Trade Bill

Iain Duncan Smith Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Tuesday 19th January 2021 Commons Chamber

[Greg Hands]

I will have to look at my hon. Friend’s amendment. My role is to speak about the amendment from the other place in the name of Lord Alton.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I gave the amendment to the Foreign Secretary and his team last Wednesday, and it is on the amendment paper today. With respect, is not a case of, “We can have a look at it”; the Minister must have a view on it, surely, because it is there on the paper.

[Greg Hands]

I note what my right hon. Friend says. The Government are open to further discussion on these matters. Nobody denies the importance and seriousness of the situation in Xinjiang, nor this Government’s continued commitment to combating human rights abuses, or that human rights cannot and should not be traded away in a trade agreement or anything like it.

I should emphasise to hon. Members the seriousness with which the Government approach human rights issues as they relate to trade. We are taking action and will continue to do so. The UK has long supported the promotion of our values globally. We are clear that doing more trade does not have to come at the expense of human rights. In fact, as I am sure my hon. and right hon. Friends will agree, there is a strong positive correlation between countries that trade freely and human rights.

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[Greg Hands]

Obviously that is something the Government would have to look at. We would have to consult across Government, and there would also be, quite properly, a significant role for the Foreign, Commonwealth and Development Office in that decision. But it is clear that we do not have a bilateral trade agreement with China that is within the scope of the Bill. We have no plans for a bilateral trade agreement with China. The amendment could have an impact on bilateral trade agreements that the United Kingdom is party to, but China is not a party relevant to the consideration.

[Sir Iain Duncan Smith]

As my right hon. Friend knows, I admire him enormously, but I want to take him back to that point. He said he has no plans for a trade deal with China, but what that really means is that we may yet make up our mind to have one, so that is not an absolute statement. If he decides that the British Government will never do with a trade deal with a country guilty of genocide, how would he know whether a country was guilty of genocide, if only a court can decide that and the International Criminal Court cannot reach that decision? Surely the amendment would give him a chance to say, “Our High Court has said this country is guilty of genocide.”

[Greg Hands]

I am very interested in this topic, but it is not for me as Minister for Trade Policy to make Government policy on which court would be involved, or where that court should be, or on aspects relating to genocide. However, I think the amendment before us is flawed and should be rejected by this House.

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[Madam Deputy Speaker]

I had hoped that we might manage at least the first part of this consideration without a formal time limit, but I will have to impose a time limit initially of six minutes, at the absolute outside—in the hope that Members will take less time than that.

[Sir Iain Duncan Smith]

It is a privilege to speak in this debate. I am conscious that time is tight, so I am going to try to make my points as quickly as possible. I rise to speak in support of Lords amendment 3, and in particular to support and speak to amendment (a) in lieu of Lords amendment 3 standing in my name and the names of my colleagues, as set out on the amendment paper. Amendment (a), by the way, has been in the hands of the Government now for over a week, and I put it on record that I have had no calls back or contact, but maybe that is going to change.

Let me turn to the reasons behind Lords amendment 3. The Lords tabled this amendment because it would enable the courts in the UK to make an advisory—I stress, advisory—preliminary genocide judgment for Governments to consider when signing trade deals with states accused of committing genocide. The amendment provides a sound legal basis for the Government to engage in obligations under the convention on the prevention and punishment of the crime of genocide in a way that is consistent, frankly, with the long-standing UK policy on genocide. After all, we were founder signers of the original charter, which bound the UK Government and all Governments to implement that charter in their own rights, rather than simply leaving it to the International Criminal Court.

The amendment is necessary because, as we have all seen, existing international mechanisms have, frankly, failed: in the UN, any reference to the ICC that is not agreed to by particularly intolerant states is immediately vetoed. The amendment would open perhaps the most important thing that has gone missing: the ability for victims of alleged genocide to see justice. That would include ethnic and religious minorities, such as those in China’s Xinjiang Uyghur region, maybe even the Rohingya Muslims in Myanmar and others. My point is that the amendment would bring that back to the UK courts.

The amendment is very important, as it deals with the UK’s independent trade policy—for the last 50 years, we have not had control; now we have left the European Union and have control—and would allow the UK courts, when a trade arrangement is being negotiated or taking place, to determine on a preliminary basis whether genocide has occurred in the country that we are supposing to strike that trade arrangement with at that particular time. Let me say that this is in regard to free trade arrangements; it does not really cover bilaterals.

The amendment is needed because Uyghurs and victims of alleged genocide have been denied justice for many years. As the right hon. Member for Islington South and Finsbury (Emily Thornberry) said, these are people at the moment—there are others as well—who have been pushed into slave labour, have had sterilisation forced on them and whose population has shrunk by some 85%, and that country is exporting trade goods produced by slave labour. It is quite clear to me, but I am not able to say so, that this has all the hallmarks of genocide. I am not able to say so, because at the end of the day we all agree that the courts have to make that decision.  It is not for individual politicians to do so.

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[Steve Brine]

I am tempted by my right hon. Friend’s amendment and I am listening to him very carefully, as I always do. At the moment we have a form of public health activism, where experts make decisions and it is then very difficult for politicians to disagree with those determinations. What does he say to that form of judicial activism? What would be the likelihood of this House disagreeing with such a determination? That is the concern some of us have with his amendment.

[Sir Iain Duncan Smith]

I agree. I put the question back to my hon. Friend, as I have to other hon. Friends. If, on balance, the courts decide—we have faith in our courts—that this is likely to be genocide, I simply ask why would we be doing a trade deal with a country that is guilty of genocide. We may not wish to disagree, but the power still remains. The pedantic point put forward by the Government was that it was all about loss of power. I say that that is simply not the case. It would certainly not be in our amendment, because it is very specific that the Government have to do that.

On the vexatious claims point, the High Court is quite capable of dismissing anything on that level. By the way, this is the highest bar that can be set for any accusation. To try to wipe out an ethnic group is the No. 1 crime in the world. The High Court knows that and would dismiss anything that was vexatious. There would be no point in doing otherwise—that would demean it and wreck its reputation.

The Government say that the amendment, being limited to genocide, is practically unenforceable. Well, maybe that is true, in which case we need to look again at the UN charter, but the reality is that right now this is unenforceable—nobody out there can bring a charge of genocide, because they are blocked. We come back to the same point: we argue about genocide, and the Government say they do not want to do deals with people who commit genocide. I have huge admiration for my right hon. Friend the Minister. We have worked very closely together on many things. However, I noted his language when it came to accusations of the sale of the NHS. He said, “Not and never will be sold.” When it came to China and a trade deal it was, “No plans to do one yet.” We can be emphatic from the Dispatch Box when we want to be. We can make absolute statements when we want to, but when we do not—I have been in Government—we simply do not. That tells us everything we need to know. The Government need to have that check on them.

I conclude by saying that the Government cannot have it both ways. If they say it is for the courts, then the question is which court and the amendment says that. Overall, I have to say that the amendment is not anti-China, but it is anti-genocide. We need now to stand tall. We left the European Union because we did not want to accept judgments from a court over which we said we did not have power. We did not come away because we disliked our courts. I think we have the best courts in the world, and I think they can make this judgment. My question, therefore, is this: what is it about? Why did we leave? So that we would stand tall and have a global vision about the morality of what we do. I say to my colleagues and to those on the Front Bench that tonight is about more than just pettifogging. Tonight is all about shining a light of hope to all those out there who have failed to get their day in court and to be treated properly. If this country does not stand up for that, then I want to know what would it ever stand up for again. I urge my colleagues to vote to keep Lords amendment 3 in the Bill.

[Stewart Hosie (Dundee East) (SNP) [V]]

If I may start by making some general observations, we have previously agreed with the Secretary of State for International Trade about the necessity of keeping trade open, recognising the importance of supply chains and how important it is that we stand against protectionism. I am happy to reiterate all of that today. Indeed, we all should, because we need to combat the three main threats to trade. The first, self-evidently, is the covid crisis, which the World Health Organisation suggests could lead to a massive fall in global trade. The second is the impact of Brexit, and thirdly, we must address the systemic problem of the continued implementation of new trade restriction measures, and the continuation of existing ones. For example, tariffs valued at somewhere north of $1.6 trillion are in force around the world. I am not confident that any of those problems will be resolved any time soon, and the Bill does not address any of those matters directly. It is presented mainly as trying to facilitate the roll-over of existing deals, and maintaining trade that the UK has with third countries, which is vital.

The Bill does a number of other things, as the Minister set out. It creates procurement obligations arising from membership of the agreement on Government procurement. It creates the Trade and Agriculture Commission, and gives power to HMRC to collect and share data. As I have said, however, it is not without its problems, as evidenced by the large number of amendments that have come from the other place, which cover a large number of areas. I will address those issues shortly—and hopefully briefly.

As the Scottish National party has made clear during the passage of the Bill, a number of the problems relate to the impact on the devolved Administrations and consent, the role and powers of any scrutinising Committee, parliamentary scrutiny and approval, international standards and agreements, food and animal welfare issues, concerns about the NHS and, as we have just heard, concerns about human rights in trading partner countries. The amendments from the other place deal with a number of those issues.

Let me summarise the SNP’s attitude to the main amendments. Lords amendment 1 seeks to enshrine parliamentary approval of trade agreements. That is one of the fundamental problems with the Bill as it stands. The absence of meaningful parliamentary scrutiny and a parliamentary vote on significant changes or modifications, or in future on new trade deals that may be envisaged by the Government, is a massive problem. Modern democracies need full scrutiny of trade agreements, from the scope of the negotiating mandate, right through to implementation. Without amendment 1, the CRaG provisions, which are prayed in aid by the Government, amount to little more than a “take it or leave it” choice at the end of the negotiations, without the ability to amend. That is inadequate.

Lords amendment 1 also requires the UK Government to consult the devolved nations. That is not consent, but it is progress of a sort.

Lords amendment 2 seeks compliance with international obligations. We raised that matter previously, and new clause 7 on Report was designed to do a number of things. First, it was intended to affirm the UK’s rights and obligations under the sanitary and phytosanitary measures in annex 1A of the WTO agreement. The amendment focuses mainly on human rights, but it also states that before publishing trade objectives, the Government must conduct a risk assessment to consider whether the agreement would comply with the UK’s international treaties and other obligations. It seems eminently sensible to ensure that any free trade agreement complies with international obligations, whether human rights obligations or otherwise.

Lords amendment 3 deals with genocide, and as the Minister knows, there has been a great deal of support for such a measure. There are some serious concerns about the amendment as it stands, not least in allowing the English High Court to determine what is and what is not genocide, but the principle of revoking a trade deal with a state committing such heinous crimes is beyond reproach.

Lords amendment 4 covers IT and related activities in the NHS. I have previously argued that there should be no use of negative listings, because such clauses require that all industries are liberalised in trade agreements unless there are specific carve-outs, and it is not always easy to define which services count as, for example, health services. Digital services may be irrelevant to health, but NHS data management and GP appointment systems are increasingly digitised. There should be no standstill or ratchet clauses, because those provisions would mean that after a trade deal was signed, parties would not be able to reduce the level of liberalisation beyond what it was at the point of signature. Lords amendment 4 explicitly excludes the use of such negative listing and ratchet clauses and rules out the use of ISDS-type provisions for public services, including health, which would be extremely popular with the public.

Lords amendment 5 addresses ratification, including the requirement for a debate. I have previously asked whether, if it was the intention of the Government to provide sensitive information to a scrutiny Committee, that would be the Select Committee on International Trade, chaired by my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil). I also asked whether any papers provided would be publishable or restricted. Lords amendment 5 would force the Government to publish an analysis, which would presumably ensure that such information was more widely available. The amendment would also ensure that a debate was held, on the recommendation of such a Committee. That is a very sensible measure indeed.

Lords amendment 6 deals with standards, including food and animal welfare standards, which are of massive concern to the public. As I said on Report, we know that trade deals can put pressure on food standards and lead to the importation of low-standard food. For example, the previous US Administration made it clear that they wanted the UK to lower its food and animal welfare standards. We suggested a ban on the importation of food that was produced to standards lower than those in the UK. Lords amendment 6 is clear that a Minister of the Crown should ensure

“as far as possible that a future trade agreement is consistent with United Kingdom levels of statutory protection regarding, among other things—

(a) human, animal or plant life or health;

(b) animal welfare;

(c) the environment;

(d) food safety, quality, hygiene and traceability;”

and so on. That is an eminently sensible thing to do. The amendment also states that should a Minister seek to change standards, they would have to “seek the consent” of the devolved nations in advance. That is absolutely the right way to proceed.

Lords amendment 7 seeks additional protection for children online, ensuring that legislation is consistent with international treaties. Lords amendment 13, which I understand the Government are minded to accept, addresses the relationship with the devolved Administrations, ensuring that Her Majesty’s Revenue and Customs can provide information to the devolved Administrations so that they can fulfil their obligations in terms of trade.

A comprehensive trade Bill is vital, but it has to be right. This Bill has been subject to dozens of amendments in the other place, many with widescale public support. There is still a great deal of work to be done and compromises to be made before this Bill is acceptable.

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[Dr Fox]

My hon. Friend should ask the Government; I am not the Government. My view is that we want to ensure that the powers are exercised exclusively by Parliament. I do not want any outside body, including the courts, to have a say on what we should or should not do. But I agree that we could have had a mechanism that allowed the House to do that in a way that satisfied all the reservations that have been put forward.

My second reason for objecting to the amendment is that I think it is the thin end of the wedge. If we set a precedent that says that the courts can make a judgment on genocide, where does it stop? In future trade Bills, we may get amendments on the use of torture or on other human rights violations. Valid though those points may be, once we have set a precedent that the court can make a judgment and tell Parliament what it can and cannot do, I wonder how we can reverse that trend.

Thirdly, I think the amendment is not good for our judges. It is difficult to know what the evidential base would be upon which judges would make such a decision, and therefore we bring judges into the territory that many of us saw and were uncomfortable with in the last Parliament, where judges are dragged into making political decisions; that is an uncomfortable place for them and us.

Finally, I do not think this amendment would make any difference whatever to the behaviour of the Chinese Government in relation to the Uyghurs or anyone else. It would not affect our trade with China in any way, shape or form. It would not even deal, for example, with dual-use materials when it comes to the Chinese state security apparatus. For that reason, it is an impotent tool when it comes to dealing with the Chinese Government.

If we believe in this Parliament that the behaviour of the Chinese Government warrants sanctions, we have sanctions available to us. The British Government, if enough pressure is applied by Parliament, can use those sanctions—whether the Magnitsky sanctions that come from our more recent legislation, or wider sanctions. We do not have to wait for an international agreement to be able apply sanctions that we are bringing forward on the grounds of the high bar of genocide. So it is up to Parliament to make such decisions.

We talk about taking back control, but Parliament has got to stop giving its decision-making powers away. If we want to be respected in this Parliament, we have to be the ultimate arbiters of the decisions and direction of travel of our country. We can have those powers. I say to the Minister for Trade Policy that we have had these discussions. I hope that the Government will bring forward mechanisms that allow the House to have much greater scrutiny at the outset of a trade negotiation to set those ethical parameters.

[Sir Iain Duncan Smith]

I will be quick, because I know that my right hon. Friend has to be quick. When it comes to genocide, it is different, because genocide has to be decided by the courts. We have no right to make that decision. So how is he going to allow that we would affect anything on trade, unless a court makes that decision? Why not the UK courts, so that then we can decide if we implement it or not?

[Dr Fox]

Because I believe that the high court of Parliament is the appropriate place to do that. Parliament can apply sanctions where it believes they are justified. Our new legislation allows us to do that.

I believe that setting a political precedent to make a political case is bad practice. If Parliament wants to take action against China or any other country, on behalf of those who they believe have been partially, unfairly or violently dealt with, the best route is to try to pressure the UK Government to take those measures. The Lords amendments being put forward today for the very best reasons are the very worst practice. That is a good reason for Parliament to reject them.

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[Anthony Mangnall]

The right hon. Lady is very quick to criticise the fact that many of the deals that we now have are continuity arrangements from the EU. She complained last week that the deals took too long to do and did not include enough detail. The purpose of these deals is not to be the end point but the start point for the future relationship that we wish to have with those countries.

I go back to the point about the intent of amendment (a) in lieu of Lords amendment 3. The intent for every single one of us should be to eradicate genocide and to do everything we can to prevent human rights injustices. Instead, we have an amendment that will do grave injustice not only to the trade deals, but will still essentially see countries trade with one another. My right hon. Friend the Member for Chingford and Woodford Green suggested that this non-advisory trade amendment was advisory. He makes the point that we will be able to take the advice of the High Court but potentially ignore it. That is not what is written in the wording.

[Sir Iain Duncan Smith]

My hon. Friend is completely wrong. It is absolutely clear that that remains the right of the Government, and I read out what the Government spokesman said in the Lords. If they wish, they can change it—I do not say whether they want to or not, but it is in there; it is our right as Parliament to do that.

[Anthony Mangnall]

The letter of the law and what amendment (a) in lieu say is that international bilateral trade agreements are revoked if the High Court of England and Wales makes a preliminary determination.

[Sir Iain Duncan Smith]

Will my hon. Friend give way?

[Anthony Mangnall]

I will carry on, but my right hon. Friend can come back to me later on. We need to get to the point where we can help those countries where genocide is being committed. That is not done by a trade deal. What do the people who are suffering expect? Is it the High Court deciding whether or not to sign a trade deal? They expect the international community to be engaged and to take action, and that is what we must seek to do. This is global Britain, and global Britain must reach out to its allies to create new institutions and ensure that we take action where appropriate. If we are unhappy with the current international landscape, let us seek to create new international bodies with like-minded colleagues, whether it be Five Eyes or North America. Those are the things that we must do, and we must be ambitious in doing so. I believe to my heart that the Government have the right intent of doing that.

I will speak briefly on Lords amendment 1 on scrutiny. We have heard much from the Opposition about how the Bill does not give any scrutiny to the trade agreements, but that is simply not true. The whole purpose of what is going on in the International Trade Committee, of CRaG and of having debates in this Chamber is to be able to debate such agreements. Frankly, to stand up and say that Parliament is given no time is not an acceptable line of argument. While the Committee had less time to scrutinise the Japanese-UK trade deal, that is now being amended. Ministers have proven themselves particularly willing to listen and have accepted a checklist of parameters before putting forward a trade agreement in the future.

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[Greg Hands]

The hon. Member for Glasgow North (Patrick Grady) says, “Hear, hear.” But that would mean immediately having to sign up to the EU—

[Sir Iain Duncan Smith]

Will my right hon. Friend give way?

[Greg Hands]

I am not going to take any interventions. I have a lot of points to respond to. I apologise to my right hon. Friend, but I have responded to his speech.

As I was saying, that would mean immediately having to sign up to the EU’s brand new investment deal with China from day one. The hon. Member for Glasgow North says, “Oh, we wouldn’t do that,” but he has just said that he would re-join the EU.

My right hon. Friend the Member for North Somerset (Dr Fox) made a very strong point that trade policy must be conducted by the elected Government. We have taken control from unelected judges in Brussels and it should be for elected parliamentarians to scrutinise. He said that amendments put forward today for the very best reasons will result in the very worst practice.

My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) and Chair of the Foreign Affairs Committee made a powerful speech, in particular about his own family’s experience of genocide. He is absolutely right. Genocide is the worst crime there is; it removes an entire people, but we still need to make sure we are making good law. If a country is committing genocide, it is extremely unlikely that any UK Government of any colour would be negotiating a trade agreement with it. I do not believe it would need a court to tell us that, a point also made by my hon. Friends, particularly my hon. Friend the Member for West Aberdeenshire and Kincardine (Andrew Bowie).

The Chair of the International Trade Committee had a few points to raise in terms of the Committee’s scrutiny of the Japan deal. I remember that his Committee actually praised it, but we can work with him further to improve scrutiny.

We had some very good speeches. My hon. Friend the Member for South Ribble (Katherine Fletcher) spoke against the involvement of courts. My right hon. Friend the Member for Bournemouth East (Mr Ellwood) made strong points on the UK’s international position, but I do not believe that if he had really dug into Lords amendment 3 he would be supporting it.

My hon. Friend the Member for Totnes (Anthony Mangnall), who has studied the amendments, made an excellent speech. He pointed out that, from the scrutiny from the International Trade Committee, Ministers have proven ready to listen. My hon. Friend the Member for Fylde (Mark Menzies) knows trade policy well and was also against the amendments.

My hon. Friend the Member for Penrith and The Border (Dr Hudson) called for more parliamentary scrutiny. Well, there is a very significant increase in parliamentary scrutiny from the CRaG position that we inherited. We compare favourably with other Westminster-style democracies, such as Canada, Australia and New Zealand.

My hon. Friend the Member for Wealden (Ms Ghani) was passionate on the issue, but she said that the UK Government are in a do-nothing position. That is not correct. The statement made by the Foreign Secretary last week was very clear about the trade actions that the UK Government are putting in place on supply chains and information and on making sure that no companies benefit from any of the appalling practices happening in Xinjiang.

Trade Bill

Iain Duncan Smith Excerpts

Consideration of Lords amendments
Tuesday 9th February 2021 Commons Chamber

[Greg Hands]

At the moment, I am speaking about human rights—I am coming on to genocide in a moment—but I totally appreciate my right hon. Friend’s question. It would not be proper for me as a Government Minister to seek to dictate how a Select Committee might approach its business; I think we have to have a level of trust in our Select Committees to approach this question sensibly and logically.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

The answer to this question is very simple. Ministers cannot direct Select Committees. Select Committees will go where they think it is necessary. So with this amendment, Select Committees will feel completely free to look at anything, regardless of what the Government say that the bar is on that. That is the answer to this question.

[Greg Hands]

I thank my right hon. Friend, but there is a crucial difference here. Yes, the Select Committee runs itself. It can make calls for evidence and produce a report, and we would expect it to report quite quickly if there were credible reports of genocide, so the Select Committee writes the motion, but there is still the protection that the matter then goes to a vote of the whole House. I find it hard to conceive that a vote of the whole House in which the Government had a majority would determine something along the lines suggested by my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) or my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I find that hard to conceive. I think we should have more trust in our Select Committees.

Going back to human rights, the Foreign, Commonwealth and Development Office already publishes an annual human rights and democracy report, so there is no need for Lords amendment 2B

Turning to Lords amendment 3B on genocide and the amendment tabled by my right hon. Friend the Member for Chingford and Woodford Green, it is the Government’s firm view that expanding the role of the UK courts in the manner envisaged is inappropriate and would carry harmful unintended consequences. First, it would be unlikely to work. Genocide is notoriously hard to prove, with a higher legal threshold. If a judge were unable to make a preliminary determination on genocide, which is highly probable, it would be a huge propaganda win for the country in question, effectively allowing that state to claim that it had been cleared by the UK courts.

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[Greg Hands]

I have to say that I disagree with my hon. Friend. I also think that the proposal made in the amendment tabled by the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), is a superior process, which I am going to outline. So I disagree with her point, if I may respectfully say that.

As I was saying, if a judge were unable to make a preliminary determination on genocide, it would be a huge propaganda win for the country in question, effectively allowing that state to claim that it had been cleared by a UK court. That would be an awful result, and I encourage the House to think strongly about the implications of that before supporting this amendment. Rather than helping persecuted people, we would be setting their cause back. Further, any determination would be subject to appeal, which would create a more drawn-out process than that envisaged by the amendment.

[Sir Iain Duncan Smith]

Will my right hon. Friend give way?

[Greg Hands]

I am not going to give way, because I am conscious of the fact that I have already been speaking for nine minutes and I have given way four times.

Secondly, the amendment raises serious constitutional issues and blurs the separation of powers. Inserting the courts into a decision-making process that is rightly a matter for the Government and for Parliament would disrupt the delicate constitutional balance we have in this country between the Executive, Parliament and our independent judiciary. As outlined in an article for PoliticsHome last week by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst, it is the role of Government to formulate trade policy and conclude international treaties, including trade deals. Parliament already has a critical role in this under the terms of CRaG, which enables it to scrutinise treaties prior to ratification and effectively block them if it chooses. Fundamentally, it is right and proper that Parliament takes a position on credible reports of genocide relating to proposed free trade agreements rather than, in effect, subcontracting responsibility to the courts to tell us what to think.

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[Mr Deputy Speaker (Mr Nigel Evans)]

There is a three-minute limit on all Back-Bench contributions from now.

[Sir Iain Duncan Smith]

Thank you, Mr Deputy Speaker. That is a very short time, so I will do my level best to get my three points across.

I just want to say something about the procedure today. Of course, we would not be sitting here if it was not in order for these proceedings, but there are different ways to be in order, and the reality of bundling together all these things into one motion—an amendment tabled by the Government—means that of course there is no way we will get to vote on the Lords amendment on genocide. I simply point out that fact. It reminds me that this little dispute is a little bit like the Handforth parish council one, and it is always a good idea to read the Standing Orders. I have read them, and they tell me what has happened: the Government have deliberately blocked this. I am sorry, but that is what this is. No point of order on that one; that is the reality. I simply say to my hon. Friends that I have been here long enough, and this is beneath them. I wish they had thought again, and I hope they do not try this one again.

I respect my right hon. Friend the Minister for Trade Policy enormously, as he knows, but I must pick up on a few points that he made, as I did table an amendment. First, he extols the virtues of the Government amendment and attacks the idea that the courts could make the judgment, as that would impinge on our position as a Parliament. Yet literally yesterday, in answer to a parliamentary question about whether genocide was a matter for the courts, the Foreign Office said:

“It is the policy of the UK Government that any judgment on whether genocide has occurred is a matter for competent courts rather than Governments or other non-judicial bodies.”

I ask my right hon. Friend: what is a Select Committee? Is it a judicial or a non-judicial body? If it is a non-judicial body, the Government amendment puts the power in the hands of a non-judicial body. What are we doing? We are running in circles just to avoid the reality.

My point is that we have been a little insulting about judges in the amendment that my right hon. Friend is talking about. I have my own differences with judges, but I remind the House that when we need an impartial taking of evidence and judgment—Savile, Grenfell, Hillsborough or any of the other cases—we turn not to Select Committees but to a judge. Why do we do that? First, because we assume that they are impartial and secondly, because they are trained to take and deal with evidence. We are not; we are partial—that is why we are here. We have Select Committees and we have prejudices, and that is the point.

[Tim Loughton]

Why does my right hon. Friend think that the Minister claims that a Select Committee, which already has the power to investigate all sorts of things in this House, is in some way superior to a judicial determination by a court? Only this week, Sir Geoffrey Nice, a distinguished QC who prosecuted Milošević, said that under the International Criminal Court Act 2001, UK courts are competent to prosecute the offence of genocide. The provision is there—we should surely be using it, not dismissing it.

[Sir Iain Duncan Smith]

That is why, I say gently to my right hon. Friend the Minister, in my amendment I deliberately locked in the idea that if the Government want to sift this by looking at Select Committees first, that is fine, but I think they should have the power to refer it to a court if the evidence is overwhelming and they want that final impartial judgment. However, he did not mention that at all.

I come back to amendment 3B. We bent over backwards to answer every single question that the Government laid on the last time we debated this. Under the amendment, the courts cannot strike down trade deals anymore. The Government set the terms of the referral and the level of evidence required to pass the barrier. All that is handed back to Ministers. All the court will do is decide on genocide, and then it is up to Ministers and Parliament to decide what to do. We do not even tell Ministers in this amendment that they should do anything other than at some point come back and ask Parliament. That seems completely reasonable and puts the power in the hands of Parliament.

We have a very limited amount of time, and I am very sad today that the Government have chosen not to allow us to vote on the amendment. I am not voting on my amendment either. I oppose the Government’s amendment because, as my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) suggested, I think it will lead to much more vexatious complaint and all sorts of human rights stuff piling through.

Today should have been a chance to stand tall—to send a signal to those without hope all over the world, whether the Uyghurs or the Rohingya. Instead of providing a beacon of light and hope, we have today gone into the dark corridors of procedural purdah. We need to emerge.

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[Ms Nusrat Ghani (Wealden) (Con)]

Today was intended to be a historic vote on a simple question: can we give effect to the Government’s own policy that genocide determination is a judicial matter, allowing us to assess whether our trading partners are committing that most heinous of crimes? Yet that most serious question—the destruction, rape, sterilisation, brainwashing and killing of an entire group of people from the face of the Earth —cannot be answered today. We have been denied a vote on the genocide amendment, which was improved to meet the Government’s objections—an amendment so powerful that it secured a majority of 171 in the other Chamber—and was on course to win the backing of the House today.

I am appalled at the parliamentary games played over such a grave issue, but we will not let the principle go away. We will do everything we can to ensure that we are not trading with genocidal states. Let us remember that it is the Government’s position, not mine, that genocide is for the courts. The Foreign Secretary said last month, “Whether or not it amounts to genocide is a matter for the courts”. The Prime Minister, last month, said that

“the attribution of genocide is a judicial matter”.—[Official Report, 20 January 2021; Vol. 687, c. 959.]

Why, then, is a meaningless amendment being backed that demotes this to the level of a Select Committee—and it has been rejected by a Select Committee—and deliberately excludes the Uyghurs and China? We are outsourcing genocide determination to the UN, which is handcuffed by China and Russia. Why not bring that back home? Why not take back control, in line with the Government’s own policy?

[Sir Iain Duncan Smith]

Will my hon. Friend reflect that the Government’s complaints that the previous amendment was flawed were taken into consideration such that under the current amendment the court would make a preliminary determination only, and it would be for the Government and Parliament to decide what to do about it at any stage?

[Ms Ghani]

Indeed. Some colleagues have said that we have bent over too much and that there is too much power with the Executive, but we have separated the power: the courts determine genocide, Parliament opines and the Executive are in charge.

We are unsure what the objections are now. I tabled a question to the Government to ask who determines genocide, and the response was:

“The determination as to whether a situation constitutes genocide is factually and legally complex and should only be made by a competent court following a careful and detailed examination.”

That means that any Select Committee paper would be rubbished.

The values of our country do not include enriching ourselves on the back of slave labour or using our new-found post-Brexit freedom to trade with states that commit and profit from genocide. Britain is better than that. Last week, the Board of Deputies of British Jews highlighted the plight of the Uyghurs and the chilling similarity to Nazi Germany: 2 million Uyghurs are in prison camps. The late Rabbi Sacks was once asked where God was when the holocaust took place. He responded that the real question was: where was man?

Let the record show that, on this day, men and women in this House were ready to vote on the genocide amendment, to lead the world in standing up to tyrannical regimes that commit genocide, to honour our vow of “never again”, to ensure that we are never complicit in genocidal trade, and to put Britain on the right side of history. Today, we were denied that vote, and this House was denied its say.

Trade Bill

Iain Duncan Smith Excerpts

Consideration of Lords amendments
Monday 22nd March 2021 Commons Chamber

[Greg Hands]

I thank my hon. Friend for that intervention, but the definition in the amendment of those who have held “high judicial office” would, in the view of the Government, inevitably confer quasi-judicial status on that Committee. By definition it would have five Members who have held high judicial office; it would be very difficult not to have the impression that it would operate in a quasi-judicial manner.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

Will my right hon. Friend give way?

[Greg Hands]

I am going to make some progress; there is very limited time.

Let me deal with the matter of engaging financial privilege. When an amendment is designated as engaging Commons financial privilege, the Government are procedurally required to provide this as the reason if disagreeing to the motion, although our reasons for disagreeing in this instance are much broader, as I have just set out. Financial privilege is sufficient reason in itself to deem the amendment disagreed to. The designation of Lords amendments as engaging financial privilege is an impartial process determined by the Speaker on the advice of House authorities.

We have listened closely to debates in both this House and the other place and take seriously the issue of genocide and the passions it has rightly stirred on all sides. Consequently, I can announce from this Dispatch Box today that the Government are willing to work with Parliament and relevant Select Committee Chairs should they choose to establish new Joint Committees or sub-committees or to engage the expertise of former members of the judiciary in considering reports of genocide in the context of our proposed free trade agreements.

For example, a new Joint Committee could be made up of members of both Select Committees. The relevant Lords Committee would have Cross-Bench membership and it would be possible for the convener to ensure that at least one of those members were an ex-judge. That is the established process followed for other Committees, which have been chaired by ex-Law Lords. In addition, with the agreement of the usual channels, it would be possible for additional Members with relevant expertise to be appointed to the Joint Committee, as is the case with the Lords Sub-Committee on the Northern Ireland protocol. The Joint Committee would also be able to take evidence from other former members of the judiciary, if desired.

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[Emily Thornberry (Islington South and Finsbury) (Lab)]

By my calculations, it has been three years, two months and two weeks since this House first debated the Government’s proposed Trade Bill, so if today’s debate proves to be the final one on a long drawn-out Bill, it would be appropriate to thank all Members of both Houses, all the parliamentary Clerks and all the officials in the Department for International Trade who have contributed to its passage.

Looking back at the very first day of debate in January 2018, I was struck by two things that were said by the right hon. Member for North Somerset (Dr Fox), the then Secretary of State, which seem very prescient in retrospect. The first was:

“Trade is an issue that transcends party politics”.—[Official Report, 9 January 2018; Vol. 634, c. 220.]

Time and again over the past three years, we have seen that to be the case, as Members from all sides of the House have campaigned together on different issues from farming standards to online harms. It seems fitting, after more than three years, that we should have been left with one final issue to resolve: a cross-party consensus on where we stand as a Parliament and on what we believe as a country will be most important.

That relates to the second thing that the former Secretary of State said three years ago, which I believe is equally relevant today. He said that

“trade is not only about self-interested commercial gain.”—[Official Report, 9 January 2018; Vol. 634, c. 209.]

For me, that simple statement of principle goes to the heart of the debate we have had in recent months, and especially in the past week, about human rights and trade. It goes to the heart of the decision that we have to take today on the Alton amendment to the genocide amendment.

I know that some people believe that the choices we make as a country on with whom to sign trade deals should be entirely dictated by our commercial interests and that considerations about human rights should be dealt with entirely separately. But there is another point of view—I believe it is shared by the majority of people in this country and by the majority of MPs in this House—which is simply this: there is a line that needs to be drawn; there are certain countries whose crimes are so great that they cannot simply be ignored on the basis of commercial self-interest; and Britain as a country must be willing to say no to trade deals with countries that cross that line.

The Alton amendment, as advanced today by the hon. Member for Wealden (Ms Ghani), seeks to draw that line by giving Parliament the power to debate whether Britain should sign any form of bilateral trade or investment deal with a Government held responsible for genocide by our country’s most experienced judges. Whether Members in this House decide to support the amendment today should have nothing to do with what party they represent. It should have nothing to do with the long overdue sanctions against Chinese officials announced by the Foreign Secretary earlier today. With all due respect to the Minister for Trade Policy, it should have nothing to do with the points of constitutional precedence that he made in his opening speech.

Whether we support the Alton amendment should only come down to the fundamental question, which is one we must all ask ourselves: should Britain be willing to sign trade agreements with Governments who are committing genocide? Should Britain be willing to sign trade deals with a Government who are engaging in torture, mass detention, slave labour, organ harvesting and non-judicial executions—not on an isolated basis, but on an industrial scale—against the Uyghur population in Xinjiang? Should Britain be willing to sign trade deals with a Government who are separating hundreds of thousands of children from their parents and re-educating them in different languages, religion and history in an attempt to wipe the Uyghur culture off the Chinese map? Should Britain be willing to sign trade deals with a Government who are carrying out the systematic sexual abuse, rape and sterilisation of hundreds of thousands of women in Xinjiang in an attempt to guarantee that this current generation of Uyghur children is the last?

I cannot see how anyone in this House can read the evidence of those crimes being committed against the Uyghurs and think that a potential trade or investment deal with China can be considered only on its commercial merits and not on the basis of morality. That is surely where we need to draw the line, and that is what the Alton amendment seeks to do. That is why I urge Members from all parts of the House to look into their souls this afternoon, to vote with their conscience and to make clear that this is the line that Britain is not prepared to cross.

[Sir Iain Duncan Smith]

I beg to move amendment (a), to leave out from House to “with” and insert “agrees”.

I rise to continue the debate that has been going on among us about what constitutes a fair and reasonable settlement with the Government. I started by moving the amendment standing in my name, and that of my hon. Friends the Members for Wealden (Ms Ghani) and for East Worthing and Shoreham (Tim Loughton), because I think that the Government have got themselves twisted up in knots, and I think my right hon. Friend the Minister knows that.

My right hon. Friend knows very well that, when the amendment was first put through the Lords, I spoke to a number of Ministers. I must say that the reaction of each of them was, “I don’t think there is a problem here. You have met our red lines, and this is a Committee in the Lords.” Suddenly, late in the day, they discovered this phenomenal red line called “quasi-judicial”.

On the definition the Government have given us today, “quasi-judicial” can be applied to any Select Committee in the House of Commons. Here is what a quasi-judicial committee is defined as in legal terms:

“A proceeding conducted by an administrative or executive official”.

That is important, because Parliament does not have any of those on its Committees—Parliament is separate from the Executive—so that does not apply to Parliament. The Minister knows very well that in this amendment, we have allowed the Government to set the terms of how the committee will sit, the balance of evidence and the kind of peers who would sit on it, which is to do with the judiciary.

[Tim Loughton]

Does my right hon. Friend agree that it is very difficult to see a position that the Minister would actually agree to, yet the Lords have changed and tried to compromise so often? Does he also agree that the Uyghurs do not come under the remit of the Government’s amendment to the Bill, and therefore would be given no protection by this House?

[Sir Iain Duncan Smith]

Yes; I am grateful to my hon. Friend for his comments. The problem is that this Lords amendment incorporates the original Neill amendment in its entirety and makes two adjustments. First, there are already trade arrangements with China, but they are pushed aside in this. It can only be an FTA, and it is a prospective one, which means that the Uyghurs are not going to get in front of the Select Committee at all. Secondly—this is very important—it opens the door, because of the definition, to any state activist who has nothing to do with the authority in that state. All QCs who have seen the amendment have accepted that this is a major problem, so we have dealt with that, made it a better arrangement and added the legal committee.

It seems to me that the Government simply do not want to have these judges involved. They say, “We’ll have a judge, if you want, on one of the Select Committees.” Does that not apparently make it another quasi-judicial committee? If the Minister does not mind me saying so, it is a bit sad that the Government could not have accepted this amendment. There was no need for us to be here today voting on it. This was a major compromise, and it would have settled everything.

My right hon. Friend the Minister knows that I have huge respect for him in the job that he has to do right now, but I simply say this. We have a chance tonight, following a very good statement by the Foreign Secretary, to send the message that we simply will not put up with this; we are not frightened of finding that this is genocide, and we are not frightened of saying it from the steepletops. We know that we have to stand up for those who have no voice. This Chamber has a history of doing that. It has an opportunity tonight to do that, and I am sorry that my Government, whom I hugely respect, do not think that they can do it. I urge Members to vote for this Lords amendment.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP) [V]]

Madam Deputy Speaker, I notice that the countdown timer is running, but I assume that I get the Front-Bench privilege for this speech.

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[Sir Robert Neill]

I am sorry, but time presses. I have given way once, and, with respect, it would not be fair on other people.

I hope that, when the Minister responds to the debate, he will make it clear that the Government would facilitate the bringing forward of motions to enable the establishment of such a Joint Committee of both Houses and I hope very much then that Members of the other place with high judicial experience might well lend their expertise to that. The obvious precedent is the work of the Joint Committee on Human Rights, ably chaired by the right hon. and learned Member for Camberwell and Peckham (Ms Harman). Over the years, that has established a very high reputation for its rigour of scrutiny, the quality of its decision-making, and the respect in which it is held. It is inconceivable that such a Committee would be ignored by any Government on an issue as important and significant as potential genocide by a potential trading partner. I urge the Government to take that as the right way forward rather than falling yet again into the totally well-intended, but none the less undesirable, constitutional trap of this latest iteration.

[Sir Iain Duncan Smith]

My hon. Friend is making a speech that contradicts the Government’s position right now. The Government do not believe that what this House, or a joint House, would do is decide that genocide has taken place, so, in a sense, he is quite a long way towards our amendment.

[Sir Robert Neill]

I fear that my right hon. Friend misunderstands—inadvertently, I am sure. My stance is entirely consistent with that of the Government because it would be for the Select Committees to refer the matter to the Joint Committee, which would then take a view as to whether genocide had potentially taken place. Ultimately, that would then be a matter that informed the House as to whether it decided to go through with the signing off of a trade agreement. Even under the CRaG process, this House has control over that matter. There is, therefore, with respect to my right hon. Friend, no contradiction at all. The nonsense would be to have a situation where we seek to create—however well intended—a quasi-court in the other place through the language of this amendment. That would, I suspect, do more harm than the good that is intended by it. I hope that, if the Government make clear their intentions and facilitate the setting up of a Joint Committee, we will have a better and an altogether more suitable resolution.