International Criminal Court Bill [Lords]

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Mr. Maclennan: Yes, it is perfectly possible. I am familiar my noble Friend's words and I have discussed those matters with him. There may be a slight difference of emphasis, but it would not be practical to give similar powers to all the signatory states of a treaty such as the statute of Rome to allow their legislature to bring about the piecemeal disruption of a process agreed by a large number of states.

However, when the Government, who determine the response to any amendment proposed to the documents following the establishment of the ICC, are formulating that response, it is reasonable that Parliament should be informed and have the opportunity to debate, consider and give its opinion. I do not accept that Parliament should have a right to override: that would take us closer to giving this House the power of the Senate of the United States, to block by refusal of advice and consent an international engagement into which the Executive are willing to enter. My position is to some extent a halfway house. I think that the hon. Member for Reigate is recommending something that is closer to the power of the Senate of the United States.

Mr. Blunt: We do not have a system of separated powers as in the United States. The Executive here is present in Parliament; if they could not command a majority in Parliament for an amendment to the ICC, that would probably be a matter of confidence, triggering an election. I do not, therefore, accept the right hon. Gentleman's suggestion that we are setting up a body analogous to the United States Senate, as the American constitution lays down the separation of powers.

Mr. Maclennan: If we were to accept new clause 8 it would in effect give the Houses of Parliament the opportunity to defeat the wishes of the Executive. I do not think that that is desirable. Whether it would be a matter of confidence would depend on the attitude of the Government. A single defeat of the Government does not necessarily mean that they have lost the confidence of Parliament.

I have made my position clear and do not want to labour the point. The hon. Gentleman has triggered a useful debate and I hope that other Committees that are examining scrutiny of the Executive will return to the matter, especially in the area of treaties. The upper House considered the matter, but felt that it was not well placed to take up such scrutiny because of limited resources. I do not think that we should resile from the need to take the matter further as soon as possible.

Mr. Gerald Howarth: The right hon. Gentleman has acknowledged that the debate is important. I have been interested to follow the arguments of the Liberal Democrat party, which I thought was in favour of greater openness and accountability. Undoubtedly, new clause 8, to which my name is also attached, goes some way to providing greater accountability, if not more scrutiny.

The Committee cannot change the rules on how the House of Commons handles treaties. However, it is legitimate for us to consider the new clause within the structure of debates on the Bill and the statute of Rome. The fact that we are in Committee today enacting legislation means that, although the statute itself is not amendable, Parliament can, if it so wishes, say that it does not believe that Her Majesty's Government should have signed up to the statute and that it expresses its dissent to their actions by rejecting the Bill.

The prerogative of treaty-making is not inviolate. If we had advanced a comprehensive case against the Bill and Government Members had found our arguments overwhelming, they might have said, ``This is something up with which we cannot put. Of course, it appears that there is no sign of that happening today.

Mr. Gapes: Is the hon. Gentleman arguing that we should vote to reject the Bill?

11 am

Mr. Howarth: Perhaps the hon. Gentleman would be kind enough to listen. I said that the format of the Bill allows Parliament to reject the treaty. Parliament cannot amend the treaty, but it can say to the Government, ``We do not like the Bill, and we feel that it should be rejected''. In that regard, an interesting comparison can be made with much EU legislation, which, as we know, is enacted without Parliament's having any say. By and large, EU legislation is unamendable and even unrejectable.

I simply want strongly to reinforce the arguments of my hon. Friend the Member for Reigate. This modest new clause would allow Parliament to reject an amendment to the treaty that was subsequently approved. In response to a report from the Select Committee on Procedure, entitled ``Parliamentary Scrutiny of Treaties'', the Government acknowledged that further development might be useful, and they accepted some of the Committee's recommendations. As Library research paper 01/39 points out, the Government said:

    ``The Government is happy to undertake normally to provide the opportunity for the debate of any treaty involving major political, military or diplomatic issues''—

with the following particular caveat—

    ``if the relevant select committee and the Liaison Committee so request.''

That is an important acceptance by the Government of the principle that such major issues should properly be considered by Parliament.

There is no doubt that the Minister has referred to a megacourt for megacrimes from the outset. The ICC is a substantial supranational body, and the Government have sought constantly to reassure us that if it develops over the years in the way that they envisage, our concerns should prove groundless. However, substantial and fundamental amendments might be made to the treaty in the teeth of opposition from a future Government, so it is right and proper for all who believe that far too much power has transferred from this elected Parliament to the Executive to argue that accepting the new clause would be in the interests of our country, and of the armed forces that are uppermost in my mind.

The Solicitor-General: I have two main points to make. First, as we have said on previous occasions, any amendments to the ICC statute would not automatically have effect in our law without legislation. If key changes were made to the statute in relation to, say, new crimes or different arrest and transfer procedures, the Executive would have to seek parliamentary approval. A fundamental rule in our law states that, if treaties are to have effect in domestic law, there must be legislation.

The debate has proceeded on the assumption that any amendment would not require legislation, but that is not right. If there were to be major changes, we would have to return with a new Bill. The standard practice of all Governments is never to undertake legal obligations under a treaty that require implementation in domestic law without first ensuring that the necessary legislation is in place. We would therefore have to legislate again before we notified the UN of our formal acceptance of future amendments to the statute.

The hon. Member for Reigate mentioned the seven-eighths provision, a subject to which I am sure that we will return. We think that that is a high proportion of states parties. For new crimes, an additional protection exists in article 121.5. We to expect to play a prominent part in the negotiating process and to have a strong influence over amendments to the statute.

Mr. Blunt: The Solicitor-General is correct about the elements of crimes that must be included in domestic legislation. I accept that argument. He is talking about amendments, which require a seven-eighths majority, that concern the nature of crimes. One of the greatest concerns about the operation of the court is how the institution will work. Amendments to the court of an institutional nature will require no changes in domestic legislation and, as stated in article 122.2, require only

    ``a two-thirds majority of States Parties. Such amendments shall enter into force for all states parties sixth months after their adoption by the Assembly or, as the case may be, by the Conference.''

On that matter, Parliament must properly be consulted.

The Solicitor-General: That leads to the second major point about the approach to treaties. The right hon. Member for Caithness, Sutherland and Easter Ross was correct when he said that the hon. Member for Reigate was trying to overturn our constitutional provisions—I suspect by a little breeze, rather than by a side wind. The point is that the Executive have a long-standing role in negotiating treaties, which includes negotiating amendments to treaties. Inasmuch as amendments to treaties do not require legislation, procedures exist, such as the Ponsonby rule, which have been the subject of discussion. The hon. Member for Aldershot (Mr. Howarth) also referred to the Government's response to the report by the Procedure Committee. I reiterate that we remain open to considering ways of contributing to the efficient and effective scrutiny of treaties by Parliament. That is an argument for another day, rather than one in relation to the Bill.

To summarise, major changes concerning new crimes and the warrant-surrender procedure would require us to return to those matters. There is still a possibility for Parliament to examine other changes and express its views. Perhaps parliamentary procedure rules need to be changed; that is matter to which we are alive and are happy to consider, but in a different context.

Mr. Blunt: I listened to the Solicitor-General's arguments and have not found them particularly strong. A gale of an argument has blown a hole in his position on institutional changes to the court. Such changes can now be approved by a two-thirds majority of states parties. That could amount to a fraction of the population represented by those states, compared to the population of countries outvoted, and that is a matter of principle that should not be avoided in identifying particular institutions of the court. The Government would have such changes forced on them under the statute, and there would be no provision to return to Parliament to obtain parliamentary approval of them. The Solicitor-General's only argument is that that is an argument for another day and that we are not in an appropriate forum in which to make such a case. That is not good enough. What is wrong with deciding the issue here? The Bill has immense importance for the future of international jurisprudence of the most serious crimes.

The right hon. Member for Caithness, Sutherland and Easter Ross said on Second Reading that the Bill is among the most important that he has dealt with in his 35 years in the House of Commons. There is nothing wrong with it being the vehicle by which Parliament gets off its knees from before the Executive and says, ``No, we will insist on bringing back the Executive to seek parliamentary approval for changes to this immensely important statute.'' I listened to the arguments of the right hon. Gentleman and I intervened on him a couple of times. He accepted the principle of what I am seeking to achieve, and I am grateful for that support—although it became clear that I would receive from him every assistance short of practical help.

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