Trade Bill

Lord Forsyth of Drumlean Excerpts

Committee stage
Tuesday 13th October 2020 Lords Chamber

I have no doubt that the Minister shares my abhorrence and that of other noble Lords. I hope that even though he will feel duty-bound to resist many amendments to the Bill, he will recognise the unique nature of this amendment and will, between now and Report, work with the movers to incorporate it into the legislation. I beg to move.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, I apologise for not being here at the start of this Committee. I had to chair the Economic Affairs Committee of the House of Lords to which the Governor of the Bank of England was giving evidence.

I support these amendments and congratulate the noble Lord, Lord Alton, on his tireless commitment to championing the cause of so many people suffering persecution and genocide around the world. Who on the Front Bench could have heard that speech and not felt an absolute obligation to accept these amendments or some variation on them? This House can be proud not only of the noble Lord, Lord Alton, but also of the noble Baroness, Lady Cox, for the indefatigable way in which they bring the appalling atrocities happening around the world to the attention of this House and of the country.

I want to focus on China, a country with detention without trial for bloggers, journalists, academics and dissidents; of televised forced concessions; of torture, genocide, enforced organ harvesting, compulsory sterilisation, forced labour and the destruction of crosses and their churches. I have referred to this in the House before, and to the evidenced-based report by the Conservative Party’s Human Rights Commission entitled The Darkest Moment: The Crackdown on Human Rights in China, 2013-2016. It makes for very disturbing reading. It details how a pastor’s wife was buried alive while protesting at the demolition of a church in Henan province and how Falun Gong prisoners were forced to donate organs to high-ranking Chinese officials.

Giving evidence to the commission on organ harvesting, the Chinese-born actress, Anastasia Lin, said that such acts force us

“to confront the question of how humans—doctors trained to heal, no less—could possibly do such great evil”.

Her answer was:

“The aggressors in China were not born to be monsters who take out organs from people … It’s the system that made them do that. It’s the system that made them so cold-bloodedly able to cut people open and take out their organs and watch them die.”


As a consequence of her criticism of the regime, Ms Lin’s family was threatened by state security agents and her Canadian sponsors were asked by the Chinese consulate to withdraw their support.

Last century, China signed the International Covenant on Civil and Political Rights, but somehow it has not got around to ratifying it. The assaults on Tibetan identity and the oppression of the Uighurs in Xinjiang are mirrored in Mongolia. My right honourable friend Sir Iain Duncan Smith wrote about this in last week’s Daily Telegraph. He reported that there are 3 million Uighurs in detention camps and he rightly pointed out:

“As China carries out these human rights abuses while systematically breaking World Trade Organisation rules, too many businesses act as apologists for China”.


We must now take a lead in challenging this behaviour. We saw how Huawei found friends in high places, with the noble Lord, Lord Browne of Madingley, no less, chairing its UK board and Sir Mike Rake, a former president of the CBI, joining the board, together with a former head of UK Trade & Investment, Sir Andrew Cahn and the Lord-Lieutenant of Greater London, Sir Ken Olisa. I do not know what the UK board of Huawei does but, since public exposure, many of these people have scuttled off it. Speaking out against China’s egregious breaches of human rights has not been one of their functions.

This amendment is a start to holding China and others to account. In a Written Answer to the noble Lord, Lord Alton—I call him my noble friend—the noble Lord, Lord Ahmad of Wimbledon said:

“We have a policy of engagement with China and our approach will remain consistent even if difficulties emerge.”


We are talking about atrocities and genocide. This is why this amendment and its supporting amendment —which takes account of the Minister’s comments—need to be taken on board in the Bill. I hope the Minister will support it.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

As the noble Lord, Lord Adonis, has withdrawn, I call the noble Baroness, Lady Falkner of Margravine.

Trade Bill

Lord Forsyth of Drumlean Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 7th December 2020 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, it is with great pride that I support this amendment. As the noble Lord, Lord Alton, has just said, he and I have been involved in discussions around this crime for some time, and we have engaged with some of our most senior lawyers and judges on how it can be addressed.

Genocide is the most serious crime in global law; for that reason, it stands apart and is distinct and singular. The term was first coined by Raphael Lemkin in 1944; he was a Polish Jewish lawyer who was undoubtedly absolutely bereft as he watched the horrors of the Holocaust and its atrocities unfold. He also drew on the history of previous instances in which entire nations or ethnic or religious peoples had been destroyed. His urgency was a new legal suggestion, and, although it was mentioned at the Nuremberg trials, it was mentioned in descriptive terms rather than as a legal term. It was immediately after the Second World War that genocide was coded as an independent crime under international law, in the 1948 Genocide Convention. That came into force on 12 January 1951; 12 January 2021 will be its 70th anniversary. Think how fine it would be for us to be a nation that had just put some teeth into the law against this most egregious of crimes.

The legal definition of genocide is precise and includes an element that is very hard to prove: intent to commit genocide. This is a very high bar and an evidential hurdle that is great; this is something of which those of us who practice law in this field are all too conscious. It involves efforts to exterminate and dehumanise a people—a whole set of people. You have already heard the horrors experienced by the Uighurs described in this House. I declare immediately that I co-chair the Inter-Parliamentary Alliance on China—IPAC—and, like the noble Lord, Lord Alton, I have travelled to the refugee camps where the Yazidis give accounts of the most horrifying events that have taken place to that people. Witnessing and knowing about the detail of genocide can only convince decent, good people that we have to try to find ways of making this a crime that has no place in this world.

The noble Lord, Lord Alton, explained the purposes of this amendment: the genocide amendment. Its purpose is to ensure that there is a preliminary determination by the High Court, not any lower court, as to whether there is genocide. It is pre-emptive: the whole purpose of the Genocide Convention was to prevent genocide by placing a duty on nations to act to prevent it. I will say immediately what this genocide amendment is not: it is not, to use the language of the noble Baroness, Lady Noakes, an effort to swamp the courts. The bar is so high that such a case could not possibly be brought before the High Court of this country and have any serious reception if it were not presented with a whole body of evidence that was highly persuasive and involved eminent lawyers who could testify to the bar having been passed on the definition of genocide.

What else is it not? It is certainly not a breach of the separation of powers—a constitutional issue—because, of course, no court will be determining that a trade agreement has to be revoked. It would be for the court to determine whether the bar had been met—that is, whether events documented a genocide that needed to be prevented. That preliminary determination of the courts would then, of course, have great import for any Government committed to human rights and their treaty obligations on genocide. One would expect any such Government then to revoke a trade agreement. All our trade agreements going forward would contain a clause indicating that, if there were a determination by the High Court, this would be the basis on which an agreement could be revoked.

The final thing that this is not is that it is not about determining the liability of individuals for criminal offences. That is not what the High Court would be doing in this case at all. Individual determinations of criminality would not be before the court and would not be determined by the court.

What does this amendment do? It creates new law; we are not pretending that this is not novel. It is, clearly and distinctly, something new. We have no doubt, given the interest shown in it by international lawyers from other nations, that it would be a great moment in the development of law—a role that Britain has often played. If passed into law, in time many other nations would follow suit. It is a way of giving teeth to international law. One of the questions we have always asked has been, how do you make international law have an impact? How do you get things before a court when we have a Security Council bound up with nations that will never agree to matters getting before certain courts? What we are seeking to do here is really to make a new development in law, which will undoubtedly be copied by other nations and signals the importance we attach to this crime above all crimes. We are going to see it on our statute books as a way of giving it pre-eminence in the world. I have no doubt that other states will replicate it.

I cannot bear the expression, “virtue signalling”. Yes, we will be signalling something about our values. We will be signalling that we will not stand by and do business and trade with countries that are destroying whole peoples. That is something we should be proud to be taking a stance on. Let us please extinguish that ghastly expression “virtue signalling” from the language, because we should be taking stances that show we can express our values and our virtues, without any snide grandstanding by onlookers who are not prepared to act.

I urge this House to vote for this amendment if the Government do not agree to it. I really want them to agree to it, because, as I say, genocide is a crime above all others and we should not demur in our commitment to seeing it end.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, it is a very great pleasure to support this amendment, following the excellent speech of the noble Lord, Lord Alton. He reminded us that this is not the first time we have discussed this matter. I took part in a debate with him on such an amendment back in March 2016, almost five years ago. The noble Lord has raised this issue on more than 300 occasions, ably supported, as he was back in March, by the noble Baroness, Lady Cox, for whom I have the most enormous admiration. At a time last week when, thanks to the First Minister, it was difficult for me to get beyond my garden gate, the noble Baroness was visiting yet another war zone. The whole House should be extremely proud of both the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, who is speaking later in this debate, and the indefatigable energy which they have shown in pursuing this cause. I therefore join with the noble Baroness, Lady Kennedy of the Shaws, and other noble Lords from across the House in supporting this amendment, in order to send a clear message once and for all that we as a nation will not be complicit in genocide.

This amendment introduces a mechanism to equip a competent court to make an interim determination of genocide. It provides for what is a novel, I accept, but crucial approach in effectively responding to genocide, especially as Governments of all shades have lamentably failed in their duty to respond as horrific genocides have unfolded. When we had the debate in March 2016, I spoke about the horrors facing Yazidis and Christian minorities—people who use the language of our saviour, of Christ himself—and we were unable to reach out and help them. I asked how much longer we were prepared to stand by and not acknowledge what was going on, which was a systematic attempt to destroy Christianity throughout the Middle East.

Trade Bill

Lord Forsyth of Drumlean Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 2nd February 2021 Lords Chamber

This all-party amendment is a modest attempt to break the cycle of hatred and violence which will otherwise lead to more suffering of innocent human beings. It is why the House should support it. I hope we will send it back to the House of Commons for further consideration. I will press it to a Division and commend it to the House.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, what a powerful speech from the noble Lord—I hesitate to call him the noble Lord; he is my noble friend. It was an extraordinary account of why the Government ought to accept this amendment. I think all of us in the House pay tribute to him for the fantastic work he has done over the years in supporting human rights and campaigning to have genocide named where it is happening.

I owe the House an explanation for my amendment, which, as Members will realise, is almost identical to that of the noble Lord, Lord Alton, except in one respect. The reason I tabled it—I entirely support the noble Lord’s amendment—is the ridiculous rules being applied in this House on ping-pong. On the one hand, we are told by the Clerk of the Parliaments that we should not come to the House in the current Covid circumstances, and on the other we have rules saying that Members may not speak on these amendments at ping-pong unless they appear in person. I got around that by tabling my own identical amendment, which enables me to speak remotely; the Procedure Committee, or someone, needs to put this right, because it is denying the opportunity to many Members of this House—after all, the previous amendment was passed by a majority of 126—to participate in this debate and provide support to the noble Lord’s amendment while obeying the injunctions of the House not to go in and put themselves and others at risk.

The original amendment, as the noble Lord said, was defeated in the Commons by a very small majority of 11. This amendment responds to the concerns expressed by the Government and some Members in the other place by removing the role of the court in determining whether a bilateral trade agreement should be terminated if a state is found to be involved in genocide. It simply provides for the court to consider whether genocide is occurring.

I must say to my noble friend the Minister, providing us with a letter on the very day we are considering the amendment, as he has done today, is—to put it politely—putting a bit of a strain on people’s ability to read it, consider the arguments and treat them seriously. However, I notice that the terminology in the letter has changed; whereas the Government have always argued before that genocide is to be determined by the courts—the noble Lord, Lord Alton, gave a number of quotes from the Prime Minister and others in which they made that clear—we now have this phrase whereby it should be determined by a “competent court”. I am not sure whether the Government are actually arguing that the High Court is not a competent court; certainly, as the noble Lord, Lord Alton, pointed out, looking at the number of former senior judges, lawyers and Lord Chancellors who support this amendment, I would have thought we could rely on their judgment as to whether the High Court was competent to carry out the duties set out in this amendment.

Recently, after the defeat of the original amendment in the House of Lords, when I asked my noble friend Lord Ahmad why the Government were persisting in their opposition to this, he said he was concerned about the “separation of powers”. This amendment deals with that argument. As the noble Lord, Lord Alton, has pointed out, in the United States both the incoming and outgoing Administrations have taken a view on whether genocide is happening in China. I think the Government are right that this should be determined not politically but by an independent judicial body, and the High Court is fully equipped to carry that out. Therefore, I would have thought this was something which the Government would welcome.

In his letter to us today, my noble friend Lord Grimstone said:

“It is not appropriate for the Courts to be drawn into a decision-making process relevant to the formation of international trade policy.”


This amendment does not do that. He says:

“It is not appropriate for the courts of one state to sit in judgement on whether another state had met its international obligations under a multinational treaty”—


nor does this amendment do that. It does not apply to all trading arrangements; it applies only to bilateral trade agreements.

I know that Ministers, including my noble friend the Minister, have suggested that this amendment would not make any difference because we are not planning on having a free trade deal with China. But only yesterday, in a Written Answer, the Minister said:

“China is an important trading partner for the UK, and we are pursuing increased bilateral trade”,


which is what this amendment seeks to deal with.

Even more surprising today was the news of a government late concession. I have to ask my noble friend: if the Government were making a serious attempt to offer a concession, given the huge support in both Houses of Parliament for my noble friend Lord Alton’s amendment, why have they left it so late that they were unable to table an amendment today? I think both the noble Lord, Lord Collins, and my noble friend Lord Alton made the point that the only conclusion one can make is that if the Government are serious about bringing forward a serious concession, it is necessary for this to go back to the House of Commons. So, while the Whips may be asking us to vote against this, the Minister, with his late concession, appears to be asking us to vote for it, in order that the Government can bring forward that concession in the House of Commons.

I have to say, having seen the concession, my own view is that it is pretty hopeless. It sets up a Select Committee. We already have plenty of Select Committees, and in the other place, as the noble Lord, Lord Alton, has pointed out, the chairman of the Foreign Affairs Select Committee supports this amendment, along with a whole load of luminaries. The Government today have done something that I do not recall ever having seen; they have managed to unite all the lawyers and all the experienced people in the judiciary in agreement on one thing, which is that they support this amendment. The suggestion that by setting up a committee to look at this and debate it will somehow take us further forward is clearly off beam. Parliament can pass resolutions; indeed, as the noble Lord pointed out, it did pass a resolution following the massacre of thousands of Yazidi Christians by ISIL in Iraq. When we had the debate then, we were told that determining genocide was something which was a matter only for the courts.

Surely the key point is that we are party to an international treaty, and that puts us under an obligation. We have obligations to identify, punish and prevent genocide under the genocide convention. All that the amendment does is allow an application to the High Court for a preliminary determination on whether a current or prospective trading partner has committed or is committing genocide. If that is found to be the case, the Government have to present these findings to both Houses of Parliament and indicate what, if any, action they plan to take. That is entirely appropriate; there is no threat to the separation of powers in this matter.

Of course, the amendment is solely about the crime of genocide. It does not apply to other types of international crimes, such as war crimes and so on. I feel very pleased that the noble Lord, Lord Collins, is supporting this amendment, but I am nervous about supporting his, because I think it will be used to argue the case against this amendment, which is rightly and properly honed on genocide.

The amendment also applies only to bilateral trade agreements of the kind which my noble friend the Minister has indicated he is pursuing with enthusiasm with China. But nor is it about China in particular; it seems to me that what has been happening to the Rohingya Muslims is equally a matter of concern and that it is appropriate to consider whether genocide is indeed taking place. And nor does it apply retrospectively.

I have to say that, having listened to my noble friend the Minister, read his letters and absorbed the information from the Government, I find it difficult to understand their position. They cannot argue that we must rely on international mechanisms which have clearly failed. Every dog on every street corner knows that the international procedures will fail because they will be subject to a veto. It does not take away power from Parliament; it offers justice and the chance, which the Government have claimed essential for the last decade and more, for a judicial process which will determine whether or not genocide has taken place.

I support this amendment from my noble friend Lord Alton with enthusiasm. I certainly will not press my amendment, for the reasons that I have explained. I am sure it will be overwhelmingly supported should he divide this House. My advice to the Ministers is this: when you are in a hole, stop digging. The case now is so overwhelming and all the arguments have been dealt with. It would be wise to accept the advice of my noble friend Lord Alton, accept this amendment and enable the other place to debate it properly. I am sure everyone would welcome the Government changing their position and accepting that the arguments they have put have been soundly defeated.

[Lord Cormack (Con) [V]]

My Lords, it is a pleasure and an honour to be able to follow my noble friend Lord Forsyth of Drumlean and, of course, my noble friend—for he is a friend—Lord Alton.

I took part in the debate on the Floor of your Lordships’ House in December on Report. I spoke then in strong support of the noble Lord, Lord Alton. I have tabled this amendment today in my name—which alters a couple of quite important timings—not because I oppose in any way, shape or form the amendment in the name of the noble Lord, Lord Alton, but because I discovered last week that I could not take part in this debate unless I tabled an amendment. I thought things had changed a little since Christmas.

I spoke in your Lordships’ House quite often from September to December, and I came to realise that those of us present had a certain privilege when it came to ping-pong. Since Christmas, I have received almost countless messages, as your Lordships will have done, telling me, in effect, not to come. Some were because of my age—I am over 80—and others because I needed to be vaccinated, and I now have been. But being told not to come does not chime with the injunction that the occupant of the Woolsack recites every day: “Some Members will take part in the debate on the Floor of the House and others by remote means, but all will be treated equally.” This afternoon, all are not being treated equally.