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Lord Howell of Guildford: My Lords, I am grateful to the noble and learned Lord and to all noble Lords for their comments. I am pleased by the reception

20 Mar 2001 : Column 1304

which the amendment has been given by your Lordships but I am a little less pleased by the Minister's comments.

Perhaps I may first put aside the amendments to Clause 50. I assume from what the Minister said that there will be Orders in Council and that they will be handled by affirmative resolution. Unless I am checked on that matter, I am to some extent satisfied. I fully accept that those reservations lie outside the Rome Statute, that Parliament will be fully involved and that the affirmative resolution procedure will apply.

Secondly, I repeat--the noble and learned Lord repeated it and we all repeated it to each other--that we recognise that reservations are not allowed under the Rome Statute. That is why the amendment, which specifically mentions reservations because they are relevant to other treaties, emphasises the point about declarations. It simply asks that Parliament should be involved in the process leading up to such declarations as Her Majesty's Government will put down at the time of ratifying the statute in the ratification status document.

I am afraid that, although the noble and learned Lord promised not to lose contact over these matters, he did not address the central issue of whether Parliament should be properly involved. I shall turn in a moment to the broader question raised fascinatingly by the noble Lord, Lord Lester, about the extent to which Parliament should be involved in any treaty arrangements or to what extent the Royal Prerogative prevails. In this case, which I shall argue is a special case and not a precedent-setting case, the right of Parliament to know what is happening is very strong and can be reasonably pressed.

Behind the issue is the worry, which was addressed with great eloquence by the noble Lord, Lord Shore, that these war crimes are widely drafted and need the most careful guardianship with assessment. We raised the matter at earlier stages of the Bill and this is the point where suitable declarations ought to be drafted and brought before Parliament in order to reassure those who are worried and to safeguard our Armed Forces and other people.

There is no doubt that the definitions are wide. The point has been made not only in this House, because the new American Under-Secretary of State, John Bolton, said:

    "War crimes have enormous definitional problems concerning civilian targets ... Would the United States, for example, have been guilty of war crimes for its World War Two bombing campaigns and the use of atomic weapons under the Rome Statute?".

That is not a frivolous comment made by a bystander; it is a serious comment made by a senior member of the American administration.

We shall turn to the responsibility of commanders when we debate Amendment No. 6. We shall also debate matters relating to the Manual of Military Law and to what extent it covers, and has long since covered, all these issues and all the various definitions of war crimes. The noble and learned Lord was kind enough to give us a long history of the way in which the

20 Mar 2001 : Column 1305

various crimes have become recognised international crimes and have long been accepted as part of the context in which war must be fought, as, indeed, it could and has been argued, have the lists of crimes in the military manuals and the rules of engagement.

However, with the greatest respect to the noble and learned Lord, all that is extremely interesting but, to use his own words, it completely misses the point. The point is that whether or not the crimes were previously on the statute book, we are now introducing a new and higher jurisdiction which may, in some cases we are not willing to investigate, want to press the matter. This is a new aspect, a new dimension, to an existing situation. It is no defence to say that because for years and years we have recognised these as international crimes everything is as before. Everything is not as before. The Bill is proof that we are trying to change things; we are trying to introduce a new jurisdiction. We welcome that in principle, but it means that we must be 10 times more careful in our handling of the definitions of these war crimes.

The noble and learned Lord urges that we be at the forefront in carrying forward the project. Indeed, other noble Lords have spoken again and again about the need for the United Kingdom to set an example and be among the founder members and so forth. I suggest to Ministers and to the noble and learned Lord that there are two ways in which we can best be an exemplar and a role model. First, we must try to bring along the great United States, which has enormous concerns. Its non-participation will come close to wrecking the project; it will severely question the plausibility and credibility of the International Criminal Court if we cannot get the Americans to move further than merely signing with reservations. We shall debate the American position in a moment, so I shall not go into more detail. However, everyone is agreed that American involvement would be a huge advance and to take steps to encourage that would set a fine example. However, they have made it absolutely clear that they are opposed to ratification, and General Colin Powell repeated that again recently.

The second way in which we should set an example would be to reassure our Armed Forces and to do so in ways which show that we recognise that there is a new situation. For all the rules of engagement, and for all the war crimes which have been adopted as international crimes since 1909, there is a new situation in which a higher jurisdiction may--not always, of course--want to involve itself at the instigation of an independent prosecutor who will not come under British jurisdiction.

Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent? I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while

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the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.

The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.

The range of crimes, to some of which the noble Lord, Lord Shore, referred, sounds rather fearsome. As I child, I remember receiving a message that my father had escaped from the second siege of Tobruk, which very much pleased me. It never occurred to me, and I am sure to him, that war crimes were involved. It is very difficult to define a siege and a military objective. Those matters have been on a list of international crimes and are now coming onto our statute book. I believe it is right that we should have some protective declarations to reassure our people that these matters will be handled in a sensible, mature and wise way. In so doing that will merely reflect the concerns expressed by our neighbour France, Israel, the debates in the Canadian and New Zealand Parliaments, although they are enthusiastic supporters, and the most learned minds in the United States. We should not be afraid of keeping such company. I believe that we should pursue the action set out in the amendment.

Lord Williams of Mostyn: My Lords, I gathered that the noble Lord was coming to his conclusion. Since he put a question to me earlier I thought it better to allow him to develop his theme. I hope that I have not intervened too early in order to assist him and the House. The noble Lord asked me a particular question about Clause 50. I should not like the noble Lord to proceed on a misapprehension. Clause 50, which draws on the Geneva Conventions (Amendment) Act 1995, makes provision by Order in Council. The Delegated Powers and Deregulation Committee did not comment adversely on that and call for the affirmative resolution procedure. I do not want the noble Lord to proceed on an incorrect basis.

Lord Howell of Guildford: My Lords, that is a further disappointment and does not in any way impede me from uttering the final sentence of my speech. I propose that the opinion of your Lordships' House be tested upon this amendment.

4.23 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

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Their Lordships divided: Contents, 120; Not-Contents, 172.

Division No. 1


Ampthill, L.
Anelay of St. Johns, B.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Biffen, L.
Blaker, L.
Blatch, B.
Boardman, L.
Brabazon of Tara, L.
Brightman, L.
Brougham and Vaux, L.
Burnham, L. [Teller]
Byford, B.
Caithness, E.
Campbell of Croy, L.
Chadlington, L.
Chalfont, L.
Clark of Kempston, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Cranborne, V.
Crickhowell, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Feldman, L.
Ferrers, E.
Fookes, B.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glenarthur, L.
Glentoran, L.
Gray of Contin, L.
Greenway, L.
Hanham, B
Hayhoe, L.
Henley, L. [Teller]
Hodgson of Astley Abbotts, L.
Hogg, B.
Holderness, L.
Home, E.
Hooper, B.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lindsay, E.
Liverpool, E.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Noakes, B.
Northesk, E.
O'Cathain, B.
Onslow, E.
Oxfuird, V.
Park of Monmouth, B.
Peyton of Yeovil, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Rees-Mogg, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rotherwick, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Seccombe, B.
Selborne, E.
Sharples, B.
Shaw of Northstead, L.
Shore of Stepney, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Strange, B.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Thomas of Gwydir, L.
Trumpington, B.
Vinson, L.
Vivian, L.
Waddington, L.
Wade of Chorlton, L.
Wakefield, Bp.
Walker of Worcester, L.
Weatherill, L.
Willoughby de Broke, L.
Young, B.


Ackner, L.
Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews. B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blease, L.
Bradshaw, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Dixon, L.
Dormand of Easington, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Ewing of Kirkford, L.
Ezra, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Greaves, L.
Gregson, L.
Grenfell, L.
Hamwee, B.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooson, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hutchinson of Lullington, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Laming, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Chilthorne Domer, B.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Molloy, L.
Morris of Castle Morris, L.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Orme, L.
Parekh, L.
Peston, L.
Phillips of Sudbury, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L
Richard, L.
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Roper, L.
Russell, E.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L
Simon, V.
Simon of Glaisdale, L.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Taverne, L.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Whitty, L.
Wigoder, L.
Wilberforce, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

20 Mar 2001 : Column 1309

4.35 p.m.

Lord Lamont of Lerwick moved Amendment No.2:

    Before Clause 1, insert the following new clause--

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