Our courts must not be allowed to interfere with trade policy
New provisions in the Trade Bill run the risk of putting a serious spanner in the delicately balanced works of international trade
In the old days, a father would call in his son on his twenty-first birthday, formally hand him his share certificates and tell him that, from then on, he was responsible for taking decisions about his own future. In much the same way, the UK is celebrating 2021 by gaining (or more accurately in this case regaining) its ability to decide for itself on a whole raft of matters. These include international trade; from now on the trade arrangements we make, and the countries we sign deals with, are matters not for EU apparatchiks but for us, decided by ministers under the supervision of parliament.
Or are they? A cross-party amendment inserted into the Trade Bill in the House of Lords last year (the sponsors being Lords Alton and Forsyth, and Lady Kennedy) and due for debate before the House of Commons early this month introduces a major qualification. Under it, the High Court would gain the power to order revoked any bilateral trade agreement entered into by the UK if it determined that the other party to it (or, in the case of a deal with a trade bloc, any member of that bloc) had been guilty of genocide within the meaning of the 1951 UN Convention on the subject. Application for such an order could be made by any group claiming to have been victimised, or by anyone else on behalf of such a group.
The background to all this is, of course, China. There, the evidence is becoming increasingly inescapable that in Xinjiang Province Beijing has been, and continues to be, guilty of taking measures against the Uighur minority that are aimed at causing serious bodily or mental harm to members of that group and at preventing births within it, both of which amount to genocide. The aim of the Lords amendment, not explicit but clear in the circumstances, is to introduce a legal block to a trade deal with China by making it clear that any such agreement could be undone by court order.
The proposal has reportedly caused a major argument in government. The indications are that Trade Secretary Liz Truss on one side is happy to support it, whereas on the other the Foreign Office is strongly opposed.
We should think twice before hitching ourselves to a bullying and highly dictatorial regime
At a superficial level, Liz Truss’s position looks unassailable. The FO, as ever, is mostly concerned with doing anything it can to avoid upsetting the Chinese. The Trade Secretary, by contrast, takes a longer and more thoughtful view. True, the UK is at present strategically dependent on China for an uncomfortable number of commodities, and a deal would undoubtedly ease many short-term problems. Nevertheless, there would be serious complications attending any such arrangement. Not only is there the immediate and very moral Uighur difficulty: we should in any case think twice before hitching ourselves to a bullying and highly dictatorial regime, and perhaps even rethink our previous over-reliance on untrammelled globalism in our supply chains. Put bluntly, an agreement with the Chinese at this stage is potentially highly problematical and should not be our priority.
Nevertheless, on the specific issue of this amendment and whether it should be allowed through, there can be little doubt that the FO is right. Albeit absolutely well-meaning, the proposals in it need to be resisted by the Commons. Allowing a court veto on trade agreements is a terrible idea, for a number of reasons.
First of all, while aimed at the rather special case of China, the proposals contained in the amendment have the potential to go a good deal further. In particular they will provide pressure groups with substantial scope for mischief (remember that application can be made not only by members of a victimised group, but by any organisation representing such a group).
There is a long list of more or less controversial countries and trading blocs we have potential trade deals with; they include Israel, Turkey and the SACUM bloc in Southern Africa. If these proposals are accepted, any campaigning body alleging (say) state-sponsored racial violence in South Africa, Israeli incursions on Palestinian interests or Turkish repression of the Kurds could potentially force the government’s hand and put a serious spanner in the delicately balanced works of international trade.
Secondly, the courts are almost comically unsuited to making decisions of this sort. It is not clear from the amendment whether a judge who found past genocide by a deal partner proved would have to order the agreement voided, or whether he would have some kind of discretion in the matter (the wording is that “agreements 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 represents a state which has committed genocide”, which could be interpreted either way). But this is not important. In either case the result would be unsatisfactory.
Decisions on matters of trade policy belong not with the courts but with electors through the ballot-box
If the court had no discretion it would apparently have to cause an agreement to be terminated even if, for example, an event was isolated and there was a credible statement by the other party that it would never happen again; and the same would apparently apply if the proved allegation affected only one of a number of countries in a large trade bloc. Either result would be unacceptable. If the judge were given a discretion, by contrast, on what criteria would it be exercised? It is hard to think of a decision more politically nuanced and less suited to forensic determination than whether the relative weight to be given to geopolitics, national misbehaviour and the interests of UK exporters than this one.
Thirdly, it is worth remembering that we have been here before. Eighteen months ago, the courts were asked by the activist group Campaign Against the Arms Trade to intervene, not in a trade agreement, but in the related matter of the government’s decision to grant export licences for arms sales to by private UK companies to Saudi Arabia. They upheld the claim, preventing the grant of any licences for roughly a year until their availability was renewed on terms that were (the UK government hoped) legally unassailable.
Now, this decision was no doubt correct in terms of current administrative law; it is nevertheless pernicious. Its effect has been to inappropriately judicialize a matter of enormous political controversy: something calling for a nuanced balance of social, national and political interests entirely inappropriate for a court, and absolutely suited to determination by ministers responsible to an electorate. It shows clearly that, if anything, we need drastically to cut back the ability of courts to intervene in such matters (a point that might profitably be noted by the government’s panel of experts currently tasked with reviewing the administrative law process).
Yet the effect of the new provisions in the Trade Bill is to do precisely the opposite, and increase the difficulties stemming from over-judicialization. Overwhelmingly decisions on matters of trade policy and politics belong not with the courts but with electors through the ballot-box. In short, by all means let the UK decline to enter into a trade agreement with the Chinese government until it mends its ways: but the person to take this decision is a minister of the Crown, and no-one else.
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