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3.53 pm

Mr. Crispin Blunt (Reigate): I beg to move, That the clause be read a Second time.

It is a pleasure to speak to new clause 2. We discussed it in Committee, but I chose to withdraw it so that we could return to it on Report. It deals with immensely important principles, to which we referred in the debate on the programme motion, despite Madam Deputy Speaker's energetic efforts to stop us. We are especially concerned about the ability of Parliament to oversee the Executive and the way in which it can--or cannot--control the royal prerogative power of treaty making. An interesting alliance was formed in the earlier debate between the hon. Member for Islington, North (Mr. Corbyn), my hon. and learned Friend the Member for Harborough (Mr. Garnier) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), all of whom identified the need to implement the principle that is at the heart of the new clause, which would give more power to Parliament to oversee the Executive.

The new clause also goes to the heart of the Rome statute and the problems that are inherent in it, which the Opposition tried to correct in Committee.

Mr. Jeremy Corbyn (Islington, North): The hon. Gentleman knows my opinions on the royal prerogative. Will he make it clear that the purpose of the new clause is to strengthen the Bill, not to impede it? He appears to be saying that if any change is made to the ICC statute, that should be discussed by us. Is that over and above what is in the Bill, or is he making a genuine attempt to ensure parliamentary accountability?

Mr. Blunt: I am happy to allay the hon. Gentleman's concerns. This is a genuine attempt to increase the accountability of the Executive. It is possible to make substantial changes to the statute after we have concluded our proceedings and, unless we accept the new clause, we will have no means of bringing the Executive to account.

The hon. Gentleman will notice that the new clause refers specifically to article 121, which is the mechanism in the Rome statute by which amendments can be made. I have tabled it because I am concerned about the fault lines in the statute, which the article identifies. We have signed up to the statute, and it is possible that France will do the same. However, Her Majesty's Government have negotiated our proceedings in such a way that it is difficult to believe that other major countries, such as China,

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Russia, India and the United States of America, will also sign up. That is because the statute grants power on a nation-by-nation basis. There is no recognition of the contribution that each nation makes to world security or of the balance of influence in the world.

The statute sets out the majority that is needed for it to be amended. Fundamental amendments to the list of crimes will require a seven eighths majority of the states party to the statute to agree. Hon. Members should bear in mind the fact that even if the statute is amended fundamentally by changing articles 5, 6, 7 and 8, seven eighths of the countries representing 1.1 billion people could outvote the countries representing 3.8 billion people, if China and India accede. Governments who represent more than three quarters of the world's population could be outvoted on the most fundamental changes.

In Committee, the Solicitor-General made it clear that if changes arise from a seven eighths majority under article 121, they would have to be implemented in primary legislation because they would change the nature of what constitutes a crime in English law. I acknowledge that. However, he was not clear about changes to the way in which the court will be administered, which could be fundamental to its procedures and how it pursues those people whom it identifies as criminals.

We spent much time in Committee discussing the possibility of the ICC trying to bring British citizens to justice when the United Kingdom has decided that they have no case to answer. That could happen. I am sure that the hon. Member for Islington, North would say that that is appropriate because that is what the ICC is for. If individual nations seek to defend citizens in the event that they have committed a crime as decided by the ICC, those people should be brought to justice. If we in the United Kingdom decided that there was no case to bring against a British subject but there was still a warrant for their arrest and a desire to bring them to trial at the ICC, there would be a crisis between the UK and the ICC.

4 pm

The way in which the court will operate, how individuals are elected to various positions and how the pre-trial chamber will work are matters that are contained in the detail of the statute, which can be amended by a two-thirds majority of the states parties. A collection of small countries representing a small fraction of the world's population could outvote the larger countries and a substantial majority of the world's population. In those terms, the figures become even more dramatic.

The interests of the large states have not been represented or protected in the statute, and a mechanism should have been found to enable that to happen. That is why, sadly, the large states are unlikely to ratify the treaty. In the end, that will be calamitous to the prospect of the ICC becoming the successful institution that I believe right hon. and hon. Members on both sides of the House want it to be.

The purpose of the new clause is to enable Parliament to have the opportunity, every time an amendment is agreed to the ICC statute under article 121, to consider it within six months. The Government would have to obtain the positive approval of both Houses. That is not a substantial parliamentary burden to place upon the Executive. A simple motion would have to be passed in

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each place. The clause does not provide that the procedure should be by way of positive resolution. It would impose a limited burden on the Executive in terms of parliamentary time.

Given that changes to the statute could be fundamental to the way in which the ICC works, the clause should commend itself to the House. The principle behind it appears to have the commendation of right hon. and hon. Members on both sides of the House. We heard from the hon. Member for Islington, North when we were debating the programme motion. In Committee, the Solicitor- General chose not to oppose my point in principle. He said:

That adduces the Ponsonby report.

The hon. and learned Gentleman added:

As the position in principle has been conceded by implication by the Solicitor-General in Committee, and given the view that has been expressed across the philosophical divide in the House about the necessity for Parliament to take greater power over the Executive's exercise of royal prerogative powers in this respect, the clause should commend itself to the House, and I hope that it will.

Mr. Edward Garnier (Harborough): I support the new clause because it allows us to consider the huge constitutional implications that lie behind the Government's prerogative powers, which they hold in trust for the sovereign, in the making of treaties.

In Committee, I complained on several occasions--no doubt to the great inconvenience and boredom of other members--that we could amend the Bill, subject to the arithmetic of Committee membership, but we could gain no purchase on the statute of Rome. All three parties represented in Committee agreed that the ICC was an aim worthy of achievement. However, we did not agree with the detail of the statute of Rome--the treaty that we were signing up to--in every respect. We had fundamental concerns, not least about the protection of our armed forces and our military and political commanders if the statute of Rome were to be ratified.

The clause highlights the absence of connection between the Chamber and the Government, which is the sovereign. As I said in an intervention on my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) when we were debating the programme motion, by means of the statute of Rome we are handing over powers to an extra-territorial body. We are not handing the powers of our citizens, which we hold in trust for them, to an extra-governmental body such as the United Nations or the European Union. They are being handed to a court. Once the court is set up after ratification by 60 states, Parliament will have little influence over it, except in the most indirect way.

I applaud my hon. Friend the Member for Reigate (Mr. Blunt) for reintroducing the debate at the 59th minute of the 11th hour of this Parliament. I am not necessarily wedded to the exact detail of his scheme, but that does not matter. Other schemes have been suggested.

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In the other place in the early part of the year, Lord Lester of Herne Hill mentioned referring treaties to Select Committees of the other place. He talked about the Ponsonby rule and about the Conservative Administration publishing impact statements for the consideration of Parliament on the effect of treaties upon the UK. However, none of the schemes that we have so far discussed allows in any real way for the elected Members of this place to have any control over how the sovereign power of exercising the prerogative is dealt with by the Government.

For once, I do not attack the motives of Ministers. They have plenty to be embarrassed about, but their motives in wanting the ICC to come into existence are of the finest. However, they appear to forget the constitutional issues that underlie the making of treaties, and the handing over of Parliament's powers and government to extra-territorial bodies, which must necessarily follow, is something that we ignore at our peril.

I may be wrong, but I suspect that until those matters came to be discussed in Committee, many Labour Members who served in Committee, and certainly many Members who were not on it, had no idea that they had no purchase on the treaty.

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