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Mr. Maude: If the Foreign Secretary is absolutely confident that that will never happen, let him agree to amendments to the Bill that will guarantee that it will never happen. If he agrees that, he will have our support. As it is, we have relayed the concerns felt by those who take responsibility for the command of the armed forces, and they have not been reassured. If the Foreign Secretary agrees to our amendments, we will be willing to support the Bill on Third Reading.
Sir Nicholas Lyell: I hope that the Foreign Secretary will listen to this point. Is my right hon. Friend aware that Mark Littman QC, who is a highly respected international lawyer, took a view that is worthy of serious respect, even though I do not agree with it? He took the view that the Government acted unlawfully in the bombing of the former Yugoslavia--
Sir Nicholas Lyell: Mr. Littman took the view that the Government acted unlawfully in the bombing of the former Yugoslavia and Belgrade in the circumstances that arose over Kosovo. If the international prosecutor took that view, what would prevent members of the Government--
Sir Nicholas Lyell: Although I hope to be called to speak, I was asking my right hon. Friend the Member for Horsham (Mr. Maude) a question. A serious lawyer suggests that the British and United States Governments acted contrary to international law and that what they did might have been a war crime because quite a lot of civilians were killed. Could the Government have been prosecuted? We need an answer to that question before we drive the Bill through.
Mr. Maude: Perhaps the hon. Gentleman is even lowlier than that. He has derided the real concerns that many serious people--much more serious than him--have about this important Bill. Others outside will have noted the extraordinary spirit of levity with which he has approached the debate.
My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) asks an important question and it deserves an answer from the Government. I hope that Ministers will respond properly to that concern later.
We believe that four amendments must be made to the Bill. First, there should be a seven-year opt-out as the French have taken and as is provided for under article 124 of the Rome statute. When it comes to the robust defence of the national interest, perhaps we sometimes have something to learn from the French. They deliberately took that option to ensure that there would be no hazard to their armed forces.
Secondly, the Secretary of State should have discretion over the issuing of warrants from the ICC. That could be accomplished by the Government making the appropriate interpretative declaration to the statute. It is important to ensure that a vindictive prosecution pursued for the settling of political scores cannot be undertaken in that way.
Thirdly, the legal test for what a military commander "should have known"--as set out in clause 65--needs revising. It is extremely subjective and that gives most concern in relation to the protection of our armed forces. When the issue was raised in the other place, we were told that the Bill must reflect the exact words of the statute of Rome, but that cannot be correct. In relation to this specific provision, the Canadian Government and Parliament have a different form of wording, which imposes a tougher test--a higher test for the mental element, which is one of the concerns that my hon. Friend the Member for Stone (Mr. Cash) mentioned. They talk about a test of criminal negligence and about a commander who would be criminally negligent if he did not know the facts that put civilians at risk.
Fourthly, the Government should amend the Bill to ensure that, if the statute is ratified, the declarations that the Government intend to make--if they make any--should be laid before both Houses of Parliament. I understand that there is the possibility that declarations and subsequent renegotiations may create new criminal offences in domestic law and it is right that those should be properly debated by the House before they pass into our law.
That is the very minimum that must be put into the Bill to protect our armed forces from vexatious and malicious prosecutions by rogue states. Let us be under no illusion about that. Let us remind ourselves of the immense power that the court will have and that it needs to have if it is to pursue the high objectives that have been claimed for it.
We support the principle of the Bill on Second Reading, but, as I have said, for us to be able to support it on Third Reading, the Government will need to show a great deal more flexibility and a great deal more readiness to meet the proper concerns that many people have raised than they have done hitherto. We look forward to that happening in Committee.
We have just listened to a strange contribution. The right hon. Member for Horsham (Mr. Maude) said that he supported the Bill, without showing the slightest enthusiasm for it. Every difficulty was considered in the context of an Army commander. This Bill is of great importance and we should greet it with enthusiasm.
I congratulate my right hon. Friend the Foreign Secretary and his team. I am certain that our presence at the Rome conference and our contribution towards the Rome statute were important factors in reaching this solution. I doubt whether the outcome would have been the same under the right hon. Member for Horsham.
The Bill is welcome. Many of our predecessors here and in the other place have been persistent in their efforts to reach this day. A gap in our justice system is gradually being filled--we are trying to end the cliche that it is easy for the greatest mass murderers to get away with their crimes when single murderers are convicted. I like what Kofi Annan said about people all over the world wanting to know that humanity can strike back. Tyrants and demagogues have unacceptably exerted their power without running the slightest risk that they might have to face up to justice. I congratulate my right hon. Friend on the Bill. We have to accept that it is not perfect. It will not create a perfect International Criminal Court, but it is crucial that we do not allow the best to drive out the good. If we do not embrace the Bill, we will not get an ICC. It is an important step.
Other significant improvements in recent years include the two tribunals for Rwanda and the former Yugoslavia. Their establishment is a great achievement, and the previous Government must take some credit for that. Offenders are appearing before them and being convicted. They are powerful examples of international co-operation. I could not believe it when the Conservatives said that they want to set up the ICC, but only if it does not apply to us. They do not want anyone from Britain to be subject to its control. We cannot give that unconditional undertaking. We have to hope that no one from Britain will be involved in it--we can ensure that that happens by investigating and prosecuting in our courts.