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Mr. Robin Cook: I remind the right hon. Gentleman that the statement that it would not happen in practice was not mine. I quoted the words to correct him, as he had quoted Geoffrey Robertson QC as saying that there was a theoretical possibility. I reminded him that it was my hon. Friend who went on to say that it would not happen in practice. In my speech, I said that British service personnel would never be prosecuted, as we could pursue any bona fide allegation ourselves. There is no prospect of the sort of mischievous prosecution by a malign state to which he referred, because of the pre-trial procedure. I remind him of the words of the Opposition spokesperson in the House of Lords, Lord Kingsland, who said:

It is time that the Opposition gave up arousing--in their own way, mischievous--fears about an outcome that will never happen.

Mr. Maude: Two points arise from those comments. First, it is extremely patronising of the Foreign Secretary to speak in that way about the concerns expressed by the Chief of the Defence Staff--[Interruption.] He says that we are raising unjustified fears, but we did not speak to the Chief of the Defence Staff, who came to his own conclusions about his concerns about the armed forces, for which he has to provide the military leadership. If the right hon. Gentleman is suggesting that the Chief of the Defence Staff is so weak and vulnerable that he will be taken in by scurrilous remarks made by the Opposition, he should bear it in mind that he is referring to a serious leader who must make his own judgments. The judgment that the Chief of the Defence Staff has made is that he is not satisfied with what the Foreign Secretary and his colleagues are saying. That is what he said when he was asked about the matter in the Select Committee on the Armed Forces Bill.

Mr. Cook: The right hon. Gentleman knows perfectly well that the Chief of the Defence Staff said no such thing; neither could he possibly have said anything other than what I said on Second Reading, because the remarks with which the right hon. Gentleman is regaling the House at length--I think that he is doing so for the second time--were made before Second Reading and before I gave an unequivocal assurance.

Mr. Maude: I made it clear at the outset that the exchange from which I have quoted extensively occurred

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while the Bill was being considered in the other place. The concerns began to arise while the Bill was emerging from the other place and was in transit to this House. We were then able to raise the matter when the Bill was considered on Second Reading. It is remarkable that the reassurance that the Chief of Defence Staff needs has been provided by comments made by the Foreign Secretary in the Chamber. We were told that no concerns at all were expressed by senior members of the military or of the naval staff, but it turned out that that was not the case. At the time when the assurances were first made by Baroness Scotland in the other place, the Chief of the Defence Staff had already expressed the concerns in a House of Commons Select Committee, but the proceedings had not been reported at that stage.

My second point in response to the Foreign Secretary is that it is precisely allegations that are not well founded or based on bona fide cases about which we are concerned. Of course, we hope that a proper system of pre-trial review will weed out vexatious claims, but he cannot say with absolute confidence that it is impossible that any member of the British armed forces will ever find himself subject to the international jurisdiction of the International Criminal Court because the case will have been dealt with in international courts.

Mr. Battle: He will be charged by the national courts first.

Mr. Maude: I am not concerned about genuine cases, and I fully accept the Minister of State's remarks in that respect. Of course, the person would be charged by the national courts first in all such cases, but I am anxious about cases in which the national prosecuting authorities--whether military or civil--have already investigated a case and decided that no proper proceedings can be brought, but in which politically motivated proceedings--

Mr. Robin Cook indicated dissent.

Mr. Maude: The Foreign Secretary shakes his head and says that everything is fine, but it is not because that is not the end of the matter. It remains possible. Of course, if the matter has been adjudicated in the national courts, that is the end of it, but if the authorities have considered it and decided not to proceed in the national courts, it is still open to the ICC, as I understand it, to bring proceedings.

If the Foreign Secretary is so confident that it is completely impossible for those circumstances to arise, let him accept our amendments. They provide for a discretion to be exercised so that there is a watertight cut-out which enables Ministers who are confident that a case is completely vexatious to ensure that such a warrant is not executed against a member of the British armed forces. If he is so confident that the current system allows for that, let him provide for it in the Bill. Members of the armed forces are likely to place a great deal more reliance on something that is definitively enacted in statute than on his assurances.

Mr. Browne: Can the right hon. Gentleman explain to the House how his proposed new clause would achieve

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the level of reassurance for our armed forces that he seeks to give them? I do not support it. Any reservation made in terms of article 124 would relate only to crimes under article 8. Our soldiers will still be subject to the jurisdiction of the court under articles 5 and 6. There is no mechanism for reserving our position in relation to the jurisdiction there. The Foreign Secretary cannot therefore use any word other than "unlikely" himself when he gives the reassurance, even if the amendment is passed.

Mr. Maude: The main reason for new clause 3, which would provide for the seven-year opt-out, is that we think that it the best way of providing protection--

Mr. Browne: It is not watertight.

Mr. Maude: It is watertight in terms of protection for our armed forces. [Interruption.] The hon. Gentleman mutters from a sedentary position--

Mr. Browne: I will clarify the intervention. The ICC will still exercise jurisdiction over our nationals or in respect of crimes committed on our territory in relation to articles 6 and 7. There may be allegations that such crimes have been committed by members of our armed forces. Any reservations under article 124 will not refer to them, so we will still have to rely on the bona fides of the prosecution and the court to give our armed forces the protection that they need. It is better that we are in there, ensuring that that happens from the outset, than that we have half a solution.

Mr. Maude: The Government of France sought protection because they are as concerned as we are about the jeopardy in which their armed forces may be placed by the treaty as it stands. Their declaration under the treaty is:

They may have used a completely worthless form of words, but clearly the French Government concluded that a declaration along those lines would give their armed forces the protection that they require. It is odd that the British Government should be so relaxed about this that they are not concerned to give British armed forces the same protection.

4.45 pm

Mr. Mark Hendrick (Preston): If the right hon. Gentleman is seeking to get immunity for British military personnel and, to follow that logic, every other signatory to the treaty of Rome in a similar position, would it not be the case that the ICC could not prosecute military personnel per se? Indeed, none of the crimes listed under article 8 could be brought to prosecution by the ICC.

Mr. Maude: The Foreign Secretary is trying to assure the House that there is no question of British armed service men ever being subject to the ICC in any event. All I am trying to do is to give legal effect through the statute to the Foreign Secretary's solemn declarations

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made in this House. If he is prepared to be so definitive about it here, why is he not prepared to provide an equally definitive protection to the armed forces in the statute?

Mr. Corbyn: Can the right hon. Gentleman make absolutely clear whether his position is that the armed forces in general should be exempt from provisions in this statute?

Mr. Maude: I believe that the British armed forces should be exempt.

Mr. Corbyn: Why?

Mr. Maude: In the absence of genuine immunity, the armed forces will find their military efficiency, morale and ability to be operationally effective seriously inhibited. There will always be the anxiety that they will be second-guessed subsequently by those who are not in a military environment and do not understand the pressures under which they have been working. Those are precisely the concerns expressed by a number of senior military officers. In the heat of battle with battlefield decisions to be made, officers try to the best of their ability to interpret and give effect to the rules of engagement under which they are operating. Just the thought of any risk of subsequent second-guessing may inhibit, and affect adversely, their military effectiveness. The result of damaging military effectiveness is lives put in danger. We think that that matters.

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