Peers have inflicted a crushing defeat on the government over its approach to China’s human rights record by voting for a second time to amend a trade bill and give British courts a role in determining whether a country is committing genocide.
Any such judicial determination would require the UK to review any bilateral trade agreement with Beijing, because of its abuses against Uighur Muslims in Xinjiang, and other regimes accused of genocide.
Peers on a cross-party basis voted on Tuesday by 359 to 188 – a majority of 171 – to insist the UK courts should be handed this new role, and the issue will now go back to the Commons next week. Ministers oppose the measure.
The government suffered a major backbench rebellion in the Commons on the proposal last month when its majority was cut from 80 to 11, and it will now face another knife-edge vote.
Peers had first voted in December by a majority of 126 to give the courts a role in determining genocide, so the tide is flowing against the government in the Lords.
The votes come as a growing phalanx of Tory MPs demand the UK takes a tougher stand over China’s suppression in Hong Kong and its treatment of Uighurs. The issue also raises wider moral questions about how ministers will be held to account if they seek to sign post-Brexit free trade agreements that ignore human rights.
Lord Alton, an independent peer, urged the Lords to give the high court a role, saying his narrow and specific measure was “neither a futile gesture or virtue signalling”. He cited a number of senior lawyers who have said the UK courts are competent to determine whether a genocide is under way under the Genocide Convention.
Alton added that the international criminal courts are not able to make such determinations about China’s treatment of the Uighurs due to the Chinese ability to veto any such reference.
He has adjusted his genocide amendment to meet objections that the original proposal required the government to act on any high court determination.
Ministers, on the back foot, have been trying to find a concession that keeps the issue of genocide away from the national courts, arguing the judges do not want such a role, it could weaken the separation of powers and its rulings could cause diplomatic difficulties. The British courts can already find individuals guilty of genocide.
In a last-minute letter to peers sent on Tuesday, Lord Grimstone, the trade minister, suggested the foreign affairs select committee could pronounce whether a country is committing genocide, and could prompt a Commons debate.
The foreign secretary, Dominic Raab, discussed this proposal with the chair of the foreign affairs select committee, Tom Tugendhat, on Monday, and the proposal faced criticism from the Committee on Tuesday, partly due to the fact its powers to subpoena witnesses are limited and the concession was not presented in the form of a formal amendment to the trade bill.
Lord Blencathra, a former Conservative cabinet minister, said the idea that a select committee, meeting for a couple of hours a week, could be better thanthe high court taking evidence day after day was “for the birds”. He added “whatever the select committee decided, the government can ignore it”.
He said the Foreign Office’s thinking on genocide was trapped in the past decade and urged the prime minister to take a personal look and realise that the department’s old policy on genocide was no longer sustainable.
Lady Kennedy, the Labour peer and human rights barrister, said the world was watching whether the UK “could change the ecology of law by making genocide have serious meaning in our contemporary world”.