Trade Bill — House of Lords, 2021-02-23
Topic: International Affairs
Gerald Grimstone (Conservative, Centre-right): My Lords, in moving Motion B I shall with the leave of the House speak also to Motions B1 and B2 I turn to Commons Amendments 3C and 3D on the Order Paper, concerning genocide and free trade agreements. This amendment was passed in lieu of amendments tabled by the noble Lords, Lord Collins and Lord Alton. Perhaps I may begin by clarifying some points of parliamentary procedure concerning these amendments. As noble Lords will be aware, the amendments in the other place were considered on 9 February as part of a so-called package with which the Government disagreed, supporting instead an amendment in lieu tabled by the chair of the Justice Select Committee The Lords amendments with which the Government disagreed concerned the most serious of human rights violations—namely, crimes against humanity and genocide. Both amendments sought to involve Parliament, in different ways, in considering the implications of such violations for trade policy, and both sought to impose a duty on the Government to act in specified ways. Accordingly, the Government supported an amendment in lieu which would have the effect of affording Parliament substantive opportunities for scrutiny, in precisely the manner envisaged by your Lordships’ amendments. That is the amendment before the House today, which the Government fully support The packaging of amendments is a common, long-standing parliamentary procedure which has come about to assist with the complexities of ping-pong. The practice of grouping together as a package a number of related amendments has developed in later stages of the exchanges between the Houses for the purposes of decision-making as well as debate. As any keen reader of Erskine May will attest, ping-pong is one of our most complex legislative stages. This approach allowed the Government to support the reasonable middle-ground concession now before your Lordships on the Order Paper, which ensures a clear role for Parliament where concerns about genocide are relevant to the UK’s negotiation of bilateral free trade agreements, without breaching the Government’s red line on the courts I will now say something about the role of the courts, as there has been some degree of misapprehension on this point in recent debate. Noble Lords have observed, quite rightly, that it is the Government’s long-standing position that the determination of genocide is a matter for a competent court. The question has now been posed on numerous occasions as to why the Government did not support the amendment previously tabled by the noble Lord, Lord Alton. It should be recalled that this amendment sought to expand the jurisdiction of the High Court—a civil court—to allow it to make preliminary determinations of genocide It is important to distinguish here between the crime of genocide as committed by an individual and violations of international obligations related to genocide that may be committed by a state. States can, for example, be responsible for genocide committed by an individual where that individual’s acts are attributable to the state. The UK has international obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the Rome Statute of the International Criminal Court, to criminalise genocide committed by individuals. Of course, we have done this in the International Criminal Court Act 2001 In the UK, criminal courts are competent to try the crime of genocide where it is committed by an individual. Under the 2001 Act, domestic criminal courts in the UK are competent to find individuals guilty of genocide where the case is proved to the criminal standard of "beyond reasonable doubt". UK courts can determine whether a genocide has taken place when an individual is charged with the crime, wherever the alleged genocide took place. Both UK nationals and residents can be prosecuted, including those who became resident in the UK after the alleged offence took place International courts such as the International Court of Justice are also competent to determine whether states have violated their international obligations in respect of genocide. However—this is the important point—the previous amendments from the noble Lord, Lord Alton, sought to give to a domestic civil court jurisdiction that it does not currently have to make preliminary determinations about the actions of foreign states. I will turn to the noble Lord’s Amendment 3E on the Order Paper before us today in just a moment, but first I will conclude these remarks on the Government’s position on the determination of genocide Let me be very clear on this point: the Government will not agree to expanding the jurisdiction of our courts to consider cases of state genocide. The Government’s position does not rest on any consideration of whether our courts have the capacity to determine such difficult cases; it is based on strong and very real concerns that expanding the jurisdiction of our courts in this way would bring about a change in our constitutional structures by the back door In today’s Amendment 3E in lieu, in the name of the noble Lord, Lord Alton, and similarly in Amendment 3F in lieu, in the name of my noble friend Lord Cormack, we are faced with a different approach. This approach seeks to give the power to make preliminary determinations on genocide to an ad hoc parliamentary committee, comprising five Members from either House, where those Members have all held high judicial office. It should be clear, for the reasons I have just outlined, that such an approach is also problematic, given that it conflicts with the Government’s settled policy on genocide determination that it is for competent courts to make determinations of genocide, not parliamentary committees —even, and I say this with the greatest respect, when they are composed of eminent and learned former judges The establishment of an ad hoc parliamentary judicial committee would represent a fundamental constitutional reform. It would blur the distinction between courts and Parliament and upset the constitutional separation of powers. Of course, establishing any new committee would also have implications in terms of parliamentary time and resources, and such a drawn-out process could continue for months or even years. While it is of course up to Parliament to decide how to organise its own affairs, establishing such a committee in legislation would amount to a constitutional reform that I have to say that the Government cannot accept Ultimately, the question of how we respond to concerns of genocide as it relates to our trade policy is a political question. Indeed, these Lords amendments envisage as their end point a political process to involve Parliament in holding a Government to account, and they would impose a legal duty on a Minister of the Crown to table a Motion for debate in Parliament once the ad hoc committee and the relevant Select Committee had reported. This requirement for a debate is at the heart of the amendment passed by the other place on 9 February. The Government support that amendment and call on noble Lords to do likewise The amendment delivers on your Lordships’ desire for parliamentary scrutiny by ensuring that the Government must put their position on record, in writing, in response to a Select Committee publication raising credible reports of genocide in a country with which we are proposing a new bilateral free trade agreement. The amendment delivers on your Lordships’ wish to impose a duty on the Government to guarantee time for parliamentary debate, in both Houses, should concerns about genocide arise. This is an important point: the amendment also affords to the Commons Select Committee the authority and responsibility to draft the Motion for debate, thereby taking this out of the Government’s hands. This is a significant concession, which ensures that Parliament is in the driving seat I want to clear up one last misconception before I conclude. It has been claimed, since the Government supported this amendment, that we are now switching our position away from determination of genocide by competent courts and asking Parliament to make these determinations. Nothing could be further from the Government’s view. I repeat: determinations of genocide are for competent courts, including domestic criminal courts and relevant international courts. We are not asking Parliament to make a determination on whether genocide has occurred. That is a very high standard and perhaps impossible for a committee to do. We are instead supporting a process that guarantees scrutiny and debate where Parliament has established for itself that "credible reports" of genocide exist and this is reflected in its own published reports. This is not the same as a judicial finding, nor is it intended to be. I am afraid we do not support the new amendments in lieu on the Marshalled List that seek to give a quasi-judicial role to an ad hoc committee, because these amendments conflict with settled government policy. We support the concessionary amendment passed in the other place precisely because the Government are committed to preserving their policy on the jurisdiction of the courts. I beg to move Motion B1 (as an amendment to Motion B)