|International Criminal Court [Lords]
Mr. Desmond Browne (Kilmarnock and Loudoun): In a sense, the hon. and learned Gentleman has put his finger on the problem with the amendment. The purpose of the Bill is to ratify the statute of Rome. Is it his argument that we should not ratify it? If we seek to ratify it by legislation that preserves our right not to comply with itit includes a mandatory obligation in the provisions under article 59we cannot ratify it.
Mr. Garnier: That is not how I would put the problem that I am facing. The statute of Rome is an international treaty agreed by a collection of Governments, and we are one of many signatories. The Committee is considering whether the treaty should be ratified. Under the Ponsonby rules and various conventions and debating procedures, the Governmentnot only this Governmenthave condescended to allow Parliament to become involved in discussions about treaty making. However, I understand that the Government can ratify the treaty without Parliament's permission; we are not necessary to the ratification process. The Minister of State or the Solicitor-General might correct me if I am wrong about that. In due course, it might become established in convention that no international treaty can be ratified without parliamentary intervention.
We are introducing into domestic law parts of or all of the treaty, so that our own courts can try cases of genocide, for example, or war crimes; I use the expression loosely. However, it is a slightly confusing exercise. The discussions between the hon. Member for Kilmarnock and Loudoun (Mr. Browne) and my hon. Friend the Member for Reigate this morning were fascinating but, in a sense, unworldly. Each understood the position of the other, but whatever the end result of their conversations or our deliberations, we would have no purchase on the statute of Rome.
I want to see an international criminal court set up. There might be arguments between individual members of the Committeeand, indeed, between individual members of the Opposition and of the Governmentas to the least imperfect way of introducing an international criminal court. I have my own personal views, having visited the international criminal tribunal for the former Yugoslavia in The Hague last year. It was an interesting experience. If the hon. Member for Kilmarnock and Loudoun has not been there, I suggest that he goes.
Mr. Browne: I have not visited the tribunal in The Hague, but I have visited the tribunal for Rwanda, so I have had a similar experience. There are problems with such courts, but I hope that the creation of an international criminal court, which will be free of some of the political influences that clearly affect them, will solve some of the problems.
Mr. Garnier: I am sure that the hon. Gentleman is right. We must do the best that we can with the procedures with which we are faced. I do not know whether that is an excuse or an explanation for the sense of frustration that I feel. It may well be that over time we will change the manner in which we make treaties. Ironically, I believe that his right hon. Friend the Member for Chesterfield (Mr. Benn) agrees with me. In the course of the next few parliamentary generations, we must examine how we make treaties. The right hon. Gentleman thinks that it is constitutionally wrong for the Executive, particularly the sovereigneffectively the Prime Ministerto make treaties without Parliament's permission, although we have not reached that stage yet. The right hon. Gentleman is about to leave Parliament to engage, so he says, in political life on a more full-time basis. We shall no doubt read what he writes and listen to what he says over the years with interest.
I hope that I shall not be accused of being patronising, but the hon. Member for Kilmarnock and Loudoun made an interesting and helpful series of interventions during our deliberations in Committee. I am glad that he did so, because it helps the way in which we fashion our legislation.
Having expressed my frustration, not for the first time, at the proceedings with which we have had to cope, I turn to the articles of the Rome statute that would be especially affected by our amendments to clauses 2 and 3. I accept that there is a general obligation to co-operate at article 86, which says:
I said at the outset that discretion is given to the court by the statute, but it is not given to the Secretary of State under the Bill. Article 87.4 states:
Article 87.5(a) states:
Mr. Browne: Are not those discretionary paragraphs limited to requests for co-operation under article 87, which must be distinguished from requests for provisional arrest or for arrest and surrender under articles 59 and 89 respectively? There are no similar provisions in relation to discretion. The amendment would affect the operation of the provisions in relation to articles 59 and 89. It does not help the hon. and learned Gentleman's argument to say that the court will exercise discretion in relation to other aspects of the treaty. The court clearly needs to exercise a degree of discretion because that empowers it to make requests to parties that are not parties to the treaty.
Mr. Garnier: I am sorry to be tedious, but my argument is not a snapshot. It has to be looked at in a linear way. The hon. Gentleman is quite right. I will turn to article 89, which deals with the surrender of persons. The mere fact that the discretion that the court is permitted to have under the treaty is in each part of the statute directed to a particular collection of functions, does not detract from my argument that, if the court is provided with discretion under the statute in various activities, it may or may not do certain things. Indeed, article 89.4 states:
Article 89.1 states:
It is not unknown, not least for a Law Officer, for example, who has the statutory duty to grant leave for the bringing of certain prosecutions, to exercise his discretion. It is not unknown for the Crown Prosecution Service, under our present system, to exercise its discretion about whether to bring a prosecution, even though in any given case the evidence may be sufficiently clear to suggest that were the matter proceeded with, a conviction could be achieved. It may not be in the public interest, despite the fact that there is sufficient evidence to convict, to bring a particular prosecution.
It is healthy that the CPS, as the body that mounts prosecution on evidence produced by the police, and the Attorney-General and the Solicitor-General in their roles as the political heads of the prosecution service, can exercise their discretion fearlessly and independently when making decisions about whether to prosecute in cases that come within their remit. In our legal system the Secretary of State has a discretion about whether to initiate a prosecution or--and I am thinking of the Pinochet case simply because it is an easy one to remember--whether to permit further stages of an extradition case to go ahead. It was open to the Secretary of State for the Home Department to prohibit the further proceedings in the extradition case brought by the Spanish magistrates in the English courts.
Sitting suspended for a Division in the House.
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