International Criminal Court [Lords]

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The Chairman: Is it the Committee's wish that the amendment be withdrawn?

Mr. Blunt: On a point of order, Mr. Cook. I know that you have moved on, but I thought that I saw the Minister trying to catch your eye. I have asked the Minister for an assurance. We are at an important point of the discussion. I hope that the Minister will have an opportunity to respond.

The Chairman: I picked up the phrase ``at a later stage'', and wrongly assumed that the hon. Gentleman was expecting that assurance later.

The Minister of State, Foreign and Commonwealth Office (Mr. John Battle): I apologise for not making it clearer that I wished to speak. I am grateful to the hon. Member for Reigate (Mr. Blunt) for his undertaking to withdraw his amendment. There is a technical flaw in amendment No. 40. I know from being in opposition that it is hard to get the legal niceties right, but that is not the substance of our objection. Amendments Nos. 38 and 39 would, through implication, have altered the tone and intention of the Bill. They implied that if Parliament did not like the ICC's ruling on admissibility, we would withdraw from the ICC.

This is not about blind faith, but an element of trust is involved. In one sense, I did not think that the analogy given by my hon. Friend the Member for Preston (Mr. Hendrick) was too far removed. We should go into this with some commitment. Our first position should not be to negotiate an immediate withdrawal. Relationships may work better when one is attempting to work at them. I extend that analogy deliberately because a process is involved here. The hon. Member for Reigate invited me to make that point. An organisation is being formed— I emphasise the word ``organisation''—and we must get together to agree the details.

Any institution has the capacity not to work. We cannot always legislate simply for failure and nor can the organisation be issued a blank cheque to enable it to behave in any way that it sees fit. We agree entirely with the hon. Gentleman about that. Judges, for example, cannot develop the crimes in the statute as the hon. Gentleman suggested. Article 22 states that the crimes must be considered as set out in the statute and cannot be extended by analogy. Similarly, the ICC cannot ``develop'' the crimes in the statute to create new crimes. I listened to the hon. Gentleman's comments about the international drugs trade with great interest, but this may not be the arena in which to sort it out and at present it cannot be that arena. New crimes can be created only by amending the statute.

Article 22.2 of the statute states:

    ``The definition of a crime shall be strictly construed and shall not be extended by analogy.''

It cannot go in the direction that the hon. Gentleman suggests. I am grateful to him for raising these matters, as they are important. The Government believe that the best way to exercise control over the ICC's future development is to be part of it. That is why we want to be among the first 60 to ratify and so be able to be part of the process of the nomination and election of judges and prosecutors. I hope that that helps hon. Members. As part of the ICC we will, of course, continue to be fully engaged in its future development. I use that dynamic phrase ``future development'' deliberately. If we are engaged we will be best placed to solve any problems that may emerge by amendment. The worst solution would be that if we were not quite happy with how things were going, we should simply withdraw all support under article 127.

I am grateful to the hon. Gentleman for raising those issues and I hope that he is assured that we want to be proactive in this organisation. It will develop, but it cannot go down the road suggested by the hon. Gentleman: defining new clients is ruled out under the statute.

4.45 pm

Mr. Blunt: I am grateful to the Minister for his reply, but he has not provided sufficient reassurance for me to say that I shall definitely not return to the matter on Report. As you rightly noted, Mr. Cook, there will be a further opportunity to discuss similar declarations later. At this initial stage of parliamentary consideration—part of the ratification process of the statute—we should put our reservations on the record. I shall examine the Minister's words further to establish whether to return to the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Garnier: I beg to move amendment No. 14, in page 2, line 10, leave out `shall' and insert `may'.

The Chairman: With this we may take the following amendments: No. 15, in page 2, line 15, leave out `shall' and insert `may'.

No. 16, in page 2, line 24, leave out `shall' and insert `may'.

No. 17, in clause 3, page 2, line 34, leave out `shall' and insert `may'.

No. 18, in clause 3, page 2, line 41, leave out `shall' and insert `may'.

No. 19, in clause 3, page 3, line 3, leave out `shall' and insert `may'.

No. 21, in clause 3, page 3, line 10, leave out `shall' and insert `may'.

Mr. Garnier: The amendments relate to clauses 2 and 3, which deal with the arrest and delivery of persons. The amendments are designed to give the Secretary of State the discretion not to initiate the sending of documents to a judicial officer, thereby maintaining the autonomy of the United Kingdom in international matters.

The amendments to clause 2 are based on the premise that the Secretary of State should be accountable to Parliament. We submit that he should retain the discretion to refuse to activate a request for arrest and surrender. The other amendments would give the Secretary of State discretion in endorsing the warrant for execution in the United Kingdom where the request for arrest and surrender is accompanied by a warrant for arrest and the judicial officer is satisfied with it.

The purpose is not to destroy the scheme of the Rome statute, but it is worth noting that although the statute does not presently permit the exercise of discretion by the Government or the Secretary of State, it does permit it by the court. I shall demonstrate the fact with reference to articles in the statute.

I am unsure whether the Solicitor-General or the Minister of State will respond, but I should like to return to points raised in another place by my noble Friend Lord Howell of Guildford. In response to the opinion of Geoffrey Robinson, QC, who said that our soldiers would, in theory, have to be tried by the International Criminal Court, my noble Friend stated:

    ``This is a sobering clarification. It reinforces my belief that while upholding many of the noble principles behind this project, we must seek at every point to safeguard our own capacity to be a competent player on the international scene by ensuring that our Armed Forces and Crown personnel are protected from new risks. It is not protection from the law if they commit war crimes but protection from new and sometimes vexatious and unpredictable risks.''

A little earlier, my noble Friend had said:

    ``We should uphold our international responsibilities. We should maintain our own confidence in our international reputation, but we should also protect our interests and our people. To do that we need some discretion. These amendments offer that discretion.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 370-74.]

I wholeheartedly agree with him.

The amendments in another place did not find favour with the Government or the Liberal Democrats. I want to take the Committee through some of the arguments that were raised against my noble Friend Lord Howell in Committee in the other place. Having introduced similar amendments on 8 February, my noble Friend was met by these comments from the Attorney-General. Lord Williams said:

    ``If discretion were introduced, nothing of value would be added to the Bill. The amendment would produce circumstances that were contrary to Article 89(1) of the statute, which provides that states parties `shall' comply with requests for arrest and surrender. It is not right for a Minister, for instance, to be able to decide to give no effect to such requests—that would be in breach of Article 89(1).''

I regret that that was rather a poor response, both in terms of quantity and quality, to my noble Friend's arguments.

The Attorney-General was supported by Lord Lester of Herne Hill, the Liberal Democrat lawyer, who said:

    ``This raft of amendments, apart from being inconsistent with the statute, would fetter or add restrictions to the role of the ICC and would give more responsibility to national courts and Ministers of the Crown in the exercise of what would be a very broad discretion. With respect and in relation to the philosophy that underlies the statute and the Bill, it does not seem to us that that approach is sensible...The amendments would limit the role of the ICC, and they would do so in relation to arguments that are really based on national or state sovereignty and the role of national institutions.''

The Attorney-General returned to the subject later in the debate and said:

    ``If the statute requires us to carry out certain acts, then this amendment puts us immediately in breach of the statute, and the whole purpose of this Bill is to give effect to the statute, as I thought everyone who spoke on Second Reading agreed was a good thing.''

He also said:

    ``One cannot have a discretion imported in the way that the noble Lord, Lord Howell, suggested, or it may be that the noble Lord, Lord Kingsland, wishes, in those circumstances. The obligation is quite plain. It is not a discretion for the Secretary of State. If one wants to challenge the proceedings, Clause 5(4) provides the opportunity to make that challenge.''

He dealt with the same point again, when he said:

    ``My point remains that there is the opportunity for challenge to the jurisdictional basis of the ICC. That is provided in Clause 5(4). When that challenge is made, the competent court—namely, the court in this jurisdiction—may adjourn and no further judicial step is taken in this country about surrender until the admissibility of the case or the ICC's jurisdiction has been determined.''

My noble Friend Lord Howell heard that and took it on the chin. He said that his aim in tabling the amendments had been

    ``to show the strength of the obligations from a higher jurisdiction that the Bill intentionally places upon us.''—[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1274-80.]

I discussed this dilemma with the Minister of State before Easter. We are in a slightly unreal position in Committee because, although we can amend a piece of Government legislation as Parliament wishes, we cannot get a grasp on the Rome statute. It must be taken or left. I do not know how many Committee sittings are left but, in one sense, we are wasting our time. Although it is delightful to debate the issues—we had an interesting debate this morning, which was initiated by my hon. Friend the Member for Reigate—even if amendments were accepted, that would not have any effect on the Rome statute. That is a matter of Crown prerogative, as we have discussed before. Only the Crown can enter into treaties, and if the Crown wishes to amend a treaty, it will do so almost as a matter of contract. It cannot be affected by anything that we say or do in Committee.

I find myself in a frustrating position: no matter how cogent or lacking in merit my arguments might be, no matter what the Committee does with the amendments that I or my hon. Friends might wish to debate or press to a Division, the agreement that the Government, as the representative of the sovereign, has made with the other signatories—the other state parties—in relation to the statute of Rome will not be altered.

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Prepared 24 April 2001