for this. As we said last time, we are urged to stay away, we say that we are treated equally. That is not true, so I have put down two amendments which I think slightly improve the noble Lord’s amendment, but I do not intend to press them if he does not want me to.

I begin with a tribute to the noble Lord, Lord Alton. He has received many and deserved them all. He and I first became associated when drawing attention to and deploring genocide at the time of Srebrenica, in the other place. We both spoke on it, deploring the lack of response from the international community. It was not only genocide but an international scandal. Today we are offered by the Government a few fig leaves, and the noble Lord has very properly demolished the Government’s argument. If the Government are indeed, as I believe, opposed to and revolted by genocide, then even at this late stage I implore my noble friend on the Front Bench, for whom I have high personal regard, to urge his ministerial colleagues to listen to the good sense of the amendment placed before us.

During the last debate, we were in effect offered a challenge. The Government were offering to do things within Parliament, still clinging to their oft-repeated assertion that only judges could ultimately decide. It is a challenge that we have accepted and, with the wonderful help of the noble and learned Lord, Lord Hope of Craighead, we have this amendment to place before your Lordships’ House this afternoon.

14:30

We should rejoice that in this House we have so many eminent legal brains. We are suggesting that we should enlist the services of some of those who have served in the Supreme Court and have held other kinds of high judicial office—we should remember that we have three former Lord Chief Justices in this House—if a committee of either House detects genocide and asks them to advise. We are keeping it within the parliamentary forum, which the Government assert they wish to do, and are using some of the highest legal brains in the world, which the Government have implied they want to do. This is an eminently sensible amendment.

I am one of those who believes very strongly that ping-pong should not go on for ever, but if we vote this afternoon, which I hope we will, and if we have a great majority, which I hope we will have, I do not believe that we will be in any way transgressing the bounds of parliamentary propriety. We are responding to a challenge from the Government and putting forward a new suggestion that keeps us within the parliamentary context and the parliamentary forum.

We must give our colleagues in the other place the chance to assess what we are now offering them. I hope that they will agree that it is a realistic, sensible and balanced offering. If they do, I hope that the Government will concede that Parliament has made a very important step forward in the battle against genocide.

Of course, there is another reason why we should do this. As was referred to by my noble friend Lord Alton, the vote in the other place was rather fudged last time. This time, I hope the other place will have one issue to decide on—a carefully thought-out amendment that realistically meets the Government’s challenge and that will enable Parliament to play a real part in upholding the morality integrity of our country. There are some things that we should never sink to in global Britain. Global Britain should be an example to the world in its rigid adherence to the rule of law and its total desire to eliminate genocide. Okay, a few trade deals might have to go, but is it not better to retain our moral integrity as a nation—one that has embarked on a new and hazardous chapter in its life? I beg your Lordships to support the amendment of my noble friend Lord Alton.

What is going on, as we speak, in Xinjiang and in Hong Kong, to which we have a continuing and recognised moral responsibility, disgraces a great nation—one built on a great civilisation. It is appalling that the CCP—the Chinese Communist Party—should extinguish in the most brutal fashion the human and constitutional rights of every free-born man and woman. I beg noble Lords to support this amendment and to send an emphatic message to the other place, and I beg our friends and colleagues in the other place to vote with courage, integrity and determination when this amendment comes before them.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

My Lords, the following Members in the Chamber have indicated that they wish to speak and I will call them in this order: the noble Lords, Lord Blencathra, Lord Polak and Lord Shinkwin, the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Adonis, and the noble Baronesses, Lady Jones of Moulsecoomb and Lady Falkner of Margravine. After the final speaker, I will open it up to anyone in the Chamber to speak.

[Lord Blencathra (Con)]

My Lords, I rise for yet another time to support my noble friend’s amendment on genocide.

As Peers, we know our place, and this noble House asks only that the other place think again about the amendment put forward by the noble Lord, Lord Alton. Last time, the other place did not get a chance to think again because, in a brilliant and fiendishly clever move, our amendment was not considered. I pay tribute to the Government. It is the sort of clever, dirty, underhanded trick that I would love to have played if only I had thought of it when I was Chief Whip.

I will not spend time on the merits of the amendment and why it is necessary. The case has once again been put with frightening authority by the noble Lord, Lord Alton, and my noble friend Lord Cormack. The justification for it is overwhelming and in direct contrast to the increasingly desperate government excuses not to accept it, all of which have been discredited.

The Government say that only a court can decide, so they do not want a committee of former Supreme Court or High Court judges; nor will they tolerate the High Court—the second-highest court in the land—although they say that a court has to decide. They Government want only the International Criminal Court to adjudicate but they know full well that that is a sham. No case of state genocide will get before the International Criminal Court in a million years because it will be blocked by one or more players in the Security Council. No Minister, in either this House or the other place, can stand before a Dispatch Box and say hand on heart that he or she honestly expects a case ever to get before the ICC, so I am afraid that the Government’s case is a sham. I do not blame my noble friend the Minister, who is thoroughly decent and very able, as he has been handed a poisoned chalice. But, while he has been forced to drink from it, the rest of us have not.

Initially, I simply could not understand why the Government, whom I support, are so terrified of passing this amendment—a Government who have had the courage to leave the EU and stand up to its bullying, have threatened to break international law with regard to the Northern Ireland protocol and have had the courage to throw out some of Putin’s spies but are terrified to make one gesture in case they offend the Chinese regime. But I think I can throw some light on the Government’s inexplicable position on this matter, and it is our dear friends in the Foreign, Commonwealth and Development Office, who are never short of a tyrant or two whom they can appease. A few weeks ago, I asked the FCDO about our relationship with China and, in a Written Answer last week, they called China an “important strategic partner”. That can be found in the Written Answers produced by Hansard.

Can your Lordships believe that? The UK Government consider China to be a strategic partner. Now, if they had said that China was a very important trading entity and we had to be careful in how we negotiated with it, I could accept that, but “strategic partner”? Surely that is the terminology we use to describe one of our NATO allies, not the despotic regime run by the Chinese Communist Party. But that perhaps explains why we do nothing about China and say nothing—in case we cause offence to our valued, so-called “strategic partner.” So, the Foreign Office calls a country which imposes dictatorship on Hong Kong, threatens Taiwan, and steals islands in the South China Sea to turn them into military bases, a strategic partner.

China caused the Wuhan virus, covered it up and lies about it every day, and economically attacked Australia when it called for a genuine independent inquiry into the virus. It steals every bit of technology it can, has cyberattacked all our vital industries, infiltrated our universities and schools, and the new head of MI5 says that it is a threat to our western way of life and democracy, yet the FCDO calls it a “strategic partner”. Typical FCDO: sue for peace before anyone declares war.

We can do nothing about these things in this Bill, but the western world has to get off its knees and start to stand up to China before it is too late. The genocide of the Uighurs, of which there is now overwhelming evidence, is a sample of how the Chinese communist regime will treat every race and people it subjugates.

In this Bill we can make a small start by tackling the issue of trading with a country which commits genocide. I thought that the amendment in the name of the noble Lord, Lord Alton, that we sent to the Commons last time was superior to this one. I am certain that it would have passed if Members of the other place had not been robbed of a chance to vote on it.

Last week the Canadian Parliament voted to describe the treatment of the Uighurs as genocide. If our Canadian colleagues can make such a judgment, surely the great Parliament of this House and the other place is able to do likewise. This amendment is not going nearly that far, but it wants to start a process of thorough investigation which could eventually determine genocide. It is then left to the UK Government to have a completely free hand to decide what to do about it.

We cannot tackle all the iniquities of the Chinese regime, but this amendment is a start. It will show that the UK Parliament, with our new independence, cares not only about trade and prosperity but about moral issues, human lives and people in a faraway country of whom we know nothing, to paraphrase Chamberlain.

I say to the Government that this will not go away. This House will come back to the issue of genocide time and again in every other Bill where there is the slightest chance of pushing an amendment like this. The Government will face this issue again and again until we get off our knees and stand up to China on genocide. I urge all noble Lords to support the amendment in the name of the noble Lord, Lord Alton.

[Lord Polak (Con)]

I rise once again to support my noble friend Lord Alton. It is always a great pleasure to follow my noble friend Lord Blencathra, a former Chief Whip, who does himself down—he knew all the tricks of his trade.

I will not repeat the arguments I made in this Chamber on 7 December or 2 February; they are on record. I pay tribute to my noble friend the Minister, who perhaps could have chosen an easier Bill debut. I am grateful that the Government have listened and tried to find the right path to ensure that those guilty of genocide are not just called out but made to pay for their evil and despicable acts. I am sure we are all agreed on that. Sadly, I am not sure that there is agreement on how it should be done.

As Members have said, it is deeply unfortunate that for such a huge and important issue it was felt adequate to schedule the debate in the other place for just one hour. This ensured the bundling together of your Lordships’ amendments in order to stop a vote on the amendment of the noble Lord, Lord Alton. It is true that Erskine May is very clear that this is usual practice and is in order. While the business managers followed the letter of the law, they failed miserably in enacting the spirit of the law.

As the noble Lord, Lord Alton, makes clear, his amendment tidies up the Neill amendment. Let me explain by referring to Sir Geoffrey Nice QC, who argued that the Neill amendment applies to state and non-state actors and allows state parties to be held responsible for non-state parties. The alleged genocide does not have to be committed by the state but merely has to have happened in the territory. This contrasts with the Alton amendment, which is limited exclusively to state-sponsored genocide.

14:45

The Neill amendment would allow a Select Committee to force a vote on whether to continue FTA negotiations, allowing for a state to be held responsible via debate and a vote for the behaviour of a non-state party. The ramifications for some countries could be really significant. The Neill amendment would allow the committee to propose discontinuing trade talks with a state which may have done nothing wrong at all; all that is necessary is that alleged genocide took place in its territory. This is why the amendment in the name of the noble Lord, Lord Alton, is the right one.

The Jewish festival of Purim takes place on Thursday night and Friday of this week. This is a day of untold celebration when we read the Book of Esther. In a nutshell, the Jews were living in the lands of the Persian Empire when a young Jewish girl called Esther became queen to King Xerxes and, through her bravery, appealed to the king to save the Jewish people and thwart an attempt to slaughter all the Jews. Purim will be celebrated —I hope in a socially distanced way—throughout the Jewish world this week to commemorate Esther’s courage in saving the Jewish people living in Persia 2,000 years ago from extinction.

It is in our DNA to call out injustice and fight for freedom. The Uighurs are calling out for justice and are fighting for freedom. The amendment in the name of the noble Lord, Lord Alton, is a perfect example of calling out injustice and fighting for that freedom. He has worked tirelessly to ensure that we are seen to be doing the right thing. I am honoured and privileged to support him once again.

[Lord Shinkwin (Con)]

My Lords, it is a pleasure to follow my noble friend Lord Polak. Like him, I feel honoured to speak in support of the amendment in the name of the noble Lord, Lord Alton of Liverpool. I also pay particular tribute to the noble Lord, Lord Alton, for his resolve, persistence and most of all his humanity, because that is what this is ultimately about—our common humanity and common responsibility to bear witness to the values that underpin free democratic societies like ours. It is surely the responsibility of those who have power to stand up and protect the universal human rights of those who have absolutely none and who are victims of genocide—whether they be Uighurs, Rohingyas, or Yazidis.

As we have already heard, yesterday our Foreign Secretary gave a powerful speech to mark the UK’s return to the United Nations Human Rights Council following its re-election last October. As my noble friend Lord Alton told us, the Foreign Secretary described the situation in Xinjiang as “beyond the pale”. He is right to do so because if we want to be taken seriously by our global partners, including those whose agenda is to supplant our value system—especially democracy—then we need to deserve to be taken seriously.

That was yesterday; today, we have this fantastic opportunity to answer the Foreign Secretary’s call to arms and, by our deeds in the virtual Division Lobbies, to lend his words essential credence. This carefully crafted amendment enables us to do just that. Contrary to the impression given by the Government, time is of the essence—because genocide is not an academic question. If we want to stop and prevent genocide, we need to facilitate action now, today, by passing this amendment.

There is another reason why we should support the amendment. The Foreign Secretary highlighted in his speech that what is being perpetrated in Xinjiang is being done on an “industrial scale”. I wonder where we have heard that description before because, as any Holocaust survivor would remind us—as if that were necessary—we have been here before. It is astonishing, is it not, that we human beings have an amazing propensity to pretend that each generation is far too sophisticated to repeat the tragic mistakes of the past—yet, as the Holocaust survivor Primo Levi told the world, that is the best way of ensuring that we do repeat the tragic mistakes of the past.

As my noble friend Lord Blencathra said, there is another reason why we have been here before. Like him, I am also thinking of the infamous words of Neville Chamberlain during the Munich crisis in 1938, less than 100 years ago, when he referred dismissively—as we were reminded—to

“a quarrel in a far-away country, between people of whom we know nothing.”

In relation to the Rohingyas, the Yazidis or the Uighurs, are we really saying, in 2021, that appeasement pays and we simply do not care about the victims of genocide?

We should care a great deal. This amendment gives us the opportunity to look in the mirror: do we want to walk the walk and stand up for the values we profess to believe in, or do we encourage disrespect, cynicism and further genocides by only talking the talk? Is that what we want genocidal despots like Xi Jinping to think? This is the first test of global Britain’s commitment to freedom; let us not fail it. Let us pass this amendment and so enable the elected House to debate and vote on it.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, of course it is rare for this House to resist the opinion of the other place, and to do so again is deeply unusual—but there is a very good reason for doing so on this occasion, and we know what that reason is.

Certainly, on the last occasion in the other place, we saw a regrettable piece of sharp practice, which has been described by others, where the powers that be knitted together two amendments from this House, thereby diminishing the Commons vote. I am sure there was a great deal of back-slapping about who invented that wheeze, but it was unworthy on a subject as serious as this.

It is clear that there was, and remains, a huge clamour of voices, up and down this country and around other parts of the world, calling for this amendment to be passed—because it concerns an issue of profound moral obligation. We are signatories of the genocide convention and people of our word, and we are proud of this. It is worth remembering that we said, “Never again”.

My father’s generation, which is probably that of the fathers of virtually everybody in this House, fought in the Second World War, and he came home from war battle-worn and haunted by what was revealed when the gates of Auschwitz and other camps opened, having seen the evidence of the barbarity that had been perpetrated. He and others like him of our parents’ generation asked themselves thereafter about the horrors and whether they could have been prevented if there had been greater activity, in the 1930s and the years of the war, around what was taking place. Was there a point at which the Nazis could have been stopped in their hellish determination to extinguish a whole people? I wonder what my father would say now.

The genocide convention is about preventing atrocities, not waiting to count the bodies in mass graves to see if the tally is great enough—or waiting until the multiple crimes against humanity reach a level where, somehow, a bell rings. All the evidence received directing us to this most grievous of crimes points to genocide. You only have to hear the testimony of Uighur women, as I have, to register really deep alarm about them having children removed from them or being deracinated and stripped of their language, their culture, their religion and the family they love, placed in institutions a bit like borstals to whip them into line. You would also register alarm about them watching their husbands being taken off to forced labour camps or to disappear forever—and them being sterilised, prostituted and raped themselves. Their personal testimonies are so moving, and there is also the external photographic evidence of destroyed mosques and burial grounds. I have rehearsed that again —you have heard it before—because we must not forget what we are talking about here. The Uighur people are experiencing human degradation, torture and ways in which the human identity is taken from them.

I listened as others spoke about the courts, and I want to clarify some things for the House. Of course, the International Court of Justice is the court for the determination of serious crimes of genocide. There are two international courts that can potentially deal with genocide: the International Court of Justice is where plaints are laid by one nation against another, which is different from the International Criminal Court. The problem with the former—which is the traditional court where matters of this gravity would be dealt with, when a nation is conducting itself in this way—is that, after World War II, a small group of nations were given special status on the Security Council, and they have special powers and can exercise a veto. China is one of those powers, and we know that it would veto any plaint laid against it at the International Court of Justice. I will make it clear: that route to justice is therefore blocked.

The International Criminal Court should not be confused with that; it is where individuals are tried for grievous crimes, but the nation to which those individuals belong has to be a signatory to the Rome statute. China is not a signatory, so that route to justice is also blocked in relation to genocide. This turns us all into bystanders, and that is the problem.

When asked to declare a genocide, our Government says, “This is not a matter for Parliament; we can have debates and committees about it, but it is a matter for a competent court.” Of course, that means that we do not act at all; it is a recipe for inaction, which is why today’s debate and those that have gone before—as the noble Lord, Lord Glenarthur, has said—will come back if we do not decide today because most Members of Parliament, and many of the people up and country, feel that inaction in the face of genocide is not a position this nation can take.

We have very competent courts, and there are few courts more competent than our higher courts. Creating a procedure which lets a court determine whether there is sufficient evidence is the line that I would be arguing for today, but we are forced to present an alternative because we are meeting such resistance from government.

15:00

So we are looking for a compromise. The compromise presented to the House by the noble Lord, Lord Alton, is a principled one. It would create a judicial committee made up of the great judges who sit in this House. Their expertise would be drawn on in examining evidence and seeing whether it met legal thresholds. There is huge skill which we in the common law build up over years of experience as practitioners and then in the judiciary. It involves a particular kind of independence of mind that is inculcated over many years.

Let me assure the House that it would not be a conviction if that committee made a determination. It would be making a determination of whether the evidence had reached the standard. It would not prevent a referral to the International Court of Justice, should a time come where that became possible—maybe my prayers will be answered, and the Security Council and the United Nations will be reformed, but I think that we will have to wait a while for that.

The amendment would mean that our elected Parliament could make a decision that steps had to be taken by our Government. We have a whole range of possibilities as to what those steps might be such as the expulsion of ambassadorial staff or targeted sanctions. We now have Magnitsky law, where we can go after individuals, refusing them access to the assets that many of them have in Britain or imposing visa bans on their coming here. Such measures could be taken against Chinese party leaders, the governor of Xinjiang province, the superintendents of labour camps or the Minister of Justice or his equivalent. That move by this country to create Magnitsky law has led many others to do the same, including the European Union, Canada and the United States. Japan is now thinking of introducing targeted sanctions. We were in the lead in taking those steps and creating legal change to give teeth to international law. That is what we should do today by not sitting passively and allowing a genocide to take place.

It has been suggested that the amendment interferes with our constitution. I remind this House of our many debates where we have discussed the constitutional arrangements in this country and delighted in the fact that, by having an unwritten constitution, we have the capacity to create change when change is needed and the flexibility that is not available to many who have entrenched constitutional arrangements. There is no inhibition on our making the changes that were suggested in the original amendment tabled by the noble Lord, Lord Alton.

We vote with frequency as Members of this House. It is an enormous privilege, as we always remind ourselves, to be in this House as people who are not elected. Our privilege should never be abused. However, some votes in Parliament have more meaning and weight than others because they say so much about our values and principles as a nation. They speak to the people that we are. I therefore urge noble Lords here and all those not in this House to vote for this amendment. It calls on courage, integrity and determination and will call upon them from Members of the Commons thereafter if we pass it. I strongly urge it, because this is one of those matters where we are being put to the test as to what we stand for. I urge noble Lords to vote for this amendment.

[Lord Adonis (Lab)]

My Lords, my noble friend has just made an enormously powerful speech, and two points in particular will impress themselves on the House. The first is that the Government’s position in saying that it should be for the courts to decide whether a genocide is taking place but not giving them any powers even to offer an opinion on that fact is a recipe for inaction. It is a recipe for inaction in one of the worst causes imaginable because we are talking about genocide. It is a striking fact that, historically, the British Government have never declared a genocide to be in progress before it has been completed. We have to wrestle with the legacy of history. We did not do it in respect of Stalin; we did not do it in respect of Hitler. We have afterwards taught our children in schools about the horrors of genocide against the Jews and against many other races which those dictators and others carried through, so we should learn the lessons and seek to stop genocides in future.

The second powerful point made by my noble friend is that part of the reason why we should go down the route which the noble Lord, Lord Alton, has so convincingly laid out for us is not simply to reveal a genocide that is currently in progress—or may be; that is to be determined, but there is very good circumstantial evidence which should be tested and courts are good at doing so—but to limit the further extension of that atrocity while it is happening. We should do that rather than doing what may well happen, which is that in 20 or 30 years’ time, when people may talk about Xi Jinping in the same way as they talk about Stalin and Hitler, we ask: what are the lessons and why did we not learn them at the time?

The course proposed today seems not only deeply moral but relevant in terms of our own capacity to avoid greater horrors and problems that we ourselves will have to face. The noble Lord referred to a red line that he has; we should be much more worried about the red wall which we face in respect of Xi Jinping. That will have to be addressed over time, and it is much better that we get the measure of it earlier rather than later. Surely the lesson from such dictators in the past is that there was a moment when it was possible to stand up to them and find a way through that did not involve extreme action. We could all look at it in due course. The noble Lord, Lord Blencathra, and I had a good-natured exchange last time about what he sees as the great weakness of the Foreign Office. It has not always been weak. My great hero is Ernie Bevin because he stood up to Stalin after 1945 and we did not have to repeat the horrors of another full-scale war. There is plenty of combustible material in respect of China that could lead to war in future. We have only to look at what is going on in Hong Kong and Taiwan, let alone what is going on inside China itself. These matters are weighty. My noble friend said that some votes matter more than others. One reason for that is the consequences of action and inaction, and there is no bigger set of issues than those that we are addressing today.

The noble Lord, Lord Blencathra, said that the Minister, for whom we have a high regard, had been handed a poisoned chalice. We are very glad to see that he is still well on the Government Front Bench and will be in a condition to reply to this debate at the end. However—if I may use a Chinese analogy—in trying to persuade us not to agree to this amendment, what the Minister has done is offer us a very Chinese artefact: a paper tiger. He has made all kinds of imprecations as to what might happen if we agree to the amendment. Apparently, the constitution is going to be ripped up forthwith, which we are doing by the back door—what a large back door; an extraordinary number of people appear to be walking through it in remarkable unison. We were told that the amendment would somehow go against the wishes of the elected House. On the previous amendment, where the Minister told us not to be seduced by the noble Lord, Lord Lansley, he said that there was a resounding majority in the other place, which was why we should not insist on it. Not only was the majority when the Commons voted on the first of these amendments only 15 but, as the noble Lord, Lord Blencathra, rightly said, there was not a vote on the amendment in the name of noble Lord, Lord Alton; there was a resounding silence on it from the House of Commons. We should therefore resoundingly ask the House of Commons resoundingly to resolve its silence; that is our duty in respect of the amendment before us.

On the second element of the paper tiger the Minister put forward, he said, in establishing his red line, that the Government would not agree to expand the jurisdiction of the courts to assess the existence of genocide. But we are a parliamentary democracy. It is not for the Government to say whether the courts should assess whether genocide has taken place. It is for Parliament to legislate on whether the courts should have that power.

The Minister gave us a constitutional lecture on the separation of powers. It is not for the Government to tell the courts what they will and will not consider. That is for Parliament, making the law, to determine. It does not matter what the Government’s red line is; the issue is what Parliament’s red line is, and we do not know that yet, because the House of Commons has not had the opportunity to give its opinion. This House has given its opinion twice, which is unusual, since, normally, in ping-pong, we start to become faint-hearted and susceptible to the arguments about the role of this House and all that. Unusually, this House has had larger majorities as we have considered this matter again. I suspect there will be a very decisive majority at the end of this debate, too. I strongly urge all noble Lords who sympathise with the arguments, but are in doubt about what they should do, to vote for the amendment of the noble Lord, Lord Alton, because that will ensure this has the best possible consideration by the House of Commons.

I will make one final point about the red line and the red wall. The issues we face are extremely grave. If you read about the conversation between President Biden and President Xi Jinping, although there is a determination to have decent bilateral relationships, there is no clear meeting of minds between those two great powers. As the noble Lord, Lord Blencathra, rightly said, it would be disingenuous of Her Majesty’s Government to pretend that there in respect of the United Kingdom, too.

Many noble Lords may read a thing called China Daily, which we have circulated free to us—the propaganda sheets of the Chinese Government. China Daily’s account of that conversation should leave one in no doubt about what Xi Jinping said. According to its interpretation, he said:

“China hopes the US respects China’s core interests and cautiously deals with matters related to Taiwan, Hong Kong and Xinjiang, which are China’s domestic issues concerning the nation’s sovereignty and territorial integrity.”


On the opposite page, in a remarkable story headlined “Reporting the truth about China”, there is a whole series of assertions and lies about what is going on Xinjiang, including the claim that there are no events that are out of order taking place there, that the re-education camps are to improve the employment prospects of the Uighurs and nothing more, and that in the BBC facts have been “twisted” and the situation

“has been angled to give a certain, preconceived message.”

Of course, since we last debated this issue, the BBC has been banned from China and Hong Kong.

That brings us back to the need to have a clear assessment of what is going on, attracting and weighing evidence. That is the fundamental purpose of this amendment. When this matter was last considered by the House of Commons—in the strange procedure that did not actually allow a vote to take place on the key issue—Greg Hands said:

“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.”—[Official Report, Commons, 9/2/21; col. 219.]


Parliament is not subcontracting responsibility to the courts. On the contrary, it is asking eminent judicial figures and the courts to report on and expose the facts, so we know what is happening. Once those facts have been exposed, it is for Parliament and the Government to decide what action should follow. But we will not get that action unless we have the facts. This is a circular process: we need the facts; we need proper inquiry; we need measured judgments made on them just so that Ministers, such as the noble Lord, Lord Grimstone, can make balanced judgments in due course.

We do not want, in 20 or 30 years’ time, to have to spend time in our schools teaching our young people about the genocide in China in the 2020s that we did nothing to resist, involving what could be terrible consequences in terms of the relationships between the great powers, because we were not even prepared to consider whether a genocide was taking place.

15:15

[Baroness Jones of Moulsecoomb (GP)]

I am not sure I have ever said this before, and I do not know if I will say it again, but it is a pleasure to follow the noble Lord, Lord Adonis. He shouts at the Government even more than I do, which I welcome. I agreed with every word he said. It is a credit to the noble Lord, Lord Alton, that he has managed to unite the noble Lords, Lord Blencathra and Lord Adonis. That really is quite remarkable.

In fact, this debate is remarkable. There has been an incredible number of powerful, principled, passionate speeches from all around the House. The noble Lord has united the House on this matter of principle. It shows that this is not about politics. This is not politicking. This is about ethics, morality, having a clear conscience and making sure that we behave as a democracy should, by abhorring genocide and people being murdered, tortured and imprisoned. We really ought to be speaking out on it. This is about operating as an enlightened nation, and quite often I feel we fail at that. Here, we have a chance to put that right.

I would like to say that, when we talk about genocide, we ought to talk as well about ecocide—large-scale environmental destruction and ecological damage. Although it is not as obvious, it is a slow genocide. It drives people away from their land, makes them poor and gives them fewer opportunities and terrible lives. We should accept that we do that sort of damage, and that we do it in virtually every act of our lives. In some way, we impact on our environment and the rest of the world and, by doing that, we can damage the health and well-being of other nations and people who live in the places where we get our food or the minerals for our phones. So we ought to think very carefully about how we operate as individuals and as a nation.

Amendment C3 gives us a route to raise genocide crimes in Parliament and ensure that we do not make dodgy deals with murderous regimes. It also shows effective co-operation between your Lordships’ House and the other place. So I congratulate everyone who has been involved in this, particularly the noble Lord, Lord Alton, who has carried us all along in his wake. He is making it easier for us to do the right thing. Remember that: this is the right thing. This is not about politics; it is about honesty, kindness, generosity and being good people.

Having said all that, I would want to pass something much stronger than this, but I accept it has been tough getting even this far, so I also urge all noble Lords to vote for this amendment.

[Baroness Falkner of Margravine (CB)]

My Lords, it is a difficult day for me to stand up and speak from the perspective I will speak from. I know I will disappoint many in this House, not least my noble friend Lord Alton. Noble Lords will know of my long-standing and academic interest in foreign affairs and human rights. I am, therefore, compelled to revert, I am afraid, to first principles and be the only voice to speak in favour of the Government’s position.

The noble Lord, Lord Alton, passionately believes in two propositions. The first is that the international human rights system is broken, and the second is that we must create a vehicle to punish China in a generic Bill that is intended to define the process by which we scrutinise trade deals. That has been the tenor of most of the speeches we have heard today. I shall briefly set out why, with enormous respect for him, I oppose both approaches.

The noble Lord will know that Lemkin and Lauterpacht did not work on the conventions on genocide and crimes against humanity for their unilateral use. They were designed to be multilateral instruments to protect the international human rights system. That system, largely created by the United Kingdom, is now in its 70s. It is problematic and does not have the tools to deal with violations whereby state parties are themselves major enforcers of the system while carrying out egregious violations. We cannot challenge them due to the mere fact that they sit with us on rule-making bodies such as the United Nations Security Council. The noble Baroness, Lady Kennedy, alluded to that. It is therefore left to the rest of the world to take action jointly and multilaterally. That action is still there for us to take, irrespective of the fact that China sits as a permanent member of the Security Council. It is the route that the Government wish to take; at least, that is my understanding of their intentions.

The noble Lord, Lord Adonis, speaks of the lessons of history being historical. Yes, the lessons of history are usually historical, and today’s system has held for 70 years. There have been violations, which we have heard about in this Chamber. As to the idea that the United Kingdom unilaterally could have done much about them, I cast my mind back to my 40-something years in foreign affairs and remember only one occasion when the United Kingdom was able to intervene unilaterally—a small-scale invasion in Sierra Leone in the early 1990s. It was a brave attempt, which succeeded. However, on the whole, and with some caution, I warn people that if they think that by passing this kind of amendment we are going to be free to stomp the world unilaterally, taking on powers such as China, they need to think again.

My second point, which is about China, demonstrates exactly what is wrong with this debate. In the final analysis, I am unprepared to use generic legislation for specific ends. I refer also to the suggestion of the noble Lord, Lord Adonis, that the judicial committee advocated in the amendment would merely help us to ascertain the facts. Judges are not substitutes for intelligence reports, scrutiny undertaken by our Select Committees or academic scrutiny. We have all heard during the passage of the Bill about the numerous reports of the last three years, not least from the noble Lord, Lord Alton. That is a matter for us. It is a circular argument of the noble Lord, Lord Adonis, whereby the facts show that genocide is happening in China, yet we need a committee to tell us of those facts.

I do not come to this House every day to pass legislation in order to pass on that responsibility to great judges, however learned they may be. These two Houses are the places where the law and changes to it must be deliberated upon and agreed. Each and every one of us carries that responsibility and it should not be outsourced to our colleagues. It is for us, as parliamentarians, to determine these matters for ourselves on the basis of our own intellect and conscience.

The noble Lord, Lord Blencathra, had a good go at the Foreign, Commonwealth & Development Office. As noble Lords can imagine, if one has been involved in foreign affairs for some 40 years, one has seen people come and go. He says that the western world needs to stand up to China. I agree and have been saying so in this House for more than a decade. My first encounter with human rights abuses of the Uighurs in China was in 2004, the same year in which I entered this House, when I found out on a trip to that country what was actually going on. I agree with him that we need to stand up to China, but in doing so, we have no choice. We are a mid-sized power with a mid-sized economy, and our jobs, our people’s human rights, also matter. Not many people recall that human rights also include social and economic rights. Our jobs and our citizens’ human rights are at stake in these debates, particularly if we single out one country for action in a generic Bill. We might do that but it will serve as an impediment to other countries in doing trade deals with us.

If we want to stand up to China, we have no choice but to do it through working with the United States, the European Union, the Commonwealth and all the other strategic powers. Here, I concede that I do not see China as a strategic partner. However, along with other strategic partners, we need to decide how to amend and strengthen the existing global order to make China respect and uphold the values that we wish it to.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, at this point I must ask if there is anyone else present in the Chamber who wishes to contribute to the debate. No? In which case, I shall call the noble Lord, Lord Purvis of Tweed.

[Lord Purvis of Tweed (LD)]

My Lords, characteristically, this has been another powerful debate with, inevitably, a degree of emotion—but less emotion and more considered judgment, which is appropriate at this stage of the Bill.

My view is that the UK can act; and when we act, many people still look at how we pass our legislation in this Parliament and at our behaviour around the world. We can lead by example and, in many cases, we have done so. If it were argued that proposals on human trafficking and forced labour should not reach beyond UK businesses operating globally, and that we should act only in a multilateral forum, other countries would not follow. The UK’s record on human rights has been good but should be better. This debate, because it is on the Trade Bill, is about how we interact with our views of human rights and what triggers exist to remove preferential trading arrangements from countries that are in gross dereliction of their duty on human rights, regardless, in many respects, of a flawed decision by an international tribunal. Ultimately, it is the UK that makes its decisions.

Five years ago, President Xi was addressing both Houses next door in the Royal Gallery. I shall refer to China first and then open up my argument to the wider area of human rights. A joint statement was issued by the UK Government and the Chinese Government, and I hope that the noble Lord, Lord Blencathra, had his beady eye on it then. The communiqué, issued on 22 October 2015 stated:

“The UK and China commit to building a global comprehensive strategic partnership for the 21st Century. This visit opens a golden era in UK-China relations featuring enduring, inclusive and win-win cooperation.”


“Win-win cooperation” is a classic Chinese line. The statement continues:

“In the last decade, the bilateral relationship has flourished and matured with close high-level exchanges, deeper political trust, fruitful economic cooperation and wider people-to-people contact.”


Some of those factors remain the case but some have been significantly damaged, as noble Lords have indicated and as the Foreign Secretary highlighted. That joint communiqué highlighted seven co-operation agreements, covering £30 billion of trade, strategic partnership agreements and joint alliances providing preferential relationships. However, it did not include a free-trade agreement. We have more than £30 billion of trade covering a whole separate area.

15:30

The question in my mind, which the Government have failed to address from the beginning of the Trade Bill until now, is what consequences there are for preferential trading agreements with a country which the UK has decided is acting beyond the pale, in advance of waiting for any form of international tribunal so deciding. As the noble Lord said in the House when he became a Minister, he has visited China over 300 times in 30 years. There is probably no one contributing in this debate with greater experience of visiting and working with China. The question now is what the Government will do and what the consequences will be for our trading relationships. At the moment, there are insufficient mechanisms to trigger to pull back on our preferential trading relationships with China.

An interesting fact that has not been mentioned so far—I hope noble friends will not be surprised if I mention the European Union, though this is not the classical Liberal line of saying that we were better inside it—as we discussed this morning at the all-party trade strategy group that the noble Lord, Lord Lansley, chaired before, is that the European Union has published its trade review. The European Union trade review, to give one example, has now put forward proposals to make companies legally responsible for violations of labour and environmental standards in their supply chains. The Government have not indicated this.

Why have they done this? European Commissioners have put forward this proposal because they know that Volkswagen operates a manufacturing plant in Xinjiang, and that clothing goods have been used in the re-education camps for forced labour. It is inconceivable that some of these products are not in the UK at the moment; coming from a textile area, I always make sure that I know where the wool for my suits or the cotton for my shirts is produced. How many among us are wearing Chinese garments at the moment? How many of us have asked where those garments were produced and what the labour standards were in those factories? I hope this debate opens up the wider aspect of forced labour and human rights.

My point is that the trade policy review, which is looking at hard-wiring rules specifically on forced labour in trade law, is a result of the European Parliament indicating that it may not approve the China investment accord. It is the strength of Parliament, on behalf of the people, to indicate that trading relationships must have standards on human rights. What is our framework? What is the Government’s approach on triggering mechanisms and what consequences will there be?

Moving on to what the Minister has said, I am glad that this debate was shortly after the previous one, because we all heard him say that it is not possible for the Government to guarantee debating time for recommendations from committees. However, this is now the Government’s position in their amendment. The inconsistency is so glaring. I agree with the noble Lord, Lord Adonis, that this is not a great constitutional issue—this is the Government’s choice. If they wanted to make these changes, they could. They have just chosen not to.

The third area is that we have now embarked on trading discussions with other countries in which there are allegations of considerable human rights abuses. I mentioned previously our discussions with Cambodia. The European Union has removed trade preferences on certain areas of trade with Cambodia. The UK has not done that; we are still operating the full trade preferences. In a Written Answer to my noble friend Lady Northover, the noble Lord, Lord Ahmad, said

“The UK is concerned about the trajectory of democracy in Cambodia”

and, going on to say all the human rights concerns, said

“The UK also uses multinational fora to raise concerns”,

but not, clearly, about trading relationships. That omission must be resolved.

The noble Lord, Lord Adonis, is absolutely right that we should not simply have mechanisms that are retrospective if an international body has so decided. I accept the argument that there are significant flaws in having that with countries such as China, but looking online at Genocide Watch—an organisation I have not spoken to so cannot verify the information—China is highlighted in the area of Stage 9 warnings for extermination of people. Iraq and the Yazidis are there, as we have debated previously; so are Ethiopia, India for Kashmir and Assam, Turkey with the Turkish army, Saudi Arabia in Yemen, Myanmar with the Rohingya, Burundi, Nigeria, the Central African Republic, Somalia and Sudan. If we are to have preventive policies on human rights, we must have clear policy on human rights and trade from the Government.

I repeat what I said in the previous debate. These Benches are not asking the Government to do what they did not say they intended to do themselves. The noble Lord, Lord Ahmad, told the Joint Committee on Human Rights in its inquiry into human rights protection and international agreements:

“The UK’s exit from the EU provides us with an opportunity to explore how we can most appropriately use free trade agreements to pursue broader international objectives … The Government is exploring all options in the design of future trade and investment agreements, including relevant human rights provisions within these”.

We are still to see these. Until we do and the Government can be clear what consequences there are in our preferential trading agreements for countries such as China, the Minister can be assured that this House and the parties and Members in it will pursue these issues relentlessly.

[Lord Collins of Highbury (Lab)]

My Lords, one thing that is clear in this debate is that this House is united in its absolute opposition and horror to the crime of genocide. There is no difference between us. I also pay tribute to the noble Lord, Lord Alton, for his work on human rights.

Throughout the scrutiny of this Bill, the debate has been about ministerial accountability and parliamentary scrutiny. These Benches originally sought to complement the original amendment of the noble Lord, Lord Alton; we wanted to provide a safety net in case the courts decide there is insufficient evidence to permit a ruling of genocide. We also know that the horrific crime of genocide is above all those other despicable crimes against humanity, crimes which we often hear reports of but which would not pass the test of genocide. That is what we were trying to do. I say to the noble Baroness, Lady Falkner, that in scrutinising this Trade Bill today we are trying to ensure that we match the UK’s commitments with its actions, including on human rights and international obligations, when it comes to preferential trade, as the noble Lord, Lord Purvis, just indicated.

I have said before—and the noble Lord, Lord Alton, mentioned this in his introduction—that we want proper joined-up government, to end the position of one government department condemning the actions of a country that commits outrageous crimes against humanity while another department signs preferential trade agreements. The noble Lord, Lord Alton, is absolutely right to remind us of the Prime Minister’s words on 12 February at a Downing Street round table with Chinese businesspeople; Boris Johnson stated that he was “fervently Sinophile” and determined to improve ties

“whatever the occasional political difficulties”.

Genocide is not a political difficulty. We should be absolutely clear where this country stands.

Just a few days after the Prime Minister made that statement, last Thursday, the US House of Representatives reintroduced a bipartisan Bill that would ban imports from China’s Xinjiang region unless it is certified they are not produced with forced labour, and allow further sanctions against Chinese officials responsible for abuses against Muslims. Those are the actions of a state that is concerned about these horrendous crimes against humanity.

We are in a different climate, as the noble Lord, Lord Purvis, said. The decisions this Government make on trade outside the European Union, and the way those decisions are taken, are opening up an entirely new frontier in Britain’s responsibility for what happens to human rights overseas. The question is whether we embrace that responsibility or ignore it. That is what this debate has really been about. This House has started a debate down the other end and, actually, we have made progress. I have heard speeches from Ministers and MPs that I am incredibly proud of. They have stated their commitment to human rights; they have stated that they will take them into account. We have made progress and we should not forget that.

However, when it comes to the amendment of the noble Lord, Lord Alton, we have a responsibility to ensure, as my noble friend Lord Adonis said, that the Government do not get away with silencing the elected House. It is our opportunity to give the elected House a voice on this subject, because it has obviously indicated its desire to consider this issue. It is really important that we wholeheartedly back the amendment of the noble Lord, Lord Alton, this afternoon. In doing so, we should not forget the words of the Minister about how human rights will play an important part in consideration of trade matters. He has made that commitment and it will be our job in the future, as a House that scrutinises, to hold such Ministers properly to account. I hope that we will increase the majority in this House in support of the amendment of the noble Lord, Lord Alton, this afternoon.

[Lord Grimstone of Boscobel (Con)]

My Lords, we have again heard powerful, reasoned and deeply personal speeches and I deeply sympathise with noble Lords who wish to take a stand on this issue, particularly in light of gross human rights violations committed by the Chinese state against the Uighurs in Xinjiang. For the record, I completely align myself with the abhorrence felt by noble Lords on these matters. We have common ground on that, which is why the UK has led international action, including at the United Nations, to hold China to account for its policies in the region. It is why the Foreign Secretary announced, on 12 January, a series of targeted measures in respect of UK supply chains. This action and the Foreign Secretary’s subsequent words demonstrate to China that there is a reputational and economic cost to its human rights violations in Xinjiang.

Where I differ from the comments we have heard today is that I believe that the amendment passed by the other House, which is before us today, is a reasonable, proportionate and substantive compromise on the part of the Government to ensure that the voice of Parliament is heard on this vital issue. Again, I think it is common ground between all of us that we must have a way for the voice of Parliament to be heard on these issues; the dispute has been about the means by which that voice can be heard. However, I make the point again that the decisions to be made on future trade agreements are political decisions. They are—with absolutely appropriate oversight from Parliament, and I accept that point without reservation—for the Government to make.

15:45

I call on noble Lords to join in the political debate about trade and human rights with all of the passion and conviction they have demonstrated in this House in recent weeks on a whole range of topics connected with standards, human rights and other matters in relation to free trade agreements. I ask them to consider rallying around this sensible amendment, which ensures and guarantees in law that they will always have the opportunity to hold the Government to account for their trade policy wherever Parliament itself has identified credible reports of this most heinous crime of all, genocide. It is not the substance that we are disagreeing on today, it is the means by which this should be done.

I believe that the amendment passed by the other place is a fair amendment that avoids the constitutional and other issues that have been brought to the fore with amendments from the Opposition, while also directly addressing the concerns previously raised by noble Lords. We now have the opportunity to vote for that amendment and perhaps bring the Bill, which I stress is a Trade Bill, one step closer to becoming law.

[Lord Alton of Liverpool (CB)]

My Lords, the Companion is clear that I should be brief, no longer than three minutes, and I promise to stay within the rules. These have been remarkable speeches and I am grateful to everyone who has taken part. The noble Lord, Lord Adonis, reminded us that the BBC has been banned in China. He did not say why. The BBC has been banned in China for broadcasting testimonies given by Uighur women. They were silenced for speaking. We have not been silenced today—it is one of the privileges that we enjoy, referred to by other noble Lords, to speak and to act. We must use our privileges; we must uphold our values and give the world a lead.

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide was signed by us as a state. It is not a multilateral document but a document affirmed by us as a state, and it places duties on us: to prevent genocide, but also to protect and to punish those who have been responsible. Clearly, we have been derelict in those duties. Nothing in this amendment prevents us acting multilaterally. The only way that the other House can have any say about this issue is for us now to send this amendment back there.

The noble Lord, Lord Polak, said that Purim is coming shortly. In the Book of Esther, Esther is told that she has come into this world

“for such a time as this”.

For such a time as this, we must now step up to the mark and ensure that this issue of genocide is dealt with in the way it should have been dealt with over these last 70 years. The only way that can happen is by ensuring that we see legislative change, not simply talking shops or paper tigers, as has been put during the debate. I beg leave to seek the opinion of the House.

15:49

Division 1

Ayes: 367

---

Labour: 136
Crossbench: 80
Liberal Democrat: 80
Conservative: 33
Independent: 18
Bishops: 10
Democratic Unionist Party: 4
Green Party: 2
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 214

---

Conservative: 188
Crossbench: 17
Independent: 8
Ulster Unionist Party: 1

16:01

Motion B2 (as an amendment to Motion B) not moved.

Motion C

Moved by

[Lord Grimstone of Boscobel]

That this House do not insist on its Amendment 6B, to which the Commons have disagreed, and do agree with the Commons in their Amendments 6C, 6D and 6E in lieu.

6C: Page 2, line 23, at end insert—
“(4A) If regulations under subsection (1) contain provision about healthcare services, the provision must be consistent with maintaining UK publicly- funded clinical healthcare services.
(4B) If regulations under subsection (1) contain provision in any of the areas listed in subsection (4C), the provision must be consistent with maintaining UK levels of statutory protection in that area.
(4C) The areas referred to in subsection (4B) are—
(a) the protection of human, animal or plant life or health;
(b) animal welfare;
(c) environmental protection;
(d) employment and labour;
(e) data protection;
(f) the protection of children and vulnerable adults online.”

6D: Page 2, line 41, at end insert— “
(9) In this section—
“UK publicly-funded clinical healthcare services” means publicly- funded clinical healthcare services provided in the United Kingdom, or in the part of the United Kingdom in which the regulations have effect, on the date on which a draft of the regulations is laid;
“UK levels of statutory protection” means levels of protection provided by or under—
(a) primary legislation,
(b) subordinate legislation, or
(c) retained direct EU legislation,
which has effect in the United Kingdom, or in the part of the United Kingdom in which the regulations have effect, on the date on which a draft of the regulations is laid.”

6E: Page 3, line 40, at end insert—
“(2A) In this Part a reference to a draft of regulations being laid is a reference to a draft of the regulations, or a draft of the instrument containing the regulations, being laid before—
(a) each House of Parliament, in the case of regulations to which paragraph 4(1) or 5 of Schedule 2 applies;
(b) the Scottish Parliament, in the case of regulations to which paragraph 4(2) of Schedule 2 applies;
(c) Senedd Cymru, in the case of regulations to which paragraph 4(3) of Schedule 2 applies;
(d) the Northern Ireland Assembly, in the case of regulations to which paragraph 4(4) of Schedule 2 applies.”

[Lord Grimstone of Boscobel (Con)]

My Lords, with the leave of the House, I will also speak to Motions C1, C2 and C3. I will start by addressing Amendments 6C, 6D and 6E, which are standards amendments that the Government committed to bring forward when we debated standards on 2 February.

Standards underpin our quality of life in so many areas and make the UK a safe and fair place to live. For months, I have been reassuring your Lordships—not always with success—that trade deals will not lead to the diminution of standards. But we have come good on our word. We have signed FTAs with 64 countries—which largely entered into effect from 1 January—none of which has undermined domestic standards in a single area. If this House will indulge me, in over 170 hours of debate on the Bill and its predecessor, not one noble Lord has been able to provide one tangible example of the Government’s continuity programme undermining standards.

However, we have listened to the concerns voiced by noble Lords. That is why we tabled a compromise amendment, which I am pleased to say was resoundingly approved in the other place by a majority of 96. I hope that all noble Lords will support Amendments 6C, 6D and 6E today. They provide a cast-iron statutory guarantee that the Clause 2 implementing power cannot be used to lower domestic standards in the listed areas, including animal welfare, the environment and employment rights.

This amendment may look familiar to your Lordships, as it is closely modelled on the compromise amendment tabled to the 2017-19 Trade Bill, which received significant cross-party support. That amendment, unusually, united us with the noble Baroness, Lady Jones, who found herself in “unknown territory” in supporting the Government; with deep respect, I hope that lightning will strike for the second time today. Additionally, the noble Lords, Lord Stevenson and Lord Grantchester, supported that amendment, with the noble Lord, Lord Stevenson, saying:

“I think this is a good day for the issues that people such as the noble Baronesses, Lady Jones and Lady McIntosh, have campaigned for. My noble friend Lady Henig has also been very persistent in making sure that we got something about that into the Bill. I am very happy to support that.”—[Official Report, 20/3/19; col. 1445.]


Wonderfully, the noble Baroness, Lady McIntosh of Pickering, whom I deeply respect, said that the Government had acted with “graciousness and openness”.

These quotes may seem a little outdated, so I draw your Lordships’ attention to Committee on this Bill in October 2020, when the noble Lord, Lord Purvis—a man of great wisdom and expertise—tabled the same amendment ad verbum. To paraphrase him, he took joy—understandably—at tabling what was formerly a government amendment, and agreed that it would be a concrete improvement to the Bill. His version of this amendment received cross-party support in Committee, which I hope we can rely on today. To those not lending their support, I ask: why was this amendment good enough just four months ago but not good enough now?

In fact, we have good news before us, because the compromise amendment on the table today goes substantially further than the previous version of the standards amendment which the noble Lord, Lord Purvis, supported. This is entirely due to the quality of debate that we have had on this issue in this House—I say “this House” advisedly. First, we have brought the National Health Service into the scope of the amendment. The Government are, as noble Lords know, utterly committed to ensuring that the NHS’s role as a universal health service, free at the point of delivery, is safeguarded. In that spirit, this amendment stipulates that the provisions of an international trade agreement cannot be implemented using the Clause 2 power if they are inconsistent with maintaining UK publicly funded clinical healthcare services. I pay tribute to the noble Lord, Lord Freyberg, and the noble Baroness, Lady Thornton, for their efforts in this area.

Further still, I am again pleased that we have brought the protection of children and vulnerable people online into the scope of this standards amendment, ensuring that the Clause 2 power cannot be used to reduce UK statutory protections for children and vulnerable people online, or relating to data protection. We have put online user safety on the same footing as workers’ rights and the environment. I pay due tribute to the noble Baroness, Lady Kidron, for this. She has been a tireless campaigner on this issue, and I thank her on behalf of the Government for working with us on this solution.

There will always be voices saying that we need to go even further, even faster, and do more to protect standards in trade agreements. I believe that we have in front of us a sensible compromise amendment which has time and again united this House in support.

I remind your Lordships that even continuity agreements are subject to joint committees and review clauses with partner countries. This compromise amendment applies only to Clause 2 but it does not affect just the present; it will also provide continuing and far-reaching guarantees on standards in our trading relationships with up to 70 countries. This approach will absolutely set the tone for our approach to future FTA negotiations.

I anticipate that the noble Lord, Lord Grantchester—such an assiduous voice on these important matters—will outline that the Government’s distinction that the Bill is about continuity is now a false premise. However, with deep respect, that is incorrect. We are not amending any implementing power for future FTAs, because there is no such implementing power to be found in the Bill. As I said before, Clause 2 can be used only to implement continuity agreements; there is no power in this legislation to implement agreements with countries such as the USA.

We have made it perfectly clear that future FTAs will be legislated for as necessary in separate legislation, and that the Trade Bill is not the correct place to legislate for those agreements. Noble Lords will be able to scrutinise and indeed seek to amend future legislation in any way they see fit.

It has been a long journey on this standards amendment. However, I am delighted that we now have a sensible compromise on the table which safeguards our high standards, and I recommend that your Lordships join me in supporting it. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

[Lord Grantchester]

Leave out from “disagreed,” to end and insert “do disagree with the Commons in their Amendments 6C, 6D and 6E in lieu, and do propose Amendment 6F in lieu—

6F: After Clause 2, insert the following new Clause—
“Standards affected by international trade agreements
(1) If regulations under subsection (1) of section 2 of this Act, or any other provisions of primary or subordinate legislation to implement an international trade agreement as defined in section 2(2), contain provision about healthcare services, the provision must be consistent with maintaining UK publicly-funded clinical healthcare services.
(2) If regulations under subsection (1) of section 2 of this Act, or any other provisions of primary or subordinate legislation to implement an international trade agreement as defined in section 2(2), include provision in any of the areas listed in subsection (3), the provision must be consistent with maintaining United Kingdom levels of statutory protection in that area.
(3) The areas referred to in subsection (2) are—
(a) the protection of human, animal or plant life or health;
(b) animal welfare;
(c) environmental protection;
(d) employment and labour;
(e) data protection;
(f) the protection of children and vulnerable adults online.
(4) In this section—
“UK publicly-funded clinical healthcare services” means publicly- funded clinical healthcare services provided in the United Kingdom, or in the part of the United Kingdom in which the regulations or other provisions have effect, on the date on which a draft of the regulations is laid or (as the case may be) the provisions are first published;
“UK levels of statutory protection” means levels of protection provided by or under—
(a) primary legislation,
(b) subordinate legislation, or
(c) retained direct EU legislation,
which has effect in the United Kingdom, or in the part of the United Kingdom in which the regulations or other provisions have effect, on the date on which a draft of the regulations is laid or (as the case may be) the provisions are first published.””

[Lord Grantchester (Lab)]

I thank the Minister for his introduction and explanation of the Government’s amendment in lieu on the non-regression of standards. Indeed, I am grateful to him for fulfilling the commitment made earlier to bring forward the Government’s amendment at this point and in the Commons earlier this month.

The amendment marks a tremendous step forward for the Government and is to be welcomed. Together, we have built on the initial agreement negotiated in 2019 through the standards amendment to the then Trade Bill that set standards on food, environmental protection and animal welfare into statutory form in trade agreements. That set up the progress that was fulfilled in the then Agriculture Bill—now the Agriculture Act—and is translated further into the Trade and Agriculture Commission, which is implemented in this Bill.

As that progress has been made, the equivalent standards amendment has needed to reflect the wider interpretations of the standards into further relevant areas. While that list may vary among people, as may the relative importance of its elements, it is welcome progress that the Government recognise the fundamental area of employment and labour law, now with the addition of the National Health Service, data protection and online harms. I recognise these important concessions, agreed with the Government, which they have included in their amendments. I thank the Minister for all the discussions he has conducted on the issue.

However, the Government are still stumbling over one important facet of this. In 2019, the nation was in a different place regarding trade agreements. At that time, the amendment related to rollover agreements, which this Bill primarily focuses on. However, that is not the full extent of the Bill as it now stands. Then, rollover agreements had yet to take place. Two years later, as the Minister reminds the House with regular updates, our trading relationships have now been extended to some 70 countries with the continuation of rollover deals. The issue is no longer as pertinent to those deals, as the Government’s achievements in maintaining EU-wide agreed standards has recognised. The Government’s attention is now focused on the more precarious area of potential trade agreements with countries such as the United States of America, Australia and New Zealand, which would break new ground.

My amendment’s focus is different from that of the Government’s amendment in lieu as it will also apply to all future trade agreements yet to be secured. With all the delays to this Trade Bill and reinterpretations over developments and over time, this demarcation—this line of argument—has become rather muddled. Indeed, the Government recognised the extension over that line in the Commons, where the Minister there supported an earlier amendment in lieu tabled by Sir Robert Neill which covered new trade agreements, albeit on another issue. Referring back to the Agriculture Act, the main concession reached there was the addition of Clause 42, which created a reporting mechanism to all trade agreements through an amendment to the CRaG process. So it is a rather muddled line indeed.

Taking this patchwork approach together, it is clear that the Minister and the Government understand that UK standards can be affected, even diminished, by trade agreements—both those that exist through agreed EU rollovers and new agreements—and that the UK needs effective protection. I welcome that, but it seems that we are not altogether there yet in terms of having complete effective protection from the impact of future trade deals. However, from the Minister’s submission and his further remarks when he comes to reply, this technical drafting can translate into a practical interpretation that it will be all but impossible not to respect the non-regression of standards in all future trade agreements. Does the Minister agree with that statement? Across all the proposals supported by your Lordships’ House, the processes of scrutinising and agreeing trade agreements will need to be explored and experienced in how they will work; the Minister’s confirmation would certainly be appreciated.

16:15

The Minister could also clarify other aspects further to this technical distinction. As he mentioned in his opening remarks, in setting the tone for their approach to future trade agreements with Canada and Mexico’s neighbour, the US, how will the Government reflect that tone in legislation? Will there be a separate new Bill for future trade deals in the upcoming Queen’s Speech for the next Session? Will it reflect and build on the reporting mechanism outlined in the Agriculture Act or will it proceed on the rather piecemeal standards approach in this Bill? Will any future trade Bill bring together the patchwork approach to standards, even in the continuation and assessment of the Trade and Agriculture Commission, or will there be no such Bill with wide, enabling continuity of powers but merely piecemeal legislation on each trade deal where such amendments will constantly need to be assessed, perhaps even proposed, at every step along the way? Is the Minister looking forward to that? Will it be an element of each? His clarification would certainly be welcome.

Standards remain the crucial issue to be resolved for the clarification of the UK’s trade policy approach. They affect the quality of food that the nation eats, the medicine that the nation relies on for health, the respect that the nation shares with the environment and fellow animals and the content of communications experienced online. The Government maintain that this Bill is not the right vehicle for my amendment. They must resolve the approach between its two departments and how the powers they take will translate all future trade agreements into UK law. Experience may well be needed and helpful to resolve continuing anxieties until this House has that understanding.

I thank the noble Baroness, Lady McIntosh, for her amendment to my amendment in lieu. She raises important issues, acknowledging that there are concerns all around your Lordships’ House that food continues to be a vital area for a large majority in all areas of the UK that will continue through constant monitoring. I would welcome the Minister’s replies that will satisfy these questions on the Government’s position and intentions. With positive responses, it is not envisaged that I will press my amendment to a vote today. The Government have taken up the issue previously dropped and carried it further on the very important considerations at earlier stages of the Bill.

I thank my noble friend Lady Thornton and others for the NHS measure. They have been instrumental in securing this part of the amendment. I also thank the noble Baroness, Lady Kidron, and others for the important pursuit against abuses undertaken online. Further work on this will be welcome as more legislative progress is made. These are all vital areas given tremendous promotion from all corners of the UK and now recognised by the Government in this legislative form. I thank all those who have taken part in achieving this milestone of success; it is a very worthwhile achievement. Everyone will be monitoring further progress toward the expected maintenance of the UK’s current standards in all circumstances. I beg to move.

Motion C2 (as an amendment to Amendment 6F)

Moved by

[Baroness McIntosh of Pickering]

In subsection (3), at end insert—

6G: “(g) food safety, hygiene and traceability.”

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Motion C2 I will speak also to my Motion C3. I first take the opportunity to thank my noble friend the Minister for all he has done in taking this Bill forward, in particular for meeting what we like to call the four wizards—the noble Baronesses, Lady Hennig, Lady Jones of Moulsecoomb, Lady Ritchie of Downpatrick and me—last week to talk through the standards amendment, in particular.

I do not wish to appear churlish by tabling the amendments and debating them today, because I appreciate that the House owes a great deal to my noble friend Lord Grimstone for ensuring that the amendment of the noble Baroness, Lady Fairhead—also known as the “Lord Purvis amendment”—has reached, to date, where we are. I pay great tribute to my noble friend for ensuring that that is the case but, as we did with the Fairhead amendment, the three wizards and I tabled a similar amendment to ensure that food safety, hygiene and traceability will form part of the Bill, and I would have preferred to see this in the Bill.

The reason for that is not just what I as a humble Back-Bencher might feel is appropriate, but what the Government’s own national food strategy adviser concluded in his interim report. He said specifically that food safety and public health, alongside environment and climate change, society, labour, human rights and animal welfare should be included in future trade deals.

As the noble Lord, Lord Purvis, said in concluding an earlier debate on the amendments before us today, we are in limbo and there appears to be a legislative void at present on what happens to future trade agreements. I congratulate him, because he managed to secure a debate on the free trade agreement with the Faroe Islands, in which I take a particular interest, being half-Danish—I am probably one of the few Members of your Lordships’ House to have visited the Faroe Islands. That is a very asymmetric agreement. The noble Lord mentioned that at the time and I totally agreed. We export £80 million-worth of products to the Faroe Islands; we take, I think, something like three times that back—mostly fish, so I hope that the Scottish fishermen are not aware of the asymmetry of that agreement.

There is yet to be a debate on the free trade agreement with Kenya, so I look forward to the opportunity to debate that at the earliest opportunity. We did have the opportunity to debate the enhanced rollover agreement with Japan, which was very welcome.

The reason I tabled the two amendments before us today is on the back of what the noble Lord, Lord Grantchester, said. I supported his amendment at the previous stage and was disappointed to see that it will no longer be on the table, if he is not inclined to press it. The amendment included issues which will now fall: in particular, food standards, on which the NFU had a highly successful campaign, reaching 1 million signatures. That was reflected in earlier amendments which were carried at previous stages.

My concern is that the Food Standards Agency will now report to the Secretary of State for International Development on public health issues and food safety; it will no longer be in the remit of the Trade and Agriculture Commission in this regard. That is disappointing on three levels.

As the noble Lord, Lord Grantchester, said, it was the expectation in Section 42 of the Agriculture Act that it would be the remit of the Trade and Agriculture Commission, and to me it was a great achievement that food standards and food safety would be dealt with in the Trade and Agriculture Commission report, which both Houses of Parliament would be able to scrutinise. If it is now to be subsumed within the Secretary of State’s report—on which, we hope, the Grimstone principle ensures that we will have a debate in this place, and the other place, if it is deemed appropriate—we will be able to scrutinise the Trade and Agriculture Commission’s report and the Secretary of State’s report but not the advice from the Food Standards Agency. That is a matter of great regret. It must also be mentioned that the Food Standards Agency falls within the remit of the Department of Health, and neither Defra nor the Department for International Trade have regular ongoings with it.

I will also take this opportunity to support government Amendments 6C to 6E, but on Amendment 6E, I press the Minister, when he responds to this debate, to clarify its purpose. If the devolved Parliaments, Assemblies and Administrations will have the opportunity to comment on trade agreements, that is all to the good, because this was raised with us as an issue of great concern in proceedings before the EU Energy and Environment Sub-Committee, where we met our opposite committee in the Scottish Parliament. It also raised the fact that under the Trade and Co-operation Agreement which has been reached with the European Union, there may be divergences, not just in environmental standards between the UK and the EU but within the UK and the four devolved nations here. That is a matter of some concern to me. I hope that my noble friend will confirm that Amendment 6E will improve that situation and put the minds of the devolved nations, Parliaments and Assemblies at rest.

I congratulate my noble friend on ensuring that Amendment 6C not only brings back to the table the amendment of the noble Baroness, Lady Fairhead, but, as he explained, will extend to data protection and the protection of children and vulnerable adults online. I commend in this regard the work of the noble Baroness, Lady Kidron, which received such support through the Bill’s passage in this place. I also entirely endorse the work of the noble Baroness, Lady Thornton, who brought the NHS to the fore during earlier stages of the Bill, and I think it is appropriate that Amendment 6D reflects that.

I conclude by saying that I hope that if I am unsuccessful in persuading my noble friend to accept my amendments before the House today, there will be future opportunities to do so in the context of consideration of future trade agreements—which, under the Grimstone principle, we have agreed will take place. So, as the Bill sets the tone for future trade agreements, I regret that the issue of food safety and food standards remains open, as we leave the situation today.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The following Member in the Chamber has indicated a wish to speak: the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

I hesitate to disagree with my friend on the Tory Benches, but the word “wizards” was not the one I used; it was the “four witches”. In fact, the Minister called us the Gang of Four, which I thought was overstating our power—but who knows in future? It also struck me as very kind of the Minister to look up what we had said last time—that was very flattering, and even more flattering that he thinks we are going to be consistent. Obviously, that was then and this is now and, if we can get more than we got last time, that is what we should go for.

The debate about UK food standards and environmental standards has been one of the most fiercely fought over, and something which, as the noble Baroness, Lady McIntosh, said, has garnered a huge amount of support from all around Britain. The Government managed to unite the National Farmers Union, Greenpeace and the Green Party—and even some Conservative Peers and MPs—in an attempt to establish that food safety and food standards would be paramount when it came to trading. People care about it. The public care about their food and it seems a pity that we are going to lose any aspect of that in this. Of course, the Government have been reminded many times about how seriously we take it in this House.

As a lifelong Green, it has been fantastic to see so many allies. During the whole Brexit process, I thought that party loyalties were breaking down a little. It was obvious in your Lordships’ House that there were more and more collaborations across the Chamber, but I think it is this Government who are encouraging a breakdown of party loyalty. It was obvious today in our earlier debate that many of us agree, in spite of our party loyalties and in unexpected ways—so well done the Government for breaking down all those ridiculous party loyalties.

Having said all that, I agree completely with what the noble Baroness, Lady McIntosh, said. It is a pity not to take the final hurdle. However, if the noble Lord, Lord Grantchester, is adamant that he will not press his amendment to a vote, then—next time, next Bill.

16:30

[Lord Purvis of Tweed (LD)]

My Lords, unlike the noble Baroness, Lady Jones, I pride myself on my boring consistency on some of these issues—perhaps the Minister’s office has trawled back through Hansard. I hope the desire that the UK will be seen as a trading nation of the highest standards has perhaps brought common ground across all parties. If, as the Minister said, that will set the tone for future trading policy and strategy, that is at least one area where there is common ground.

However, the devil is in the details of all these aspects when implementing legislation and, therefore, the implementing regulations for the continuity agreements. As the noble Lord, Lord Grantchester, indicated, we discussed in Committee not just the interaction between the continuity agreements and brand new agreements for countries we had no FTA with, but what happens when we renew and refresh the existing continuity agreements. The continuity agreements, many of which are now out of date, especially the EPAs—some of which we will debate in this House—will need successor agreements. This amendment covers that interaction between the continuity agreements and the new successor agreements in which we will want to maintain those standards.

One agreement which may have to be looked at again is that with the Faroe Islands. I am glad the noble Baroness, Lady McIntosh of Pickering, raised it. It seems a long time ago that we debated it, but its figures are seared in my memory. I fear she was rather generous about UK exports to the Faroe Islands—as I recall from 2017, it was £3 million in exports from the UK to the Faroe Islands and £229 million in imports from the Faroe Islands, of which £200 million were fish. The Faroe Islands told the All-Party Group on the Faroe Islands last week that, with most of that fish being landed into Northern Ireland and the extraordinary costs per shipping for the certification they need there, it is now looking at bypassing landing that into the UK—where it would then be processed for the EU market through the Republic of Ireland and elsewhere—directly to Denmark. We will therefore have to look at the interaction between that agreement and the European TCA, which we have had little scope to debate in this Chamber in plenary, because there could be a direct cost from that, maybe to our fishermen, for whom it is competition, and to our consumers for whom it is of great interest.

The Minister referred—for the benefit of Hansard, with a slightly irreverent eye— to my wisdom in Committee. My wisdom was, perhaps, in seeking today’s position. We are approving an amendment—I have written this down to try to get it right—which was rejected in Committee, and which the Government had removed from this Bill but had inserted in the last Bill after saying it was unnecessary at the outset. However, that is some progress. We now know what the Grimstone rule is, and that is very positive; if there is a Purvis political rule, it is “If at first you don’t succeed, try and try and try again.”

The Minister has been gracious to all who have engaged in this debate. One amendment where the wisdom of my arguments did not prevail upon the Government was to amend Clause 2 to ensure that it was about not just continuity agreements but all agreements. Had that been the case then the points that the noble Lord, Lord Grantchester, raised would have been covered.

I very warmly welcome the Minister saying that this amendment will now set the tone for the new amendments. The manner in which he has done this has also set the tone. On that basis, we will accept where we are at the moment; we have lifted the baseline, so when we engage in these debates going forward, we will start from a higher base. Ultimately, that is a positive move.

[Lord Grimstone of Boscobel (Con)]

My Lords, it is a great pleasure to make my closing speech on this motion with such a spirit of compromise and good will around the House. I thank noble Lords for that and will try to spread a bit of that good will towards food safety when I come to it in a moment.

This Trade Bill was always designed—it seems a long time ago now—to have continuity trade agreements at its heart; I apologise for constantly trying to bring noble Lords back to that. That is because its Clause 2 power, given that the noble Lord, Lord Purvis, failed in his attempts to widen it, allows for the implementation of agreements only with a third country with which the EU had a signed agreement prior to exit day. It does not apply to future agreements with countries such as Australia, New Zealand and the USA. Interestingly, I am advised that successor agreements which derive directly from continuity agreements—for example, those with Canada and Mexico—will be within scope of Clause 2. If I need to elaborate on that, I will write a letter to the noble Lord.

I have said before, and say again, that the UK has a long track record of high standards across all areas. We should be proud of that, and the Government are keen to ensure it continues. However, I realise that, no matter how many times I stand here and repeat this, it will never be enough for some noble Lords. I appreciate that, but I say to them—this is the important point—that Parliament always has the final say. If it believes that the Government of the day have not kept their word and have negotiated an FTA that has reduced standards, it can refuse to ratify or, perhaps more importantly, refuse to agree with the legislation that will be necessary to implement future trade agreements not covered under our Clause 2 powers. It would be more than illogical—it would be foolish—for any Government to negotiate an agreement that they knew could not gain the approval of Parliament.

In direct answer to the noble Lord, Lord Grantchester, who spoke with his normal sincerity and conviction, we do not yet know what form future legislation for future trade agreements will take. We know that it will be necessary in certain circumstances, but it will mean that I have the pleasure of standing across from the noble Lord at the Dispatch Box on future occasions.

I will touch on the very important issue of food safety, which was raised by my noble friend Lady McIntosh, in her Amendments 6G and 6H. I had a helpful conversation with the four musketeers, the noble Baronesses, Lady Henig, Lady McIntosh of Pickering, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, last week, who asked me to provide greater clarity on this issue today. I can provide assurance that the Government’s proposed amendment also addresses food safety. It includes references to

“the protection of human, animal or plant life or health”,

among other issues. I am advised that that is the definition of sanitary and phytosanitary measures, as outlined in the WTO SPS agreement, and that it incontrovertibly includes matters relating to food safety. So, food safety is included in the amendment; it just has not spelt it out specifically.

Decisions on food safety standards are made outside of negotiations and are informed by the advice of our independent food standards agencies. As we know, all imports must abide by our food safety standards. The Government have also recently enhanced our commitments on scrutiny of food safety and standards in new FTAs, as an additional reassurance. Again, I congratulate Peers, as Section 42 of the Agriculture Act requires the Government to produce a report on whether provisions in new FTAs are consistent with statutory protections for human, animal and plant health, animal welfare and the environment. I am pleased to give the complete assurance that human health includes food safety, as well.

We will be consulting with the independent food standards agencies when producing our report, which will be published ahead of CRaG. These are independent agencies that have the ability, and normally the desire, to produce their own reports and make their views public. Even though this is a matter for them, I would be surprised if they did not want their views on such an important matter to be made known before the House considers such agreements.

The Government have listened to the concerns of noble Lords. We brought forward this amendment in the other place and it secured a majority. I say with caution that no other standards-related amendment proposed by this House has ever come close to doing this. I hope that noble Lords feel that we worked constructively with this House and kept our promises, and join me in voting for the government amendment and taking a decisive step in enacting this Bill into law. I hope that all agree that now is the time for us to move on with this important question, and not to delay the passage of this important legislation any further.

[Baroness McIntosh of Pickering (Con)]

First, I record my endless gratitude to the Minister for his consummate charm and patience, at every stage, and for taking the opportunity to speak to the gang of four, last week. He started by saying what a major development it was, and I echo him, that the Trade and Agriculture Commission is now on a statutory footing. You can imagine our disappointment that, having achieved that, reports to the House for a debate on food standards and safety in a future trade agreement will go through a body such as the Food Standards Agency, which we will not be able to hold directly to account.

Nevertheless, I welcome the assurances that my noble friend has given on the inclusion of food safety. That is something to celebrate. I join with others who have said that this will not go away and that we will revert to it, for future agreements. I am pleased to have made this point and I pay tribute to all, including the NFU, farmers, producers and consumers, who care so passionately about our food standards and levels of food safety. At this stage, I beg leave to withdraw.

Motion C2 (as an amendment to Amendment 6F) withdrawn.

[Lord Grantchester (Lab)]

I am grateful to all who spoke to this amendment and sincerely thank the Minister for his approach. I note what the noble Baroness, Lady McIntosh, said about further measures that we would have wished to secure. The Minister, however, has been convincing enough that alternative methods to secure adequate maintenance of food standards will be sufficient. Of course, we wait to see how that proper maintenance will be achieved.

Everyone has contributed to making this as effective as possible, given the Government’s resolve not to be prescribed in their future actions while they undertake to continue the non-regression of standards. We will see how all that works. Meanwhile, it has been important that so many have spoken up and I have certainly appreciated that support. However, on this occasion, I beg leave to withdraw.

Motion C1 (as an amendment to Motion C) withdrawn.

Motion C3 (as an amendment to Motion C) not moved.

Motion C agreed.

16:45

Sitting suspended.