International Criminal Court [Lords]

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Mr. Day: There was a Division.

Mr. Garnier: Of course there was; I shall allow myself 10 or 12 minutes off for that.

It is encouraging that the hon. Member for Kilmarnock and Loudoun has found my arguments somewhat attractive, but I will not abuse his encouragement by continuing for too long. Unlike other Committee members, whatever Greek I learnt has long since been forgotten, but I am always advised to beware of gifts in the hands of Greeks. If the hon. Gentleman forgives me, I will watch him with care because I know that he is a canny operator and that, if he offers me gifts, I will look at the wrapping carefully.

My point, which I have made perhaps too laboriously, is easy to understand. I cannot tell whether it commends itself to the Committee, but I hope that it does, because I do not think that my arguments are so outrageous as to persuade the Solicitor-General that I want to undermine the statute. I do not want to do that, nor undermine the Bill, because, if I am to be consistent in my desire for an ICC, I must allow Parliament to have a legislative vehicle to achieve ratification.

I will end where I began, by making a brief reference to the discussion in the other place. On Report, Baroness Scotland of Asthal, a fellow bencher of the Middle Temple, said:

    ``The ICC Bill is designed to enable the United Kingdom to ratify the Rome Statute of the International Criminal Court. As a number of noble Lords have said, that statute makes it clear that state parties are expected to comply with requests from the ICC for arrest and surrender.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 373.]

The noble Lady is right, but only to a certain extent. She was literally right, but we in Parliament should not allow ourselves to fetter our political masters. By our modest amendments, we could achieve two good things: first, the ratification of the treaty through the passage of the Bill as amended; and secondly, the right to hold our heads high in the international community as Members of a Parliament that has thought carefully about the manner in which it wishes to ratify the statute of Rome.

5.45 pm

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): I propose to speak briefly to the amendment, in part to avoid the possibility that members of the Committee might think that I am indifferent to its proceedings or that I in any way concur with the arguments that have been put forward by the Opposition in respect of this group of amendments. On the basis of the discussions that we have had already, I am confident that the Minister will deal adequately with the amendments when he replies.

This important group of amendments, if accepted, would constitute an exceedingly damaging attack on the nature of our commitment to the statute of Rome. They aim to change the nature of the Bill by granting greater discretion to the Secretary of State and courts. Notwithstanding the attractive way in which the hon. and learned Member for Harborough (Mr. Garnier) sought to summon up exemplification of the circumstances in which it might be appropriate for Ministers or courts to exercise discretion, it must be recognised that the amendments run entirely counter to the undertakings that the Government, in the exercise of their prerogative power, have entered into on behalf of this country.

There has been criticism of the extent to which the Bill allows Executive discretion. The Law Society expressed concern and Amnesty International stated:

    ``the consequences of a discretionary decision, possibly taken on political grounds, could result in a failure to bring to justice persons suspected of what the ICC Statute calls `the most serious crimes of international concern'.''

There has been some examination in another place of the precedent statutes in New Zealand and Canada, which allow some degree of discretion. However, expanding the role of the Secretary of State and the courts as envisaged by the present group of amendments would lead to a failure on our part to fulfil the obligations of the statute. It would send precisely the wrong signal about the nature of the ICC to other countries that are contemplating ratification.

To take one example, the first of the amendments would give the Secretary of State discretion to decide whether to forward an ICC request for arrest and delivery to the appropriate judicial officer; in other words, it would allow the Minister to block an ICC request from the outset. The terms of the statute applying to the arrest and delivery of an individual, subject to an ICC request, do not leave any scope for the exercise of such discretion. Article 59 of the statute of Rome states:

    ``A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.''

It may be argued that that does allow some latitude to adjust our laws.

Baroness Scotland relied on article 89 when rebutting arguments similar to those advanced by the hon. and learned Member for Harborough. That article states:

    ``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.''

That establishes, and it is the clear meaning of the statute as a whole, that co-operation with the ICC is not intended to be discretionary. If the amendments were accepted, future Governments of the United Kingdom would have the power to harbour suspected offenders against international criminal law as encapsulated in the Rome statute. It would allow us to engage in sham trials—a more real theoretical proposition than many of the fanciful suggestions of the Conservatives. Their amendments would allow the improper refusal to deliver an individual to the ICC.

Mr. Garnier: The right hon. Gentleman was not present this morning, so he has not heard the Minister of State's response to my hon. Friend the Member for Reigate. The admonition that we received from the Minister was that we should have confidence and trust in the yet to be created ICC. It is difficult to trust something that is not yet in existence, but the Minister made a legitimate point.

The right hon. Gentleman is falling into the same trap that we were accused of falling into this morning—of not having trust in a future institution, whether a future Secretary of State, Parliament or judicial system in this country. As my noble Friend, Lord Howell said on Report in another place:

    ``We should maintain our own confidence in our international reputation, but we should also protect our interests and our people. To do that we need some discretion.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 370.]

Does the right hon. Gentleman not have sufficient faith in the ability of this Parliament and our courts to behave properly and respect international obligations? The amendments would introduce only an element of discretion; cannot the right hon. Gentleman allow for the possibility of exercising it in a wholly proper manner that is not inimical to the spirit of the Rome statute?

Mr. Maclennan: I am more interested in complying with the letter of the law when that letter is clear than with its spirit. It seems perfectly clear in this case. We also have more confidence in the plain meaning of international legislation to which we have given assent than in predicting the tergiversations of future Executives, particularly when the issues at stake are highly political and discretion would be subject to political pressures that might prove difficult to resist without the support of the law to which the country has given its firm assent. In other words, discretion given to Ministers could, in the circumstances described by the hon. and learned Gentleman, prove to be an embarrassment rather than an advantage.

These matters should be put beyond debate, because I see no reason to believe that the institution that is in the process of being created will not perform its task responsibly and in accordance with its founding statute. The pressure of international public opinion on it to do so will be enormous and, in my judgment, reliable. The international courts that have been set up in the past by the international community's agreement have shown a robust ability to withstand the politicisation that has been regarded as sufficiently serious to merit importing these derogations. We should be clear that what we are talking about would constitute a derogation from the statute of Rome.

The group of amendments exemplifies the risk of detracting from the valuable work done by the British Government and British negotiators. They risk sending entirely the wrong signals at a time when a number of countries are considering signing up to the statute. If we in Britain, who have been prepared to live by the rule of international law, seek to dilute it by making it subject to domestic political equivocations or Executive discretions, we could start a process of questioning that ultimately threatens the agreement that gave rise to the statute of Rome. It is very much in the interests of the British people and nation to see it implemented as early as possible.

I find it unattractive that the Conservatives constantly presume an opposition between national interests and the interests of implementing the treaty. I perceive no such opposition. To my mind, the treaty's implementation is precisely in the interests of this country, which has, like others, suffered the sort of international crimes that it is part of the statute of Rome's purpose to deter by the very existence of a mechanism for dealing with them.

Mr. Gerald Howarth: I realise that the right hon. Gentleman has been unable to attend all our proceedings, but he knows that we share his belief that action must be taken against those responsible for atrocities. He will also be aware of the concern expressed by the Chief of the Defence Staff, which is one reason why some Conservative Members are anxious to ensure that we explore all possible consequences of the legislation—even those that are unintended. The Committee's job is to challenge the Bill, not simply to let it rush through on a fair wind.

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