UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 114-ii

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

FOREIGN AFFAIRS COMMITTEE

THE ROLE AND FUTURE OF THE COMMONWEALTH

TUESDAY 26 JUNE 2012

SIR MALCOLM RIFKIND

Evidence heard in Public

Questions 210 - 224

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Oral Evidence

Taken before the Foreign Affairs Committee

on Tuesday 26 June 2012

Members present:

Richard Ottaway (Chair)

Mr Bob Ainsworth

Mr John Baron

Sir Menzies Campbell

Ann Clwyd

Mike Gapes

Mark Hendrick

Andrew Rosindell

Mr Frank Roy

Sir John Stanley

Rory Stewart

Examination of Witness

Witness: Rt hon. Sir Malcolm Rifkind QC MP, Member, Eminent Persons Group, gave evidence.

Q210 Chair: I welcome members of the public to this sixth and final evidence session of the Committee’s inquiry into the role and future of the Commonwealth. May I particularly welcome Sir Malcolm Rifkind, who is a member of the Eminent Persons Group? Sir Malcolm, thank you very much for finding the time to come along. As you know, we have taken a lot of evidence on this, but the EPG has been always there, and we thought that this was a golden opportunity, as you are a colleague of ours in the House. Would you like to start by setting out how the EPG works? How would you describe its function?

Sir Malcolm Rifkind: Thank you, Chairman. I am delighted to have this opportunity. I must confess that if you reach a stage where you are thought suitable to be a member of an "eminent persons group", it is the nearest thing to reading your own obituary, and you have mixed reactions to it.

Nevertheless, the background is as follows. The Commonwealth-obviously its last conference was in Perth-at the previous conference concluded that there was sufficient unease about the way it was moving to justify inviting a number of people from various parts of the Commonwealth to look into these matters and to make recommendations which could be considered at the Heads of Government meeting that was due to take place in Perth. A number of us were appointed under the chairmanship of Abdullah Badawi, a former Prime Minister of Malaysia. It was a very strong, good and harmonious committee, and we ended up making a unanimous series of recommendations.

Perhaps briefly I will mention the main concern that existed that led to the creation of the group in the first place. Essentially, the Commonwealth was not facing a crisis, but it no longer had the same public impact and public awareness of its activities and achievements that it had in the past. Perhaps the great golden age for the Commonwealth was in the battles against apartheid in South Africa, when it literally led global public opinion, not always comfortably from the point of view of British Governments, but it nevertheless had a great moral purpose and was seen as being very significant.

The issue is not that the Commonwealth is an organisation that invites controversy, or is unattractive to member states. In fact, it has a queue of countries anxious to join, and the health of any organisation can normally be determined by whether there are more people wanting to join or to leave. But that is only at the level of individual governments. More broadly speaking, public opinion has lost sight of the Commonwealth in many respects, and that is a matter of some anxiety. The threat is not hostility, it is indifference, and that can be very corrosive over time.

When the EPG started looking at these matters, we thought, "Let’s go back to basics and ask what is the prime or added value that the Commonwealth offers throughout the world." The prime value is, very specifically, the fact that the Commonwealth is based not just on common interests, but on common values. It is an organisation of countries that not only have a link with the United Kingdom for historic reasons, but have or aspire to have strong democratic values, respect for the rule of law and matters of that kind. Many organisations use that rhetoric: what has been unusual about the Commonwealth has been that it has actually taken powers to itself to suspend or even expel member states that no longer live up to these aspirations. The United Nations takes the view that it must have universality, regardless of the performance of individual governments, and that is true of most other global organisations. The Commonwealth, if it is not unique, is certainly one of very few international organisations that is willing to remove or suspend membership, and that has happened on a number of occasions. It happened with Zimbabwe, Fiji and several other countries that have had military coups.

So what is the problem? The problem essentially can best be summed up in this way. While the Commonwealth, its Secretary-General and its Ministerial Action Group have been prepared-sometimes quite impressively-to respond to a military coup or the overthrow of a democratic Government, they have been much more silent about serious abuses of human rights or the rule of law, when that has happened in a Commonwealth country. Either the Commonwealth has had nothing to say, although the rest of the world has been speaking about it, or it has had very little to say and certainly very little to do.

Three areas can be referred to, and the first is the role of the Secretary-General of the Commonwealth. In the past, the Secretary-General has rarely felt able to speak out unless he has been given an express mandate to do so. Now that is not the case with the Secretary-General of the United Nations. Ban Ki-moon, or whoever is Secretary-General of the UN, will often speak out on his own authority when he believes it right to do so. Action against member states depends on the views of the Security Council, but not statements by the Secretary-General. In the case of the Commonwealth, Kamalesh Sharma, and to some degree his predecessors, have been reluctant to do so, and the same has applied to the Commonwealth Ministerial Action Group, a group set up specifically to deal with human rights abuses or threats to the rule of law.

The most obvious example of that was Sri Lanka. At the height of the internal disturbances in Sri Lanka-I say disturbances, but that is an understatement when many thousands of people were being killed or displaced-the Commonwealth was one of the few organisations in the world that had very little to say about it. The Secretary-General felt unable to comment because he did not have a mandate to do so, CMAG did not feel it appropriate to do so except in very mild terms, and the Commonwealth seemed irrelevant.

There have been other examples, but that is the most obvious one, and that led to the conclusions of the EPG that we should recommend-and I can go into further detail if the Committee wishes me to do so-first that the Secretary-General be given an express mandate to always use his own discretion and be expected to speak out when there are severe abuses of human rights or threats to the rule of law, even before CMAG or the Heads of Government have considered the matters. Secondly, CMAG itself- the Commonwealth Ministerial Action Group-should be reformed to require it to consider, and if necessary take action, when there are threats to the rule of law and so forth.

Thirdly, the Commonwealth should have a commissioner for the rule of law, human rights and democracy, who would be there essentially to assist the Secretary-General and to assist the Ministerial Action Group, and keep a proper objective study of what is happening in individual countries so that we could see these matters addressed not just when they have reached the stage of crisis, but hopefully at an earlier moment in time. I think I have said quite enough for my opening comment, but that is basically where we are.

Q211 Chair: That is very helpful. Were there any states in particular that you had identified that were hostile to it or against it?

Sir Malcolm Rifkind: Yes. We produced a unanimous set of recommendations, which went far beyond what I have just mentioned. There were many issues on trade and economic policy. I will not comment on those, because for the most part they were not controversial and do not go to the heart of what we were dealing with. When it came to the Commonwealth Heads of Government Conference in Perth, at which I was present-indeed the whole Eminent Persons Group was present and we actually presented to the Foreign Ministers and Heads of Government at Perth-essentially the proposal for the Commonwealth Commissioner was rejected. It was not formally rejected-it was pushed into the long grass, where it still rests.

On the question of CMAG reform, to be fair, CMAG itself had carried out its own study of what might be needed. Its conclusions had been similar to ours and these were largely endorsed. The role of the Secretary-General has broadly been accepted. I do not think that that has been dealt with in a negative way. There was one final major recommendation, which was the suggestion that there should be a Commonwealth charter that would spell out the values of the Commonwealth up to date in a form that has not existed in the past. That, too, is in the long grass at the present time.

You asked about particular countries. Being blunt about it, I would say that you had resistance from a number of countries that might have thought they would get the special attention of a commissioner if there was one. Sri Lanka is the obvious case in point. That had been anticipated. What was most disappointing was that a number of other countries, of which I would mention specifically South Africa and India, were also very negative in their response to these particular recommendations. We always knew there would be some controversy, but they took a strong hostility-that is I think a fair word-to what we were recommending, arguing that it was unnecessary, but I think the real reason was more a difference of view as to how tough the Commonwealth should be prepared to be with regard to matters of that kind in individual member states.

Q212 Andrew Rosindell: Good morning, Sir Malcolm. Can you enlighten us as to the circumstances regarding the non-publication of the report? Was it suppressed, was it a cover-up, or was it, as Lord Howell has suggested to us, purely an administrative mistake?

Sir Malcolm Rifkind: It was certainly a mistake. I am not sure if it was an administrative one. Our report was a report that we had been asked to provide for the Heads of Government. We did not ourselves have the authority at that stage to publish it, but we sent it to the Heads of Government sometime before the conference. We strongly recommended not only the recommendations, but that the whole report should be published at an early date so that there could be a wider debate among Commonwealth organisations. We had taken evidence from many Commonwealth organisations. We had kept them in touch all the way through with the trend of our thoughts, of the direction we were moving, in terms of recommendations, so we wanted to make it as wide a debate as possible, not simply a private debate between ourselves and the Heads of Government. Most of what we were recommending was already in the public domain. What was not in the public domain was the detailed argument as to why we had come to these conclusions and why we attached importance to them.

To our disappointment, some countries blocked the advance publication of our report. That did not include the British Government, I should emphasise. The United Kingdom Government had been excellent in its co-operation, in my view, on these matters. That goes for a number of other Commonwealth Governments as well. When we got to Perth, they still were declining to have it published. When the Heads of Government went into their private retreat on the second day, it had still not been published and we believed that that was grossly improper. There was no indication at that stage that they were going to publish it at all, so we had our own meeting and decided to pre-empt. We said it was our report, and if they were not going to publish it, we would. We called a press conference, and handed the press copies of the report. We said that it was not the private property the Heads of Government, and that it should be available to the Commonwealth as a whole. Within an hour of our doing that, the Heads of Government decided, after all, that it was timely to publish the report-so crisis resolved.

Q213 Andrew Rosindell: You said that the Commonwealth faces a problem of indifference, and that its purpose is now being questioned. How do you see the Commonwealth developing, and how can the feeling of its purpose being questioned be reversed so that it has a positive purpose in the years ahead?

Sir Malcolm Rifkind: Different countries have different reasons for attaching importance to the Commonwealth. One of the most important things I learned from my time studying these matters as a member of the EPG was that for the 30 or 40 countries of the Commonwealth, or perhaps slightly fewer, but for those that are micro-states-the Caribbean countries, Pacific countries and small countries that are members of the Commonwealth-membership is and will remain hugely important to their foreign policy. They are so small that they normally do not have access to Heads of Government of major countries around the world. They might in theory at the United Nations, but in practice it is very difficult. Within the Commonwealth they have equal status, and can mix with the Prime Ministers of India, the United Kingdom, Canada and Australia, and the President of South Africa. That is hugely relevant to them, so they will not lose interest in the Commonwealth because it is so important to them.

But for other countries, which includes major countries-India is the most obvious example and South Africa may also come into this category-there will be a question mark if matters are not properly addressed as to whether the Commonwealth continues to be part of their aspirations and strategy. We feel that that is not a crisis at the moment, or approaching a crisis, but it is a long-term drama, not a short-term one.

Q214 Mr Frank Roy: Sir Malcolm, you said that the non-publication of the report was disappointing and improper. In fact you said at the time that it was a disgrace.

Sir Malcolm Rifkind: The non-publication.

Mr Roy: Yes. Can I take you to the recommendations? Do think they were over-ambitious, and that that is what led to it?

Sir Malcolm Rifkind: That is a fair point. They were certainly ambitious. We had our own internal discussion as to whether it was unrealistic to put forward recommendations, and whether we should contain ourselves to something more modest. We came to a unanimous view, albeit after vigorous internal discussion, that the whole purpose of the EPG, if it had a purpose, was to say what we believed needed to be done. The Heads of Government had to take responsibility for either accepting or not accepting. We have discussed it since, and we are in no way of the view that it was wrong to make the radical recommendations that we thought were necessary. Although they have not been accepted at this stage, they remain on the table.

Q215 Mr Roy: Sorry, you don’t think that was outwith your remit? If anyone is given a certain remit, they could come up with any particular answer, but as soon as they do that and they are well outwith their remit, the work just falls.

Sir Malcolm Rifkind: It was not outwith the remit. There was no suggestion that it was not competent for us to make these recommendations. Our remit was drafted in a sufficiently general way to allow us to recommend whatever we thought appropriate. Indeed, we clarified that with the Secretary-General at the beginning, because we wanted to make it clear. I and my fellow members spent quite a lot of time on this work. We were not prepared to do that over several months unless we felt we had a free mandate to make whatever recommendations we thought appropriate. It was for the Heads of Government to decide whether they could accept them or not.

The point I wanted to stress was that as our full report is now a public document, it remains available, and can be used as a basis for further debate in the years to come. One of the most crucial questions will be the next Commonwealth Heads of Government conference, which ironically is to be chaired by Sri Lanka in Colombo. As we approach that, it could become controversial if the Sri Lankan Government don’t feel able to accommodate some of the legitimate concerns that have been expressed about events in that country.

Q216 Ann Clwyd: Malcolm, there is no reference in the draft chapter about sexual rights, or even a free media. Can you tell us why?

Sir Malcolm Rifkind: The document is not in front of me, so I cannot immediately give you chapter and verse, but we had a very full debate. Michael Kirby, who is one of the most distinguished members of the EPG, an Australian judge, has for many years been a great champion of the need for the Commonwealth in particular to deal with many of the laws that remain in a number of countries that criminalise homosexual relations and have led to some very serious controversy. You will see that, in our recommendations, we do have quite explicit recommendations that in relation to laws that discriminate in various ways, the member Governments should consider, as a matter of some urgency, the repeal of those laws in order to make an important contribution not just to justice, but to the problem of AIDS in many of the countries concerned.

To be frank, we did have to take into account that not only in the Commonwealth but in our own group, there were representatives from countries that, for religious reasons or other reasons, have very strong historical views on these matters and find it very difficult to win public support for modernising laws that criminalise homosexuality. It is a very live issue. We expressed our recommendations, which are in the report, but I do accept that we expressed them in less dramatic terms to try to take into account some of the sensitivities involved. However, we made it clear, not only by having the recommendations but in our oral evidence, that we believed change was necessary in these areas.

Q217 Mark Hendrick: Sir Malcolm, do you envisage the charter being binding on signatory states? You mentioned that there was disquiet about countries such as Sri Lanka, India and South Africa being confronted on issues such as human rights. Do you think the possibility of member states of the Commonwealth signing up to the charter is a good idea and, if so, member states could be thrown out if they breach what they have signed up to?

Sir Malcolm Rifkind: The charter was never intended to be a legally binding set of proposals. The charter, as one would expect from a charter, is a statement of values, a statement of beliefs. It is a template against which certainly CMAG and the Commonwealth generally could measure the performance of Governments as to whether they are really living up to the ideals of the Commonwealth. The Commonwealth is not the kind of organisation that has enforceable conditions or requirements. There is no means of enforcing anything on a member state, but there are ways in which the Commonwealth Heads of Government can take collective action if they believe that a member state is no longer living up to fundamental ideals. The charter was meant to be and remains a proposal. It came originally from the former Malaysian Prime Minister, our chairman of the committee, to present in an up-to-date form what already exists in many Commonwealth declarations that have been made over the years but which could be usefully brought together in a single document.

Q218 Mark Hendrick: So people or countries could sign up, but it is not necessarily enforceable.

Sir Malcolm Rifkind: If the Commonwealth comes one day to accept the need for and the desirability of such a charter, that will be the main document that presents to the world what the Commonwealth stands for. As I say, it is intended to be an expression of commitment to the rule of law, to democratic values and to respect for human rights, across a whole spectrum of activities. Then the performance of an individual member state of the Commonwealth can be more effectively measured against that framework. At the moment, you have to look at half a dozen different declarations made at different times during the history of the Commonwealth and try to bring together what they all are trying to add up to and say. We wanted to make that easier, not just for the Heads of Government, but for the peoples of the Commonwealth.

Q219 Sir John Stanley: Sir Malcolm, I understood you to say in your opening remarks that the Commonwealth charter proposal, which I think is an admirable one, from the Eminent Persons Group had been kicked into the long grass at Perth. When I put this very question to the Secretary-General of the Commonwealth, Mr Kamalesh Sharma, at our meeting last week and I asked him whether he thought it was time for the Harare declaration to be updated, he replied, "That has happened already." He went on to say, "That happened at the Port of Spain CHOGM, when the leaders gave that direction to CMAG, and in Perth recently. Two years later, it was achieved." How can you reconcile your "kicking it into the grass" with what the Secretary-General of the Commonwealth said to us?

Sir Malcolm Rifkind: I think I can. There were three recommendations that we made. I mentioned that one of them was a more explicit mandate to the Secretary-General to speak out and not to feel that he had to be bound by the express agreement of member states on each occasion. That has been broadly accepted. The second was on CMAG itself, which is what I think you were referring to, Sir John. CMAG itself carried out its own review. Its recommendations were broadly similar to what we said about the role of the Commonwealth Ministerial Action Group, which was that it should not simply involve itself when there had been an overthrow of a member Government but even when, under an existing Government, there was severe erosion of the rule of law. That, I think, is now accepted as how it should perform.

What has been kicked into the long grass is two very important recommendations of ours. The first was for a commissioner for the rule of law, and the second was a proposal for a Commonwealth charter. There, as far as I am aware, there has been no meaningful progress.

Chair: I would be grateful if colleagues could help me. Three people have caught my eye-Ming, John and Mike-and we only have five minutes left. Questions should be short, and hopefully answers as well.

Q220 Sir Menzies Campbell: Very quickly, was there much discussion about the issue of capital punishment within the discussions of the EPG? I will add my second question, which is rather different. Canada, we understand, has appointed an ambassador to the Commonwealth. Is that something that you would recommend to the British Government?

Sir Malcolm Rifkind: On the first point, I do not recall there was explicit discussion. I think we recognised that even in democracies, there can be capital punishment. That is not necessarily unacceptable; the United States has it, obviously, as do a number of other countries. On the second point, Senator Hugh Segal, who is a member of the EPG, has been appointed as the Canadian special envoy. It is an interesting idea and an interesting initiative, and he is the ideal person to do that job. I would wait and see, myself, whether that is something that could be copied by the United Kingdom Government. I am not against it, but I would like to see whether it actually makes an important contribution.

Q221 Mr Baron: Sir Malcolm, you have addressed the questions I had in answering colleagues, so I will broaden this out briefly. There is a general feeling that there is tremendous potential with the Commonwealth, but it is not being realised: there is a disconnect between the warm words of the FCO and British Government and what is actually happening on the ground. One looks at the closure of the smaller embassies, particularly in the Pacific. One looks at cuts to our soft power capability, including the BBC. One looks at the difficulty incurred by people wanting to come in from the Commonwealth by way of the visa and permit system. Do you agree that there is an apparent disconnect? We have heard statements from Foreign Office Ministers saying that the Commonwealth will be the cornerstone of our foreign policy going forward, and all that sort of stuff, but it does not seem to be translating into action on the ground. Is that unfair or not?

Sir Malcolm Rifkind: I think it is a bit unfair, if I may say so. The present Government have been more committed to the Commonwealth, not just in rhetoric but in policy, than any Government I can remember, Tory or Labour, for the last 25 or 30 years. David Howell is partly responsible for that; his appointment was specifically as a Minister for the Commonwealth.

The Government have actually reopened many offices, including Commonwealth offices, in various parts of the world. We could not have had greater support from the United Kingdom Government in arguing for the recommendations of the EPG report. It was not just the British Government-there was strong support from Canada and a number of countries, both old and new Commonwealth-but the United Kingdom was one of the most forthright advocates of the radical recommendations in our report, including for a commissioner for the rule of law. I am not aware of any obvious further support the British Government could have given at what is obviously a difficult time for public expenditure.

Q222 Mr Baron: One takes the point about public expenditure, but relatively small sums are involved-we are talking about very small sums at the end of the day, as you will fully appreciate. One is not in any way suggesting that individual Ministers are not doing a great job, because they are, particularly Lord Howell, but do you believe that there could be a tweaking of that finance, from our point of view? Given the vast sums heading in other directions, do you believe a modest increase in resources would have a disproportionate effect in a whole range of areas within the Commonwealth, to the mutual benefit of all involved?

Sir Malcolm Rifkind: The resources available to the Secretariat of the Commonwealth are, as you say, minuscule in comparison to many other international bodies and therefore there could be no argument other than that it would be beneficial if they were increased, but it cannot be done just by one country increasing its contribution. The United Kingdom is by far the largest contributor already to the costs of the Commonwealth. I personally would argue that, yes, there should be more resources made available, but I would not want to see the percentage of the resources of the Commonwealth provided by the United Kingdom go up. So there has to be a collective agreement for other countries also to increase their contributions. If that is deliverable, then it would be strongly welcomed.

Q223 Mike Gapes: You have referred several times to Sri Lanka and the reluctance or reticence of the Commonwealth to speak out on it, and Sri Lanka was one of the prominent opponents of most of the proposals that you were putting forward. Is it sensible that the next CHOGM is in Sri Lanka, and isn’t it time for the British Government to make some stronger statements on this, perhaps even going as far as the Canadian Prime Minister, Stephen Harper, who said that he would not attend?

Sir Malcolm Rifkind: If I wanted to get to Colombo, I would not start from here. But that is where we are at the moment. Given the decision that has been taken, there should be maximum pressure on the Sri Lankan Government to respond to the legitimate concerns about what has been happening in Sri Lanka, and that should continue right up to and including the next Commonwealth conference. We can perhaps best judge much nearer the time whether it is acceptable for the next conference to be in Sri Lanka, but at this moment I would say that is the way we should address it.

Q224 Mike Gapes: But we should not rule out possible non-attendance by prominent figures in our Government?

Sir Malcolm Rifkind: It depends obviously on what happens. There are two questions. There is the extent to which the Sri Lankan Government can try and respond more sensitively to concern about what has happened in the past in Sri Lanka, and there is the equally important question of whether there is any ongoing cause for concern that would be likely to exacerbate feelings even more over the months, and two or three years, to come.

Chair: Sir Malcolm, thank you very much indeed. That is very helpful, not just your talk about the group, but your broader perspective on the Commonwealth, and it is much appreciated.

Prepared 29th June 2012