The government is seeking to fend off a backbench revolt over China by giving the foreign affairs select committee new powers to investigate whether a country is so clearly breaching human rights that the UK should not agree to a free trade deal with it.
The proposal is being canvassed as an alternative to a measure that would give the high court the power to make a preliminary determination that a country with which the UK is negotiating a trade deal is committing genocide. Such a determination would require the government to consider pulling out of any free trade agreement.
Backbenchers want to give the courts the power to assess cases of alleged genocide, such as the abuses being committed by China against the Uighur Muslims in Xinjiang. The MPs see the proposal as a way of breaking a wider impasse over the inability of the international courts to intervene in such issues.
Ministers narrowly saw off a backbench revolt by MPs on the issue a fortnight ago, but peers are expected to reinstate a revised version of the measure when the trade bill returns to the Lords on Tuesday. On 19 January, MPs voted by 319 to 308 to reject the genocide amendment, cutting into Johnson’s working majority of 87 and reflecting the strength of feeling in the Conservative party about the UK’s ties to China.
Three government ministers are due to stage an all-party meeting with peers on Monday to try to persuade them not to give any role to the UK courts in genocide determination. A rival meeting has been organised for earlier on Monday by cross-party supporters of the proposal.
The foreign affairs select committee is due to meet on Tuesday to discuss the proposed new powers, but it is understood some members are opposed to it.
Under the government proposal, not yet seen in legislative form, the committee would be empowered to examine the human rights breaches of any country with which the UK is proposing to negotiate a trade agreement. It would be empowered to make recommendations, and if the government did not accept the recommendation, force a vote on the floor of the Commons.
Chris Bryant, a Labour MP on the committee, described the plan as nonsense. “It’s an attempt to buy off a rebellion. The committee already has the power to produce a report or make recommendations, but even when the committee unanimously declared the treatment of the Yazidi as genocide, the government simply ignored it.
“The main point is that it should be a court, not a bunch of politicians that weigh the evidence and adjudicate on genocide. With China exercising an international veto, we need a domestic court to adjudicate. If we allow ourselves to be fobbed off with this, genocide will continue with impunity.”
It is not clear if the vote of MPs on a recommendation from the committee would be legally or morally binding on the executive.
Privately, the government has been arguing that the judiciary, including the lord chief justice, Lord Burnett, does not want the judiciary to be handed the responsibility of genocide determination.
Tory MPs were so incensed by the whips lobbying against the plan and citing the views of judges that Sir Robert Buckland, the lord chancellor and justice secretary, was asked to give an undertaking that it was a breach of separation of powers for the whips to cite the views of the judiciary in a political controversy.
Supporters of the genocide amendment claim heavyweight legal support, including from the human rights barrister Helena Kennedy, and Sir Geoffrey Nice QC.