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.