Trade Bill - Committee (5th Day) – in the House of Lords at 6:00 pm on 13th October 2020.
Moved by Lord Alton of Liverpool
68: After Clause 2, insert the following new Clause—“Agreements with states accused of committing genocide Regulations made under section 1(1) or section 2(1) are revoked if the High Court of England and Wales makes a preliminary determination that they should be revoked on the ground that another signatory to the relevant agreement has committed genocide under Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, following an application to revoke the regulations on this ground from a person or group of persons belonging to a national, ethnic, racial or religious group, or an organisation representing such a group, which has been the subject of that genocide.”Member’s explanatory statementThe purpose of this amendment is to nullify trade arrangements made under this Bill if the High Court of England makes a preliminary determination that they should be revoked on the ground that the proposed trade partner has perpetrated Genocide.
My Lords, we come now to Amendments 68 and 76A, which are being taken together. Amendment 76A supersedes Amendment 68 and takes into account remarks made by the Minister, the noble Lord, Lord Grimstone, when we debated Amendment 33 on
Thanks, too, to the founders of the Coalition for Genocide Response, Luke de Pulford and Ewelina Ochab, for their valiant efforts in driving this on. Particular thanks, though, to Members of another place for their supportive, bipartisan references to the amendment in their recent Westminster Hall debate entitled “China: Labour Programme in Tibet” and yesterday’s debate on Uighurs. The former leader of the Conservative Party, Sir Iain Duncan Smith, told the House that
“should such a new clause come to the Commons, I will absolutely support it”.—[
In yesterday’s debate, triggered by 100,000 signatures sent in a petition to Parliament, Shabana Mahmood MP said that she hoped that her colleagues on the opposition Front Bench would back the amendment. In parenthesis, I should mention that I am an officer of the All-Party Parliamentary Groups on Uighurs, Tibet and Hong Kong.
It was back in March 2016 that the noble Lord, Lord Forsyth, the noble Baroness, Lady Kennedy of The Shaws, my noble friend Lady Cox and other noble Lords strongly supported an amendment responding to the unfolding genocide against Yazidis and other minorities in northern Syria and Iraq. The noble Lord, Lord Forsyth, made a characteristically powerful intervention. The Government resisted the amendment and repeatedly told the House that genocide was a matter for the courts.
We did not leave it there, and the admirable Member for Congleton, Fiona Bruce MP, a lawyer, tabled a Motion in the Commons declaring those events to be a genocide, in line with the legal definition of genocide set out in the convention on the crime of genocide of 1948. Although the House of Commons passed it with overwhelming all-party support, the Government again resisted it, saying that only international courts could determine a genocide. This is a circular argument—indeed, a vicious circular argument.
The Government say that the International Criminal Court is the appropriate court of law, neglecting to add that a referral to it from the Security Council will almost always be resisted by the use of a veto by a permanent member. Does anyone seriously believe that the Chinese Communist Party would refer itself to the International Criminal Court to establish whether it had committed genocide in Xinjiang against Uighurs. Waiting for international institutions to act soundly is very commendable, but is a convenient fiction, especially for those who think it should just be business as usual.
What happens in this cycle of buck passing? Following the debate in 2016, it is estimated that 10,000 Yazidis were kidnapped or killed by Daesh, and approximately 3,000 Yazidi women and girls were forced into sexual slavery and are still missing. Many other minorities suffered similarly, as I heard and saw for myself when collecting evidence in northern Iraq a few months ago. For the past four years, Mrs Bruce and I have tabled genocide determination Bills to break the circle—and here, in this Bill, we have the opportunity to do just that.
So how would the provision work? During the debate in Committee on Tuesday
I particularly draw the attention of the Committee to the words that such deals would be revoked if
“another signatory to the relevant agreement or any future trading partner that has hitherto traded with the UK, regardless of whether they have a formal trade agreement, has committed genocide under Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, following an application to revoke the regulations on this ground from a person or group of persons belonging to a national, ethnic, racial or religious group, or an organisation representing such a group, which has been the subject of that genocide.”
As for scope, the noble Baroness, Lady Chakrabarti, rightly insisted during the Committee proceedings last week that it is for Parliament, not government departments, to determine what falls within the scope of the Title of a Bill. Therefore, this amendment is in scope. However, another argument is now also being deployed. The amendment may be in scope, it says, but this is not the Bill in which to do it; this is not the right time or place. However, as Sir Iain points out, that is a standard line that he himself was told to deploy and use during all his years as a Minister. It is never the right time and never the right Bill.
This is a convenient moment to remind the House of the promise given by a government Minister at the Dispatch Box of your Lordships’ House at the conclusion of Report on the Telecommunications Infrastructure (Leasehold Property) Bill. Following speech after speech from all sides pointing to human rights violations in Xinjiang and the direct links of Huawei and the companies in supply chains that use slave labour, the Government agreed to rewrite an amendment on human rights violations and to bring it back at Third Reading. That Bill of course continues to be deferred, and it is no secret that the Government have been unable to draft the promised amendment. Hence, an opportunity is presented here for the Government to honour their promise and to use this vehicle not for the Christmas-tree purposes of hanging on it every issue under the sun but to meet an obligation entered into in Parliament and to act on an issue that enjoys bipartisan and bicameral support.
So how would this provision work in practice, and who might it affect? The key is that the court would decide whether there is enough evidence to justify a predetermination. The threshold is incredibly high. Furthermore, as my noble and learned friend Lord Hope of Craighead pointed out, if they so wished, the Government would have the right to have a contradictor present in the court to argue against such a predetermination. I thank my noble and learned friend for his invaluable advice, not least in pointing me to the High Court of England and Wales rather than the Supreme Court as the relevant body to make the predetermination.
Currently, the most obvious global contenders for predetermination are China and Burma for their crimes against Uighur and Rohingya Muslims. However, if state collaboration in countries such as Syria and Iraq against ethnic or religious minorities, such as the Yazidis, were proven, they too could fall within the terms of the amendment. However, we should be clear: the threshold is exacting, and the amendment will not stop any trade with any country until the High Court has made a preliminary determination that there is a prima facie case of genocide, with the Government able to deploy a contradictor in the court.
The crime of genocide—often described as the crime above all crimes—is carefully defined in the 1948 convention on the crime of genocide, to which the United Kingdom is a signatory. Article II of the convention states that
“genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
As a signatory to the convention, we are required to prevent genocide, to protect those affected by genocide and to punish those responsible. However, if no judicial authority declares a genocide to be under way, we are not obliged to act—hence the vicious circle.
The practical effect of that is illustrated by the Armenian genocide of 1914 to 1923. It is still unrecognised by the United Kingdom as a genocide. It involved the systematic mass murder and expulsion of 1.5 million ethnic Armenians carried out in Turkey and adjoining regions, and was referred to here in your Lordships’ House only yesterday in the context of the current unfolding events in Nagorno-Karabakh. In an intervention last week, I reminded the House of Hitler’s infamous remark as he prepared the Final Solution: “Who now remembers the Armenians?” In yesterday’s debate in another place, Siobhain McDonagh, the MP for Mitcham and Morden, movingly said of Xinjiang:
“If we look on, history will condemn our unforgivable cowardice and ask why those in power did not act.”—[Official Report, Commons, 12/10/20; col. 40WH.]
Increasingly, we might ask, “Who now remembers the Tibetans?”, and in the future will other perpetrators of genocide ask, “Who now remembers the Uighurs?”
Perhaps I may give another example of the vicious circle. The United Nations report into mass atrocities in North Korea, chaired by the eminent jurist Michael Kirby, a judge in Australia, described North Korea—a country I have visited, and I should declare that I am a co-chair of the All-Party Parliamentary Group for North Korea, which I founded—as “a state without parallel”. The report called for North Korea to be referred to the International Criminal Court. It has never happened because this of course would require a referral by the United Nations Security Council, where China would use its veto.
What sort of evidence would be laid before the High Court to short-circuit the vicious circle and to upend the impotence to which the cynical misuse of the veto and the subversion of United Nations agencies has led? During the debate on Amendment 33, we heard allegations from the noble Lord, Lord Hunt of Kings Heath, about forced organ harvesting in China, targeting Falun Gong practitioners. We have heard many accounts from Xinjiang of forced labour, the removal of people from their homes and villages, the creation of what the noble Lord, Lord Adonis, described as concentration camps, the prevention of births, and the destruction of cemeteries, identity and culture. There are almost 400 prison camps in Xinjiang and more are being built. The Muslim faith and culture, language and identity are being obliterated and a surveillance state enforces compliance.
In August, the President of the Board of Deputies of British Jews stated in a letter to the Chinese Ambassador:
“The World will neither forgive nor forget a genocide against the Uighur people”, noting
“the similarities between what is alleged to be happening in the People’s Republic of China today and what happened in Nazi Germany 75 years ago”.
Having seen a video of shackled and blindfolded Uighur Muslims being led from trains to camps, Dominic Raab said this is
“reminiscent of something not seen for a long time.”
Professor Adrian Zenz, a German scholar, describes it as
“the largest detention of an ethno-religious minority since World War II”, while Joanne Smith Finley, a Newcastle University academic, has described what she calls
“a slow, painful, creeping genocide.”
The United Nations Committee on the Elimination of Racial Discrimination has described the region as
“a massive internment camp shrouded in secrecy, a ‘no rights zone’, while members of the Xinjiang Uyghur minority, along with others who were identified as Muslim, were being treated as enemies of the State based on nothing more than their ethno-religious identity.”
I urge noble Lords to read the harrowing testimony of Mihrigul Tursun, a Uighur who managed to escape, who says:
“Each time I was electrocuted, my whole body would shake violently, and I could feel the pain in my veins. I thought I would rather die than go through this torture and begged them to kill me.”
There are increasing reports of Uighurs being subjected to DNA tests, and there is significant suspicion that they have been targeted for forced organ donation and biometric surveillance.
Sir Geoffrey Nice QC, in the final judgment of his independent tribunal into forced organ harvesting in China, concluded:
“Forced organ harvesting has been committed for years throughout China on a significant scale … Falun Gong practitioners have been one—and probably the main—source of organ supply … crimes against humanity against the Falun Gong and … Uyghur … had … been proved beyond reasonable doubt”.
“We are gravely concerned about the human rights situation in Xinjiang”.
A report published last week by the US Department of Labor detailed the list of goods produced by forced labour and child labour. It described the appalling conditions and indoctrination endured by over 1 million Uighurs and said that the “vast scale of abuse” must
“serve as a notice for the world to ask questions, take action, and demand change.”
Shockingly, western fashion brands and big-name companies simply turn a blind eye. In a call this morning with Sophie Richardson of Human Rights Watch, who is based in Washington, she told me that over 400 members of the House, from across the political divide—extraordinary given the toxicity often of US politics—had come together to insist on a rebuttable presumption on goods from China, requiring companies to demonstrate that they had not been manufactured by slave labour.
I was glad to hear the noble Lord, Lord Ahmad of Wimbledon, insist last week that
“The UK is committed to the principle that there must be no impunity for perpetrators of genocide”.
He is right: there must be no impunity, but no lucrative trade deals either. Genocide should be bad for business, but it has not been in the past and it is not now. Think of Nazi slave labour and beneficiaries such as IBM and Volkswagen, which even built a labour camp next to one of its factories to ensure a supply of labour. Think of Hugo Boss, Kodak and Siemens; Siemens even ran factories inside concentration camps, including at Auschwitz, Buchenwald, Ravensbrück and Sachsenhausen. Extermination through labour: what is happening to the Uighurs and others is comparable.
To summarise and conclude, Amendments 68 and 76A do not take a blunderbuss approach but are carefully designed to hit a target. They could not easily be used in trivial or vexatious cases. They are a proportionate response to a monstrous crime. They build on the almost unanimous support of Peers for such a threshold, expressed on Report on the telecommunications infrastructure Bill, and would therefore enable the Government to honour their promise, given during that debate, to find a suitable legislative vehicle to take the matter forward.
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.
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.
As the noble Lord, Lord Adonis, has withdrawn, I call the noble Baroness, Lady Falkner of Margravine.
My Lords, it is always a pleasure to follow the noble Lords, Lord Alton and Lord Forsyth. The noble Lord, Lord Alton, set out the case so comprehensively that I will not detain the House in repeating some of these egregious abuses.
I want to come at this from another angle that speaks directly to the UK’s trade policy and our values and obligations on the international stage. States carry moral weight, so the amendment is entirely pertinent to this Bill.
Thinking about this amendment made me reach for my copy of Philippe Sands QC’s excellent book East West Street: On the Origins of Genocide and Crimes against Humanity. Anticipating resistance to our amendment, I hope to explain why Amendments 68 and 76A are relevant. They will only apply in the most extreme and egregious cases as affects international law and UK trade policy. My arguments go directly to the distinction between the crime of genocide and the broader illegality of crimes against humanity.
At the Nuremberg trials of 1945 and 1946, two outstanding prosecutors, Hersch Lauterpacht and Raphael Lemkin, part of the British and US teams, determined that international laws were needed relating to a pattern of state behaviour that could no longer be allowed to stand and that they were categories of human rights violations that needed to be given a name and recognised—“genocide” and “crimes against humanity”. For Lauterpacht, who was an academic at Cambridge, the killing of individuals, if part of a systematic plan, would be a crime against humanity. For Lemkin, the focus was genocide: the killing of the many with the intention of destroying the group of which they were a part.
As Philippe Sands explains, for a prosecutor today the difference between the two is to do with establishing intent. To prove genocide, you need to show the act of killing was motivated by an intent to destroy the whole group, whereas for crimes against humanity no such intent has to be shown. He explains that proving intent of genocide is extremely difficult, as those involved tend not to leave a paper trail—he should know, being the foremost prosecutor of such attempts.
Lemkin went on to win the argument at the United Nations, as in December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. It was the first human rights treaty of the modern era. Lauterpacht’s contribution inspired the Universal Declaration of Human Rights, of 1948, ironically adopted by the General Assembly only one day after the genocide convention that same December. The law of crimes against humanity has primarily developed through the evolution of customary international law and is not yet an international convention.
But turning to when and where this particular provision from this amendment may be used, it is fair to say the world is more respectful of both individual and group rights, but not universally—hence the suffering of the Rohingya people in Burma and the Uighurs in China. The noble Lord, Lord Alton, and others have spoken about the crimes against them, and this House is well versed in this situation over several years.
I want to close by quoting Raphael Lemkin from a letter he wrote in 1946, which is quoted by Sands. He wrote the letter two years before the genocide convention was agreed. He wrote the letter when he despaired that it would become international law, and he said:
“we cannot keep telling the world in endless sentences: Don’t murder members of national, racial and religious groups; don’t sterilise them; don’t impose abortions on them; don’t steal children from them; don’t compel their women to bear children for your country; and so on. But we must tell the world now, at this unique occasion, don’t practice Genocide.”
If the United Kingdom’s values are to stand for anything in trade, international relations and its footprint on the international stage, they must stand for that.
My Lords, I salute my noble friend Lord Alton for bringing the amendment forward in the style to which we have become accustomed, for he has always been a champion not just of the underdog but of those who are on the verge of death and torture. I rely on his description of genocide and that of my noble friend Lady Falkner. The definition is a complicated one and it is quite correct for the amendment to rely on the High Court to decide whether a country is guilty of genocide.
It is a sad day when we have to debate this, but the amendment is perfectly in keeping with the trade amendments that we have been discussing all day, because we can see the thread: morality and trade go together. The amendment is a very good example of that.
It is sadly no longer the case that genocide is something of the past. We have many modern examples of genocide or steps toward it: the Darfuris in Sudan, the Rohingya in Myanmar, the Christians in Nigeria, the Yazidis. We must now ensure that UK business and consumers do not support or profit from forced labour inflicted on the Uighurs in China. It is shameful that China is in such a position that it controls so many international organisations and enables itself to be free from any attack on its behaviour. That is what makes the amendment so important.
I quote Yehuda Bauer, an Israeli historian who himself escaped from a possible Holocaust and was able to get to Palestine in the days when the United Kingdom prevented most refugees entering Palestine. He said:
“Politics that are not based on moral considerations are, at the end of the day, not practical politics at all. It is out of these considerations that I beg you to permit me to repeat here what I said, exactly eight years ago, in a speech to the German Bundestag: I come from a people that gave the Ten Commandments to the world. Let us agree that we need three more commandments, and they are these: thou shalt not be a perpetrator; thou shalt not be a victim; and thou shalt never, but never, be a bystander.”
He writes in a new book:
“I can no longer bear the speeches void of content and packed with clichés of presidents, prime ministers, rabbis and others … What does it actually mean to say ‘Never again’ when genocides keep recurring? It’s just an empty slogan.”
We are learning that in this country. Holocaust remembrance is a major event every year, but building monuments will not do it. There are countless memorials around the world to genocide and atrocities, but they do not help the victims or teach other countries to change their behaviour. We cannot block China because of the unfortunate structure of the Security Council.
Some people say that we will at least be able to bring the perpetrators to justice, but the number of trials before international tribunals is actually quite small. Yes, there was the Nuremburg tribunal. A Japanese war general was put on trial. Tokyo war crimes were tried. There was a tribunal for the former Yugoslavia, for Rwanda and for Cambodia, and the trials of Saddam Hussein and Charles Taylor. But they are ex post facto: the murders and genocide happened before the trials. It is too late for those who died. There is no indication that the punishment of a trial awaiting them has deterred mass killers.
Moreover, the International Criminal Court does not have universal jurisdiction and its stances are partial. Indeed, President Trump gave an executive order in June threatening consequences against anyone who supported this court. There is now a perception in many quarters that the International Criminal Court has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of those accused are still at large, including Omar al-Bashir, the former President of Sudan. Some €1.5 billion have been spent, and there have been only three convictions for core international crimes. Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators and weak internal management are among the current criticisms of the International Criminal Court.
We are therefore left with nothing else that we can do apart from taking in refugees and supporting this amendment. I wish that there were mechanisms for going into the countries of the accused and rescuing those who are suffering from genocide or coming near to it, but it seems that we cannot do that. Supporting this amendment and perhaps hitting them where it hurts, which is in trade, is the only thing we can do. I cannot see any reason for the Government not to accept it. I support both of these amendments wholeheartedly.
Owing to an error in the listing, the noble Baroness, Lady Northover, will speak later. Meanwhile, I call the noble Baroness, Lady Noakes.
My Lords, like other noble Lords, I pay tribute to the noble Lord, Lord Alton, for his consistent support for oppressed people around the world. That is not in any doubt whatever; nor is the sincerity of the intent behind the amendment. I would, however, like to query whether it will achieve what the noble Lord thinks it might.
I will speak to the revised format of the amendment and concentrate on free trade agreements, not the GPA under subsection (1). The regulations under Section 2(1) apply only to continuity trade agreements. As I understand it, at the moment there is no agreement with either China or Myanmar that would qualify to be implemented by regulations under Clause 2 of this Bill, so I do not think that the amendment will achieve what noble Lords want it to. It would be quite difficult to repurpose the amendment to tackle future trade agreements because what the court could not do is revoke the trade agreement. The only thing that could be got at is some of the implementation legislation. It would be quite difficult to find a formulation that allowed the High Court to revoke, in effect, an international trade agreement. As I have suggested, I do not think that the mechanism of going to the implementation measures will actually work.
In addition, I believe that Parliament has a clear role when new free trade agreements are entered into. If Parliament does not like the counterparties or believes that they might be involved in either genocide or any other form of abuse—my noble friend Lord Forsyth spoke as much about human rights abuses as he did about genocide itself—it can decide not to ratify a free trade agreement and not to implement any legislation that is required to implement such an agreement. However, it is very difficult to go back and undo a free trade agreement once it has been made and ratified. I suggest to my noble friend that even if the courts were able to do that, I do not believe that they are the right place for what is essentially a political decision.
I understand that the noble Baroness, Lady Stroud, has withdrawn so I call the noble Lord, Lord Judd.
My Lords, I thank the noble Lord, Lord Alton, for introducing this amendment. I agree absolutely with those who argued that it is inconceivable that the Government will not accept it.
The situation in China is of course appalling, but if we are going to introduce this legislation and further the cause of justice, we must be consistent. That means that we have to try to do everything possible to avoid arbitrariness, in which cases to be brought become, in a sense, historically arbitrary, because there are too many cases of what appears to be genocide in the world.
It is not just a matter of genocide; the definitions of genocide are clear and you can make an absolute stand. The problem is the issues which are marginal; there is also the problem of the immense human suffering, inhumanity and abuse of human rights and so on, which do not formally become genocide but which are appalling.
The one point I want to make in this context is that if the House, as I am sure it will, overwhelmingly approves this amendment—my congratulations to all those who have brought it forward—this must be the point at which we take extremely seriously, in all our trade deals, abuses of human rights, suffering and injustice. I do not hesitate to make the point.
An example of this is Yemen. Why do we prevaricate on Yemen when it is absolutely clear that we are very much implicated, indirectly, in what is happening there? That has great significance for our trade policy towards Saudi Arabia and others. We must be consistent. This is a wonderful opportunity to mark a point of no return, where as a nation we become known for consistency and firmness in our approach to the application and fulfilment of human rights and the protection of people in the name of humanity across the world.
My Lords, I hope noble Lords can hear me; my computer is claiming that my bandwidth is low, but I hope I am none the less audible. I was going to speak to Amendment 68, but my friend, the noble Lord, Lord Alton, has explained the significance of Amendment 76A, which I therefore support.
Some noble Lords have already gone beyond the term “genocide”, but the narrow scope of this amendment is very important. It is a term for which, as the noble Lord, Lord Alton, has pointed out, there is a very high and exacting threshold, which is important. In a speech on Raphael Lemkin, Michael Ignatieff suggested:
“Those who should use the word genocide never let it slip their mouths. Those who unfortunately do use it, banalise it into a validation of every kind of victimhood.”
It is clear that we should not fall into the trap of calling any sort of human rights abuse genocide, but there are cases where it is important that we acknowledge that something is genocide.
Like the noble Lord, Lord Alton, I have had more than one exchange with the noble Lord, Lord Ahmad of Wimbledon, and the noble Baronesses, Lady Goldie and Lady Anelay of St Johns, when the latter was a Minister, in which Ministers of State have repeatedly suggested that while genocide is obviously a heinous crime, they cannot bring it forward and say that it is genocide—that is only for the courts to decide. As the noble Lord, Lord Alton, has pointed out, that gets us into the most awful vicious circle. How do we ever get to the point where something is declared a genocide and used as a reason not to engage in trade, for example?
The noble Baroness, Lady Noakes, has already raised her concerns about these amendments, suggesting that it is a political decision. I believe that Amendment 76A has found a way to get us beyond the political, because it refers to a preliminary ruling by the High Court. It is hugely important that as a country, we stand up for what we believe in. It is not acceptable simply to say that genocide should be shown no impunity, but then to accept that it cannot ever be brought as a case if the UN Security Council member states have a veto.
This is rather a clever amendment, which I strongly support, and I hope that it has cross-party support. It is not about politics but about values, morality and ensuring that we do what we believe in as a country. We have heard so many examples this evening of cases of genocide that I will not rehearse any more. I will say only that if the Minister cannot accept Amendment 76A, perhaps he might consider tabling a government amendment that would put this issue on the face of the Bill.
The noble Baroness, Lady Altmann, has withdrawn, as has the noble Baroness, Lady Ritchie of Downpatrick, so I call the noble and learned Lord, Lord Hope of Craighead.
My Lords, I have great sympathy for the thinking that lies behind these amendments, and I have huge admiration for the unremitting way that my noble friend Lord Alton carries on his campaign to root out genocide and to bring its perpetrators to justice wherever they can be found. It is a hard struggle. The UN Convention on the Prevention and Punishment of the Crime of Genocide now seems, with hindsight, to be a deplorably weak instrument for dealing with the challenges we face today. It was indeed the first such treaty of the modern era, as my noble friend Lady Falkner pointed out, but it is simply not up to the job.
It was conceived in the mid-1940s as a reaction against the Holocaust that the Nazis’ policy of extermination had created in Europe. It was assumed that it would be enough to require the contracting parties to enact the necessary legislation and, having done so, to require them to bring those within their jurisdiction who were charged with genocide to trial. But we can now see, in today’s world, how ineffective and perhaps naive this relatively simple convention is.
The UN convention against torture of 1987, which we became familiar with in the case of Senator Pinochet, is a much more powerful instrument. He had travelled to this country for health reasons and, no doubt to his great surprise and dismay, found himself open to proceedings brought against him under that convention in Spain. This was because he had travelled to this country, which was one of the signatory countries that was bound by the convention to extradite him to be tried there. The Law Lords in this House, of whom I was one, upheld the Spanish prosecutor’s request, although in the end Senator Pinochet was allowed to return to Chile. I mention this just to make the point that the torture convention is a much more far-reaching instrument, although even it would probably still fall short of what is needed to deal with the crime of genocide in the countries where it is now prevalent, which have been referred to this evening, simply because those countries would almost certainly refuse to release the perpetrators to a country where they could be brought to trial.
We have to make the best of what we have. We cannot go down the direct route of bringing the perpetrators to trial here, so some other route must be found. We cannot just turn our backs on this appalling crime, and we must be grateful to the noble Lord for doing his very best to see that we do not. The greatest barrier that the noble Lord, Lord Alton, has faced has been in trying to devise a mechanism for bringing the issue before our courts. We have to do this here, because there is no standing international tribunal that has universal jurisdiction in this matter.
Our courts can deal only with those over whom it has jurisdiction according to our rules, and as a general rule it can deal only with crimes committed here in this country. Parliament may give our courts extraterritorial jurisdiction over offences committed abroad, but it must do so expressly, and the accused person must be in this country when and if he is to be tried here. We have had extraterritorial jurisdiction in the case of the murder of British nationals committed abroad, since 1861; and, more recently, in the case of the taking of hostages, since 1982; torture, since 1988; and terrorism, since 2000. But even if genocide had been on the list, without a strong UN convention that would enable us to get the people who really matter here to be tried it is almost impossible. So what else can be done?
The procedure which the noble Lord has chosen has my full support. Let me bring the bare bones that we see before us to life. There are two very important advantages, which I think are worth mentioning. First, you need to have someone with a relevant interest to bring a proceeding before the court; the person or group of persons referred to in these amendments will almost certainly satisfy that requirement. This in itself is a big step forward.
Secondly, what it provides will allow for due process in a hearing in full accordance with the rule of law. By this I mean that notice of the proceedings will be served on the Secretary of State and on a representative of the other signatory to the agreement, as they must both be given a right of reply. This is to enable the Secretary of State to appear and present such arguments as he or she thinks fit, and the other signatory, if it wishes, will have that opportunity, too. This is important, because the court will wish to test the argument in support of the application that is brought before it. There will be two questions before it: first, can the court be satisfied that the crime of genocide has been committed; and, secondly, should it grant the remedy to which the amendment refers?
I wish to stress that the procedure the noble Lord proposes is a very serious matter, not a mere formality. It will result, if it proceeds, in a fully reasoned judgment by one of our judges. That is its strength, as a finding by a judge in proceedings of this kind in the applicant’s favour will carry real weight, quite apart from the effect it will have on the relevant agreement. I think that it will achieve its object, but if a refinement in its wording is needed to be sure that it will do so, that refinement should certainly be made. I, too, very much hope that the Minister will support this amendment.
My Lords, it is imperative that we support Amendment 68, proposed by the noble Lord, Lord Alton of Liverpool. I commend him on his excellent speech; he did indeed speak from the heart.
At the outset, I would like to say that in 1972 my family and thousands of Asians were expelled from Uganda by General Amin. I have personal experience of ill treatment being imposed on innocent people by a tyrant. I have spoken previously about crimes against humanity in your Lordships’ House. I would like to declare that I am the co-chair of the APPG for the Prevention of Genocide and Crimes Against Humanity.
I commend the noble Lord, Lord Alton, on this amendment, which sends a clear message that the UK will not be associated in any way with regimes found by law to be committing genocide. The amendment would mean that regulations made under this Bill to authorise the implementation of trade agreements would be revoked if the High Court of England decides that they should be, on the grounds that a signatory to a relevant trade agreement has committed genocide.
The amendment would also grant the right to persons or groups of persons belonging to national, ethnic, racial or religious groups that have been subjected to genocide to oblige the UK courts to request that a trade agreement be revoked. It is right that the High Court decides, as the court will be impartial and decisions will be arrived at logically.
In 2017, the Conservative Party published the Kigali declaration affirming our commitment to prevent and punish genocide. The declaration states:
“Whether at home or abroad we will seek to protect individuals and groups who are targeted because of their identity, from hate crime to genocide to violent extremism. Our responsibility to protect begins at home but extends around the world.”
This requires us to ensure that any potential violation of human rights is considered before doing business with any country. If the United Kingdom maintains trade agreements with states committing genocide, we risk being seen as complicit in these crimes and we send a message that our trading partners may commit genocide without any consequence.
This amendment must be accepted, because the UK is a signatory to the UN Convention on the Prevention and Punishment of the Crime of Genocide and the 2005 Responsibility to Protect commitment. Furthermore, the International Criminal Court in 2001 incorporated the Rome statute into English law. These commitments mean that we have a legal and moral obligation to act against genocide.
I and other Members of your Lordships’ House spoke on Second Reading of the Medicines and Medical Devices Bill about the treatment of Uighurs and Falun Gong in China. Evidence of the Uighur genocide is growing. The Network of Chinese Human Rights Defenders has estimated that 1 million Uighurs have been detained and organs are being harvested on a massive scale. The Australian Strategic Policy Institute report suggested that 80,000 Uighurs were transferred out of Xinjiang between 2017 and 2019, and they are likely working under forced labour conditions while supplying global brands.
The proposed amendment is modest. The United States has gone much further to condemn and punish those responsible for those human rights abuses. Earlier this year, Congress passed the Uyghur Human Rights Policy Act, which places sanctions on officials responsible for oppression of Uighurs in Xinjiang. US companies with operations in Xinjiang have been compelled to ensure that their supply chains are free from forced labour.
Furthermore, US Customs and Border Protection has issued five withhold release orders barring imports from such producers of cotton, apples, hair products, computer parts and other goods in the Xinjiang region. The House of Representatives recently passed the Uyghur Forced Labor Prevention Act with almost unanimous support from both main parties. If this law, which now has to go to the Senate, is passed, it will ensure that goods made with forced labour in the Xinjiang region will not enter the US market.
Through these Acts, the United States holds the Chinese Government accountable and ensures that Americans do not benefit from goods created by forced labour or under potential genocide. This amendment goes some way towards this, by giving UK courts the option to remove trade co-operation with states found to be perpetrating genocide, establishing a principle that may be taken further in future legislation.
This is a modest amendment, but it has limits in practice. By its referral to Sections 1(1) and 2(1) of the Bill, which concern the implementation of the UK’s obligations in the Agreement on Government Procurement—the GPA—the powers that it would grant to the High Court would not pertain to all trade agreements but would only apply to the 48 members of the GPA, to which China is currently acceding. Furthermore, the amendment would mean that any successful application in the High Court would not prevent trade with a genocidal regime but would only mean that the existing trade agreement was revoked. This power is an important symbolic gesture to demonstrate the United Kingdom’s condemnation of genocide and our refusal to co-operate with those who perpetrate it.
It is important that we accept this modest amendment, to ensure that the UK is never seen to condone acts of genocide and crimes against humanity. We must establish a precedent, which must be built on, as there is nothing currently in UK legislation to ensure that trading is aligned with obligations on the prevention or punishment of genocide.
My Lords, this has been a passionate debate on an appalling subject: the brutality of man against man. It should be a given that we do not have a trade deal with a country that is responsible for genocide, but pressure can be irresistible and there will be little scrutiny of new trade deals going forward. As ever, I thank the noble Lord, Lord Alton, for ensuring that human rights are always at the forefront. I do not know how he can sleep, with all that he knows threading itself around his mind. Not everyone can do what he does. It is easier to turn aside, but we cannot and must not do so with this Bill.
We discussed this issue, as the noble Lord explained, at an earlier stage of the Bill. The Minister argued then that the Bill deals with continuity agreements and that they do not involve trading partners who might be implicated here. In the light of that earlier discussion, the movers recast Amendment 68 so that culpable regimes are more easily identified, as the noble Lord, Lord Alton, said. He also makes the point that the purpose of the Bill is drawn more widely than simply continuity agreements, including making
“provision about the implementation of international trade agreements” and similar wider definitions. That is why Amendment 76A is within scope.
The United Kingdom is a signatory to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which was established after the Nazi genocide. Many said then, “Never again”, but as the noble Baroness, Lady Deech, powerfully said, those are often empty words. As a signatory, we are required to prevent, protect and punish. The legal definition and threshold are set very high, as others have said. We know the difficulty of seeking international agreement that genocide has been carried out. After much delay and prevarication, a genocide was declared in Rwanda. However, even the Human Rights Council, set up to try to ensure that those whose record means that they should not qualify to be on it, now has its hands tied by those elected to be its members, including, of course, those Security Council vetoers, Russia and China.
The International Court of Justice has determined that the actions of Myanmar in relation to the Rohingya Muslims are genocide, but the noble Baroness, Lady Deech, has pointed to the limits of the ICJ. The noble Lord, Lord Alton, has cited the conclusions of the China Tribunal, headed by Sir Geoffrey Nice, whose work in the Balkans war crimes trials gives him the most terrible background to lead this, with crimes against humanity proved beyond all doubt. However, we also know that the scales are tipped when it comes to holding China to account. My noble friend Lady Smith of Newnham makes clear the hurdles for holding anyone to account on genocide.
Given the difficulty of establishing this internationally, the amendment proposes that the High Court should be asked to make a determination. I agree with my noble friend Lady Smith and the noble Baroness, Lady Deech, that that is an astute way to do this. If the court believed that the threshold of the 1948 genocide convention had been reached, trade arrangements with the offending country would be nullified. We need various means, including some of those mentioned by the noble and learned Lord, Lord Hope. I am struck by the noble and learned Lord’s conclusion on the rule of law here and the strength that that brings to this issue. The arrangement proposed by the noble Lord, Lord Alton, is in keeping with those that some key American lawyers are now arguing should be applied to the UN Security Council, which could itself be taken to the ICJ if it is not addressing genocide, given the responsibility of each country to adhere to the convention.
One would hope that amendments such as these were not required and no doubt the Minister will say so, as did the noble Baroness, Lady Noakes. However, we know that genocide continues to take place and we must face that. It is easier to turn away and that is why we must put this protection in the Bill.
My Lords, I add my thanks to the noble Lord, Lord Alton, for his amendment and his excellent speech, which said everything that needs to be said around this very difficult area, with considerable skill and a huge amount of information that we will need time to absorb.
The House seems united in the view that this is a serious issue that has a lot of support and needs to be implemented. I will be interested to hear how the Minister responds to it. What is most attractive about the amendment is the innovative use of the courts as a way of trying to give a point of factual accuracy around which decisions can be taken. I have not seen this before; it is not something that we have ever had proposed and it is worthy of further consideration. Indeed, it may have wider applications.
That puts the House in a bit of a spot. If it is clear that there is a way of checking, in a way that is respected in the use of our courts, to assess whether or not an action needs to be taken, are we not put on notice to live up to our responsibilities as signatories to this convention to prevent, protect and punish? Indeed, if we care about our moral values as a nation, we should have no grounds not to support the amendment.
Having said that, I wonder whether it is worth picking up one or two points that suggest that a bit more work on the amendment might make it achieve even more. Others have picked up on the question of why it is applied only to rollover agreements when it has the capacity to deal with all free trade agreements. Although this is a terrible thing to say, why stop at the issue of genocide? Are there not other egregious issues that would need to be considered in the same class as genocide? As my noble and learned kinsman Lord Hope said, the torture convention may well be an opportunity for further thinking around this area.
While I support what has been said today about the proposal and I want to give whatever assistance we can to the movers of the amendment, I suggest that maybe there should be other discussions before we reach Report, because what is said in the amendment goes with the grain of so many other amendments that we have looked at around the question of human rights that it would be good to see if we could find something that brought them all together. We need something that is helpful to the broader causes that the noble Lord, Lord Alton, espouses but is capable of bringing in other issues that other Members of the House also care about.
My Lords, I turn to Amendments 68 and 76A in the name of the noble Lords, Lord Alton of Liverpool, Lord Forsyth of Drumlean and Lord Adonis, and the noble Baroness, Lady Falkner of Margravine, which seek to ensure that any regulations made under Clauses 1 or 2 are revoked in the event that the High Court makes a preliminary determination that they should be revoked because the partner country has committed genocide. I was very thankful for the opportunity to discuss the amendments with the noble Lord, Lord Alton, and my noble friend Lord Blencathra yesterday.
I unequivocally reiterate the Government’s commitment to upholding human rights and opposing genocide in all its forms. It is the British Government’s policy that any judgment on whether genocide has occurred is a matter for judicial decision, rather than for government or non-judicial bodies. Our approach is to seek an end to all such violations of international law and to prevent their further escalation, irrespective of whether these violations fit the definition of specific international crimes. Any determination as to whether war crimes, crimes against humanity or genocide have occurred is a matter for competent courts after consideration of all the evidence available in the context of a credible judicial process.
As your Lordships are aware, the Bill enables the Government to ensure continuity in relation to specific agreements we were party to through our membership of the EU. These agreements met international obligations in respect of human rights and we have maintained, and will continue to maintain, those obligations in the agreements we sign. Should we have any concern about the behaviour of any partner country in relation to human rights abuses, we would take it up with them through the appropriate channels. In continuity agreements —the subject of our deliberations today—there are often suspensive clauses that allow us to suspend agreements in the event of human rights breaches.
We have heard again today, as we did during the debate on Amendment 33, the passion of the noble Lord, Lord Alton of Liverpool. The examples he gave of the Uighur Muslims in China are truly chilling. I understand and share his concerns; the Government condemn any human rights abuses, including the egregious situation in China. As the Foreign Secretary told the Foreign Affairs Committee in the other place on
I do not disagree with what the noble Lord, Lord Alton, said about the amendment he and other noble Lords have tabled being within the Bill’s scope. However, and I say this with regret and almost in a sense that I am using bureaucracy to counter the most passionate arguments that we have heard today, Clauses 1 and 2 can be used only to implement the GPA and non-tariff obligations from those continuity agreements we signed as a member of the EU before exit day. China is not a party to the GPA. Additionally, China does not have a free trade agreement with the EU, so Clause 2 cannot be used to implement any future free trade agreement with it.
I am of course very happy to discuss these matters further with the noble Lord, Lord Alton, and the other sponsors of the amendment. I reassure noble Lords that the Government take issues relating to genocide extremely seriously. I hope, for the reasons that I have offered, that the noble Lord will have confidence to withdraw the amendment.
There are no requests to speak after the Minister, so I call the noble Lord, Lord Alton of Liverpool.
My Lords, first, I thank the Minister for the way in which he has addressed the Committee, but also for the time he has given, not just yesterday but at previous meetings, and throughout the discussions we have had so far. I know that he is trying to be constructive about this. I know that he would rather it were not in this Bill but he speaks for the entire Government, not just the silo of the Bill or his own department, when he addresses your Lordships’ House. I remind him of what I said earlier specifically about the undertakings that his own Government gave from that same Dispatch Box that an amendment would be crafted in response to the telecommunications infrastructure Bill. That has been addressed in neither the Minister’s reply nor the correspondence I have had with him and other departments involved in this. Indeed, at a previous meeting, not only was the Department for International Trade represented but the DCMS, Home Office and Foreign Office. I have done my best to try to weave this across government departments and to get a response from all the Ministers involved.
We have an opportunity inside this legislative vehicle. I will not pretend that I have the skills or the ability to craft amendments in ways that overcome the bureaucratic hurdles that the Minister referred to a few moments ago. I was pleased to hear the noble Lord, Lord Stevenson, say that he thought this was an innovative use of the courts. The noble Baroness, Lady Smith of Newnham, talked about this as being a different way of approaching the issue. Others have talked about the astute nature of the amendment in trying to navigate these difficult waters.
When the Minister says that he has unequivocal opposition to genocide in all its forms and that is the Government’s position, I do not doubt that. I applaud it. I referred earlier to the remarks of the noble Lord, Lord Ahmad of Wimbledon, and the unequivocal stand that he has taken on these issues. But the question for me, therefore, is: what can we do about it? It is almost as though the spirit—the shadow—of Raphael Lemkin has been here throughout the debate. My noble friend Lady Falkner was the first to mention Lemkin, but so did the noble Baroness, Lady Deech, and others. Raphael Lemkin lost 49 of his relatives—49 people were murdered in the Holocaust who were direct relatives of his—and coined this word: genocide. It is not a word to be used lightly. Again, I think it was the noble Baroness, Lady Smith, who made this point, rightly: it is not hyperbole. This is a word that should be used only in very extreme circumstances. That is why the amendment is crafted to do precisely that.
It is interesting that the Minister said that this was not a political decision but a judicial one. In my correspondence with the noble Baroness, Lady Noakes, this is an area about which we have disagreed because she herself has said that she thinks it should be a political decision. But the Government’s position is that it is a judicial one. Yet this gets us into the vicious circle I described earlier, where there is no competent court because of the vetoes used to prevent it being dealt with at an international level.
That takes me to the remarks of my noble and learned friend Lord Hope of Craighead. We were treated to an extraordinary, spellbinding and authoritative description by someone of huge standing. He told us at the conclusion of his remarks that this amendment will achieve its objective. However, he said that if refinement is necessary, he hopes that the Government will be willing to participate in providing it between now and Report. He said that it provides due process in accordance with the rule of law, and throughout the debate other noble Lords have commented on the importance of the rule of law in these circumstances. He also said that this is a very serious matter and that we have provided a mechanism in the amendment to tackle it. My noble and learned friend is a very wise man with huge judicial experience, and I hope that the Committee will take due note of what he said.
Everyone who has participated in the debate has made a valuable and interesting contribution. The noble Lord, Lord Judd, talked about the immense inhumanity and suffering experienced by so many people, and he said that it should be written into the DNA of all our trade agreements that we should act accordingly when doing business. As others have done, he talked about the importance of our values and where they stand in the world. The noble Lord, Lord Forsyth, reminded us that business has a duty to ensure that it does not profit from genocide. The noble Baroness, Lady Deech, said that morality and trade must walk hand in hand, and that we must hit where it hurts. My noble friend Lady Falkner reminded us not only of the origins of the word “genocide” but its implications in the way that we proceed in trying to deal with it.
The noble Lord, Lord Sheikh, said that the amendment would send a clear message. He talked about its symbolic importance and the creation of precedence. The noble Baroness, Lady Northover, reminded us of the manipulation of international bodies. She specifically referred to the Human Rights Council, where even today more votes are taking place on its membership. It seems rather like the burglar and the watchdog becoming one and the same thing when China has such a leading role in an organisation of that kind.
I will conclude in a moment. The noble Lord, Lord Stevenson, said that there are other egregious offences that we might also wish to deal with. I simply say to him that, if that were possible, I wish that we would. However, the man who tries to go everywhere ends up going nowhere, and the man who tries to catch every hare ends up catching none.
The amendment is carefully drafted for a specific and particular purpose, which is to try to catch those who have been responsible for the kinds of genocides that we have heard about—the historic genocides that have been mentioned in the debate and those being perpetrated in the world today. Yet, in the end, my view is that the stories will not determine events. If the amendment were agreed, the High Court of England and Wales would decide whether there was a case to be answered. In those circumstances, it would trigger the removal of the agreements that had been entered into, whether they were past agreements or not. Therefore, I remind your Lordships to look again at the wording of the recast amendment, which was drafted after listening very carefully to what the Minister said at an earlier stage.
I hope that, as we go away from the debate tonight, we will see this as the beginning of a continuing discussion with the Government. The Minister should surely see the political realities after hearing the spokesmen for the Official Opposition and the Liberal Democrats and people from the Cross Benches, and, perhaps even more importantly from his point of view, voices such as those of the noble Lords, Lord Forsyth and Lord Blencathra, and the right honourable Iain Duncan Smith MP, who is willing to co-sponsor this amendment in the House of Commons if it is incorporated into the Bill. Having seen and heard some of those realities, I hope that the Government will now work with us to iron out any imperfections in the amendment and to bring it back on Report in a better form. On that basis, I beg leave to withdraw the amendment.
Amendment 68 withdrawn.
Amendment 69 not moved.