International Criminal Court [Lords]

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Mr. Garnier: Before we suspended our proceedings, I was seeking to demonstrate that the Rome statute, which we cannot amend, is not so rigid in its requirements for the court. As I said, it gives the engines of the court considerable discretion on what it may or may not do, even under the provisions dealing with the obligation to cooperate. Article 89.1 says:

    ``States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

The group of articles, under the heading, ``Part 9. International Cooperation and Judicial Assistance'' was not as unforgiving as perhaps the Attorney-General, and those who supported him in resisting my noble Friend Lord Howell of Guildford's amendments on Report and in Committee in another place, would suggest.

Therefore, armed with that assistance, let us turn to the clauses of the Bill that I seek to amend. Amendment No. 14 would replace ``shall'' with ``may'' in clause 2(2). Clearly, that proposal is not illegitimate and does not seek to amend the treaty. Nor does it undermine the laudable purpose of the treaty, which is to ensure that international war criminals should be brought to justice.

Under the heading, ``Request for arrest and surrender'' clause 2 (2) states:

    ``If it appears to the Secretary of State that the request should be considered by an appropriate judicial officer in Scotland, he shall transmit the request and the documents accompanying it to the Scottish Ministers who shall transmit them to an appropriate judicial officer.''

It is unnecessary to catalogue the difference circumstances in which it would not necessarily be appropriate for the Secretary of State to do that. My hon. Friends the Members for Reigate and for Aldershot (Mr. Howarth) referred to that this morning, so I shall not repeat what they said. If the amendment were accepted, clause 2(2) would read

    ``If it appears to the Secretary of State that the request should be considered by an appropriate judicial officer in Scotland, he''--

may—

    ``transmit the request and the documents accompanying it to the Scottish Ministers who shall transmit them to an appropriate judicial officer.''

Subsection (3) would state:

    ``If the request is accompanied by a warrant of arrest and the appropriate judicial officer is satisfied that the warrant appears to have been issued by the ICC, he''--

may--

    ``endorse the warrant for execution in the United Kingdom.''

To return to the point that I was making, perhaps inelegantly, a moment ago, the Attorney-General and the Solicitor-General have the power to do any number of things in relation to the initiation of prosecutions, but do not always do them—for good reasons. The Secretary of State may have a very good reason for thinking that it may not be the right thing to do in the circumstances of a particular case. Our domestic courts may already have decided on the matter or there may be some perfectly proper political reason for not wanting to initiate the process—where, for example, the court has decided, without imputing motives to it, to arraign the Prime Minister or the Chief of the Defence Staff of the day for perceived misconduct. The Secretary of State may, for perfectly good reasons of national sovereignty and national interest, decide that it is not appropriate for our Prime Minister or Chief of the Defence Staff to be put under arrest and brought before the competent court or, having suffered those two indignities, taken to The Hague to await trial. I acknowledge that that may be a highly unlikely set of circumstances.

5.30 pm

As my hon. Friend the Member for Reigate pointed out this morning, we are passing legislation that will not be on the statute book until the election. It will be there, if not for all time, at least for as long as we transient beasts, Members of Parliament, are concerned. It will be not far short of permanence. We should therefore be careful about giving away to extraterritorial bodies, no matter how willingly we have signed up to the treaty, the power to remove from our own elected officials—that is, members of our Government—proper and properly exercisable discretion. I do not suggest that the Secretary of State should be allowed to act whimsically or to refuse simply out of pique to accede to a request from the court for the arrest or movement of papers as envisaged under clauses 2 and 3. As the protectors of our constituents' interests and the guardians of the rights of our people we should not, without extreme caution, wantonly or lightly pass to extraterritorial bodies for all time a power that we should expect to be properly and lawfully exercised by our own Secretaries of State.

Mr. Gerald Howarth (Aldershot): I do not invite my hon. and learned Friend to go too far down the track of the Pinochet business, but the case is instructive in support of his argument in the sense that, although the United Kingdom was bound by an extradition treaty, the Government were given an element of latitude —a flexibility that my hon. and learned Friend is calling for in the Bill—which enabled the Home Secretary, having considered all the relevant matters, to make what was essentially a political judgment in what he thought were our best interests. Had he been bound in the way that my hon. and learned Friend fears that the legislation might bind a future Government, his hands would have been tied, and that may have done Britain great damage.

Mr. Garnier: My hon. Friend may have unavoidably been out of the Room when I did so, but I broadly made that point before the Division. He is right. The Home Secretary's was not a political, but a quasi-judicial, decision, and his political colleagues did not interfere. Had the Prime Minister rung him and told him to act in the political interest of the Labour party, the Home Secretary would have been advised by his permanent secretary to tell the Prime Minister to take a bike ride. To do so would have been to act perfectly within his constitutional rights, and the Prime Minister would have behaved illegitimately if he had sought to influence the Home Secretary's decision politically.

The Solicitor-General, as a Law Officer, may sometimes have to take decisions that are embarrassing to his Government and his political party. He must take them none the less, because it is his duty as an independent Law Officer—outside politics—to do so. My hon. Friend the Member for Aldershot and I recall the Solicitor-General's predecessor, now Lord Mayhew, and the leaked memorandum from Downing street during the Westland affair. As Solicitor-General, our noble Friend threatened the then Prime Minister, now Baroness Thatcher, with a police investigation. That is precisely what a Law Officer should do, and I see no braver successor to Lord Mayhew than the current Solicitor-General. We feel the courage oozing out of his frame as we see him sitting opposite us. I have no doubt that he would, if our amendments were accepted, advise the Secretary of State to withstand political pressure in the exercise of his discretion.

I am asking for the Secretary of State to have discretion only in the circumstances described by our amendments to clauses 2 and 3. The amendments do not require the Secretary of State to misbehave or to fail to comply with the requests of the court or the Security Council, whichever is the requesting body at the time. We Members of Parliament should remember that our first duty is to protect the interests of the British constitution. It is sometimes in our national interest to share or pool our sovereignty: that is what international treaties are all about. NATO and the treaty of Rome, for example, require us to share sovereignty to some degree. The Rome statute does the same: we give jurisdiction to a body above our own jurisdiction, which applies to our own nationals, residents in our jurisdiction and, perhaps, also in extra-territorial circumstances.

Mr. Browne: Having intervened on the hon. and learned Gentleman several times, I must say that the more I listen to him, the more I realise that there is something in his argument. To help me to better understand that argument and the effect of the amendments, would he expand on the circumstances in which he believes it would be appropriate for the Secretary of State to exercise his discretion? That is what troubles me. If we ratify the statute, we are expected to comply with requests from the court, and it is difficult to envisage circumstances in which we would not want to comply with warrants had been properly issued—either pre-trial or on conviction.

Mr. Garnier: The hon. Gentleman may not have been present when I suggested the examples of a Prime Minister or Chief of Defence Staff. In my preamble, I stressed that I imputed no motive to the court when describing a case in which it made a request to the Secretary of State regarding the arrest of a Prime Minister or Chief of the Defence Staff. The prosecutor may well have, in his or her view, perfectly good reasons for wanting to bring a British Prime Minister or Chief of the Defence Staff before the court, but our Secretary of State might think it inappropriate in terms of our national interest to release to the jurisdiction of the court our political or military chief. Those are two stark examples; others might occur to the hon. Gentleman.

Mr. Browne: The scheme of the Bill is not that the Secretary of State delivers anyone to the ICC. The clauses relate only to the arrest of people before a procedure in our courts. The delivery orders are not granted by the Secretary of State, but by the courts; the Secretary of State only facilitates the arrest.

Mr. Garnier: The hon. Gentleman is entirely right. I have been speaking since about 4.45 pm and I was hoping to curtail my remarks by speaking in shorthand. I should not have done so and apologise. I had assumed that what was set out in clauses 2 and 3—the procedure—was given as mutually understood. When I said that the Secretary of State could do such and such, I was implying that he or she would follow the procedure in doing so. I am grateful to the hon. Gentleman for his mild encouragement for my arguments. The fact that I have been talking since about 4.45 pm—

 
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