Despite best intentions, the Trade Bill genocide amendment risks serious constitutional and legal consequences
The indoctrination, sterilisation, forced labour and torture of hundreds of thousands of Uighurs in the re-education camps of Xinjiang is abhorrent, writes Bob Neill MP. | PA Images
Instead of the genocide amendment, Parliament should be given full scrutiny and a decisive vote on the negotiating mandate for, and final sign off of, any future trade deal.
Genocide is a uniquely evil crime and is recognised as such in international law. There are obligations upon states, under the Genocide Convention, not to commit it themselves and to prevent its commission by other states. Indeed, even in itself, the very term rightly evokes exceptional moral repugnance and our human desire to end appalling and systematic abuse committed against a persecuted people.
The indoctrination, sterilisation, forced labour and torture of hundreds of thousands of Uyghurs in the re-education camps of Xinjiang is abhorrent. Parliament is right to call it out and to seek swift and robust action against China for it. In doing so, we should not mince our words: this does have all the hallmarks of a genocide.
The Western democracies, ourselves included, have not always acted swiftly and robustly in the past, so the desire to visibly do more is natural and totally laudable. Since direct intervention is obviously not an option, other political and economic pressure upon any potentially genocidal state is entirely proper. Trade is, of course, a legitimate area to consider for such pressure.
There is a desire to prevent the UK entering into bilateral trade agreements with genocidal states - hence the “genocide” amendment to the Trade Bill currently before Parliament. While the intentions behind the amendment are totally admirable, I believe that it risks serious adverse constitutional and legal consequences.
It will change the constitutional balance of decision making, in a way which neither the judiciary, the executive or the legislature appears actually to be seeking
Successive governments have said that the attribution of genocide is a matter for judicial determination. The logical route to do this is through proceedings in the International Court of Justice (ICJ). That requires the agreement of the UN, under whose auspices the ICJ operates. The difficulty is that China and Russia have used their position as permanent members of the UN Security Council to block any proceedings against their interests.
The amendment seeks to get round this by enabling quite a wide class of people, including campaign groups, to apply to the domestic courts in the UK for a preliminary declaration that a state with whom we are negotiating or have negotiated such a trade agreement has committed genocide. Were they to come to the conclusion that it has, a requirement for the government to give Parliament the opportunity to vote down such an agreement would be triggered. At first glance, that can seem an attractive course, but it is not without dangers.
First, it further undermines an already fragile ICJ system. If democratic nations give up on the ICJ, and do their own thing, it will wither on the vine - and the system of international law with it. We should be fighting the political obstruction of the Court by political and diplomatic means, not circumventing it.
Second, whist the determination of genocide per se may be a judicial function, the negotiation and approval of trade agreements is fiercely political. The amendment would inevitably drag the courts into the political arena and open the judiciary up to exactly the same unjustified attacks and accusations as we saw in the two Gina Miller cases relating to Brexit. Despite its best intentions, it will change the constitutional balance of decision making, in a way which neither the judiciary, the executive or the legislature appears actually to be seeking.
Third, if we want to change the behaviour of China towards the Uighurs, as I am sure we all do, I doubt that a declaration of even the highest UK courts will make any difference to a one party dictatorship which does not recognise the concept of independent courts as we do. Beijing will dismiss that as political interference as much as they will a decision of our democratic Parliament, and we will have created tensions in our own constitution in the process.
China’s behaviour is such that I am happy to oppose any future trade deal with it until it ceases its persecution of the Uighurs. With our allies we should be redoubling our efforts to take concerted action to hold China to account now, not waiting for such a deal to be in prospect (which it isn’t at the moment). We must recognise that a political issue requires a political decision.
I believe that a better course is to be found by ensuring Parliament is given full scrutiny and a decisive vote on the negotiating mandate for, and final sign off of, any future trade deal. An amendment to do this has previously been tabled by my colleague Jonathan Djanogly MP, and I urge the government to look again at it.
It would enable us, as elected representatives, to say, “this is a State whose behaviour is so appalling that, whatever the economic advantages they may offer, they are not the sort of country we wish to deal with.” That would achieve the very proper objective of blocking or limiting trade deals with a genocidal, or potentially genocidal, regime, without giving what is, in effect, a constitutional hospital pass to our judges. And MPs would be stepping up to the plate and doing what we are elected to do.
Sir Robert Neill is the Conservative MP for Bromley and Chislehurst and chair of the justice committee.
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