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.