Genocide Determination Bill [HL]

Lord Wolfson of Tredegar Excerpts

2nd reading
Friday 17th July 2026 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lord, I pay tribute to the noble Lord, Lord Alton of Liverpool, not only for introducing this Bill but for decades of tireless work exposing some of the gravest human rights abuses across the world. Whether campaigning for victims of religious persecution, standing up for prisoners of conscience or ensuring that those suffering unimaginable atrocities are not forgotten by Parliament, he has shown remarkable consistency and moral courage. He referred to himself as a young MP. When he was a young MP, my parents were his constituents, so I blame the noble Lord for my interest in politics thereafter. I say to any Members of this House who share that concern: refer it to the noble Lord, Lord Alton. I also thank the noble Lord for the time he gave me, together with Professor Ochab, whose work on genocide prevention and accountability has enriched this debate and from whom I learned a lot in our discussion.

Having listened to the debate, I suggest that there is remarkably little disagreement on the principles across your Lordships’ House. Genocide is rightly described as the “crime of crimes”. It is an assault not only on individual victims but on humanity itself. We, the United Kingdom, are a party to the genocide convention. We accept, therefore, both morally and legally, obligations to prevent genocide and punish those responsible.

I do not doubt for a moment the sincerity of the objective that underlies the Bill. The noble Lord, Lord Alton, seeks to ensure that, where there is credible evidence that genocide is taking place or there is a serious risk that it might occur, there is an effective legal mechanism capable of triggering action. That objective deserves the support of the whole House. The noble Lord is entitled to put a difficult question to Governments of every political persuasion because, for many years, different Governments of all colours have maintained that genocide is a matter for determination by competent courts and not by politicians. Yet, in some of the situations that have caused the greatest concern to this House, there has been no international court capable of making such a determination. So the noble Lord is entitled to ask whether there is a gap between the Government’s long-standing policy and the practical means by which that policy can be implemented. That is not a frivolous or political point; it is a serious constitutional question and it deserves a serious answer.

But identifying a problem does not necessarily mean that every proposed solution is the right one. The question before us is not whether genocide should be prevented: plainly, it should. It is also not whether those responsible should be brought to justice: plainly, they should. The real question is: does this Bill address that perceived gap in a way that is constitutionally coherent and practically effective? With the greatest respect to the noble Lord, I am not yet persuaded that it does. There is, I suggest, an important constitutional principle at stake. Our constitution works best when each branch of the state performs the function for which it is institutionally equipped: Parliaments legislate, Ministers govern—at least they are meant to—and courts adjudicate. Each is independent of the others, but each has its own constitutional role, and we should hesitate before asking one branch of the state to assume responsibilities that properly belong to another.

This Bill would confer upon the High Court in England and Wales, the High Court in Northern Ireland, and the Court of Session in Scotland a wholly new jurisdiction to make preliminary determinations that genocide is occurring overseas, that it has occurred overseas or that there is a serious risk that it may occur overseas. Having listened to speeches from across the House, I understand why that proposal has an obvious attraction. It seeks to remove profoundly difficult questions from the political arena and place them before an independent judiciary. But our judges do not conduct the foreign policy of the United Kingdom. They do not determine diplomatic priorities. They do not assess intelligence. They do not balance national security considerations. They do not negotiate with foreign Governments—and nor should they. These are functions entrusted by our constitution to Ministers, who are accountable to Parliament for the decisions they take. It is one thing for the courts to determine legal rights; it is quite another to ask them to make findings that may have immediate and profound diplomatic consequences for the United Kingdom’s relations with other sovereign states.

That brings me to what, for me, is perhaps the greatest constitutional concern raised by this Bill. Von Clausewitz famously said that war was a continuation of politics by other means. Too often today it appears that law has become politics carried on by other means. We call it “lawfare”. We see it internationally. We sometimes see it domestically, and we should be careful before encouraging more of it before our own courts. We should be cautious before inviting our own courts to become yet another arena in which international political disputes are pursued through litigation.

That concern is reinforced by the remarkable breadth of the jurisdiction that this Bill proposes to create. Noble Lords should have a quick glance at Clause 1. An application can be brought by a person

“belonging to a national, ethnic, racial or religious group, or an organisation representing such a person”.

There is no requirement that the applicant be a British citizen or a British resident, or that the perpetrator be before our courts. Indeed, there is no requirement that the actions have any connection whatever with the United Kingdom. In substance, therefore, Parliament would be conferring on our domestic courts what would amount to a roving international jurisdiction to make judicial findings in relation to allegations of genocide occurring anywhere in the world. Contrary to the words used by the noble Baroness, Lady D’Souza, who called this a “modest” Bill, I suggest that that represents a very serious and major constitutional step.

This is not a criticism of those who would use the Bill to bring such applications. If Parliament creates a jurisdiction, people will understandably want to fill it. My concern is directed not at the litigants but at the legislation, because proceedings of this nature will inevitably be used, at least in some—and, frankly, probably in many if not most—cases not simply to vindicate legal rights but to advance political objectives. That is the reality of modern international litigation. My concern is that we should not likely draw our own courts into that sphere. Our courts exist to determine legal controversies with legal consequences. They do not exist to issue advisory opinions on international disputes.

When I was at university, I had the idea that, in order to get a first, I would try to predict the questions and issue an application asking a High Court judge what the answer would be—until my supervisors pointed out that courts do not exist to answer hypothetical questions or give advisory opinions. They do not give advisory opinions. The ICJ might, but the High Court of Justice of England and Wales should not. Our judges command international respect precisely because they determine actual legal disputes independently and impartially, and we should hesitate before placing them at the centre of some of the most politically sensitive controversies in international affairs.

There is then the practical operation of the Bill itself. Like the noble Lord, Lord Griffiths, I focused very much on Clause 3, which requires the Secretary of State to refer a preliminary determination from our courts to the International Court of Justice, the prosecutor of the International Criminal Court, the Security Council or other competent United Nations bodies, but only where jurisdictional requirements are met. That immediately raises an important question: what happens when none of those bodies has jurisdiction? What practical consequences would follow from the preliminary determination of our domestic court? Have we simply therefore created a mechanism that results in a judicial declaration that no international body is capable of acting on?

All these points seem to me to be legitimate questions. I respectfully suggest that they require fuller answers before Parliament creates an entirely new jurisdiction for our highest domestic courts. I note that the Bill provides that the Minister can make regulations, but that is not a proper way to legislate in this field. Parliament is entitled to see exactly how it would work in practice before deciding whether to pass the Bill.

Of course, none of this should be taken as diminishing the horror of genocide. That ought not need to be said, but I say it anyway. Nor is this a criticism of the noble Lord’s motives. On the contrary, I say respectfully that the noble Lord, Lord Alton, has provided us a great service by forcing us to confront this very uncomfortable question. How do a Government, whose long-standing policy is that genocide should be determined by courts, respond when no competent international court is realistically capable of acting? That is the question underlying the Bill. It is a serious challenge and deserves a serious response. My point is: the fact that there may be a gap does not mean that this Bill fills it.

For those reasons, while I look forward to engaging—always, I hope, constructively—with the noble Lord as the Bill proceeds, and while I hope we can continue to explore ways of strengthening the United Kingdom’s ability both to respond to and to prevent genocide, I cannot support the Bill in its present form. The noble Lord has identified a very important problem. At the moment, I simply remain unpersuaded that this Bill provides the correct constitutional answer.