There is no trade deal negotiation between the UK and China. And the way the world is changing, there isn’t going to be one.
That being so, why has an amendment been tabled to the Trade Bill, which will be considered in the Commons tomorrow, that would empower our courts to consider claims of genocide and revoke trade deals with countries found guilty of it? The amendment is aimed fairly and squarely at China over its treatment of the Uighurs.
The answer is that campaigners against genocide, or the Chinese Communist regime (or both) are frustrated twice over.
First, there is no way that a case against China would be heard by an international court. It can block hearings both by the International Court of Justice, since these need the consent of the parties concerned, and to the International Criminal Court, as a member of the UN Security Council. And it would smother any special tribunal plan at birth.
The second is that, when campaigners seek to evade that obstacle by finding ways of taking cases to domestic courts, the Government replies that these shouldn’t rule on them…adding that they must therefore be considered by international courts, such as the International Criminal Court of the International Court of Justice.
This circular logic infuriates campaigners, and their anger, as expressed by David Alton recently during the Lords’ consideration of the Bill, is understandable. However, it doesn’t necessarily follow that the Government’s position is wrong. What are its main arguments? Essentially, there are three.
First, that our own courts are unwilling to hear genocide cases, being nervous of rushing in where international ones are wary of treading. (Only some of the Rwandan and Bosnian killings during the 1990s have been so designated.) But it may well be that our judges have a duty to consider such cases whether they want to or not.
Second, that UK courts are not in a position to act as international ones would: in other words, gather and consider evidence. Perhaps – though there is video evidence; there are witness statements. Furthermore, if the co-operation of China’s regime with genocide claims against it is considered indispensable, there will never be any trials at all.
Third, that it is for the Executive and the Legislature, not the Judiciary, to determine the conditions for trade deals: that these are a matter for politics – not the courts. This is a more powerful point. Furthermore, as Ministers point out, if judges were to be empowered to rule on such deals, why set a bar for investigation as high as genocide?
Why not also allow our courts to rule on claims involving war crimes, torture, slavery, imprisonment without trial – and other offences that, while heinous, nonetheless fall short of attempts to elimate a national, ethnic, racial or religious group? And what of positive as well as negative rights?
What about countries that allow the segregation of students based on disability, or discrimination against gay people at work, or suppress information about abortion? Ministers worry that this amendment suggests a further extension of judical power, as dramatically highlighted last year by the Supreme Court’s ruling on prorogation.
When the Trade Bill was considered in the Lords, anti-genocide campaigners made it clear that they aren’t opposed to our courts ruling, if necessary, on those other major human rights abuses: as good and humane people, why would they be? And amendments had indeed been tabled which sought to allow our judges to hear such cases.
Mull the implications for a moment. No country in the world is incapable of being dragged before the bar of a human rights claim – including, by the way, the UK itself: for example, Human Rights Watch says that “the government refused in 2019 to order a fresh public inquiry into alleged UK complicity in rendition and torture”.
If you think that example is what a lawyer would call argumentative, return to the matter at hand: trade deals. Liz Truss has rolled over more than 60 of these (it is hard to keep up). More or less off the top of our heads, we zoom in on three of the trading partners involved: Egypt, Peru and Vietnam.
“Security officers routinely commit serious human rights violations, including torture, disappearances and extra-judicial executions, in near-absolute impunity,” Human Rights Watch says of Egypt. “Under Abdel Fattah al-Sisi’s government…it has been experiencing its worst human rights crisis in many decades”.
Of Peru, it writes that “threats to freedom of expression, violence against women, and abuses by security forces are …major concerns”. “Vietnam’s human rights record remains dire in all areas,” it says. “The Communist Party maintains a monopoly on political power and allows no challenge to its leadership.”
It isn’t hard to see grounds on which a British court might wish to strike down all three of these deals, were it empowered to do so. Would the UK be a hero or a mug to put itself in such a position? A hero, blazing a trail for justice worldwide? Or a mug, handing over jobs to less sentimental competitors at the bang of a judge’s gavel?
The more one thinks about it, the more one sees that anti-genocide campaigners, in search of a vehicle to take them to their destination, have boarded the only one available, suitable or not – the Trade Bill. But empowering our courts to make a determination of genocide is one thing; giving them the right to rule on trade deals in so doing is another.
For once that say is granted in principle, why deny it in practice? If China really is inflicting genocide on the Uighars – and so it seems to be – why not let our courts rule on whether UK firms should be trading with it at all? Do our present exports to China really come with cleaner hands than the future ones that would follow a putative trade deal?
MPs’ assessments of how to vote on China, genocide and the courts will be influenced as much by Parliamentary tactics as by political principle. Would opposing the amendment send a signal of weakness to China? Maybe. But what will happen next if enough MPs make that calculation, back the amendment, and it passes?
A Government concession could be on the cards. In the Lords debates on the Bill, Ministers argued that they agree with action on trade deals over human rights, and that they are already acting anyway – “we seek to ensure that human rights are recognised and protected in all our free trade agreements,” as Lord Grimstone, the Minister, put it.
With the China Research Group on the case – plus the Board of Deputies of British Jews, ever-active when genocide claims are concerned – the scene may be set for Ministers tightening up their human rights’ tests for trade deals.
If so, they will try to balance justice concerns, British business interests and Parliamentary accountability in such a way as to persuade Tory supporters of the amendment to abstain, and those MPs who are preparing to abstain to go through the Government lobby instead.
Looking wider than the context of a trade deal that won’t happen anyway, Dominic Raab says that China’s treatment of the Uighars amounts to torture, and that companies profiting from it should be barred from business in the UK.
Ministers also have the option of discouraging investment in China, cracking down on its subversion, influence-peddling and espionage here – and even imposing sanctions, if that’s a route voters and MPs are willing to pursue. Unlikely? Perhaps. But less problematic than extending judicial power to trade policy.