International Criminal Court [Lords]

[back to previous text]

Mr. Desmond Browne (Kilmarnock and Loudoun): In a sense, the hon. and learned Gentleman has put his finger on the problem with the amendment. The purpose of the Bill is to ratify the statute of Rome. Is it his argument that we should not ratify it? If we seek to ratify it by legislation that preserves our right not to comply with it—it includes a mandatory obligation in the provisions under article 59—we cannot ratify it.

Mr. Garnier: That is not how I would put the problem that I am facing. The statute of Rome is an international treaty agreed by a collection of Governments, and we are one of many signatories. The Committee is considering whether the treaty should be ratified. Under the Ponsonby rules and various conventions and debating procedures, the Government—not only this Government—have condescended to allow Parliament to become involved in discussions about treaty making. However, I understand that the Government can ratify the treaty without Parliament's permission; we are not necessary to the ratification process. The Minister of State or the Solicitor-General might correct me if I am wrong about that. In due course, it might become established in convention that no international treaty can be ratified without parliamentary intervention.

We are introducing into domestic law parts of or all of the treaty, so that our own courts can try cases of genocide, for example, or war crimes; I use the expression loosely. However, it is a slightly confusing exercise. The discussions between the hon. Member for Kilmarnock and Loudoun (Mr. Browne) and my hon. Friend the Member for Reigate this morning were fascinating but, in a sense, unworldly. Each understood the position of the other, but whatever the end result of their conversations or our deliberations, we would have no purchase on the statute of Rome.

I want to see an international criminal court set up. There might be arguments between individual members of the Committee—and, indeed, between individual members of the Opposition and of the Government—as to the least imperfect way of introducing an international criminal court. I have my own personal views, having visited the international criminal tribunal for the former Yugoslavia in The Hague last year. It was an interesting experience. If the hon. Member for Kilmarnock and Loudoun has not been there, I suggest that he goes.

Mr. Browne: I have not visited the tribunal in The Hague, but I have visited the tribunal for Rwanda, so I have had a similar experience. There are problems with such courts, but I hope that the creation of an international criminal court, which will be free of some of the political influences that clearly affect them, will solve some of the problems.

Mr. Garnier: I am sure that the hon. Gentleman is right. We must do the best that we can with the procedures with which we are faced. I do not know whether that is an excuse or an explanation for the sense of frustration that I feel. It may well be that over time we will change the manner in which we make treaties. Ironically, I believe that his right hon. Friend the Member for Chesterfield (Mr. Benn) agrees with me. In the course of the next few parliamentary generations, we must examine how we make treaties. The right hon. Gentleman thinks that it is constitutionally wrong for the Executive, particularly the sovereign—effectively the Prime Minister—to make treaties without Parliament's permission, although we have not reached that stage yet. The right hon. Gentleman is about to leave Parliament to engage, so he says, in political life on a more full-time basis. We shall no doubt read what he writes and listen to what he says over the years with interest.

I hope that I shall not be accused of being patronising, but the hon. Member for Kilmarnock and Loudoun made an interesting and helpful series of interventions during our deliberations in Committee. I am glad that he did so, because it helps the way in which we fashion our legislation.

5 pm

Having expressed my frustration, not for the first time, at the proceedings with which we have had to cope, I turn to the articles of the Rome statute that would be especially affected by our amendments to clauses 2 and 3. I accept that there is a general obligation to co-operate at article 86, which says:

    ``States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.''

That is fine. We can all see what that means, but I suggest, with some diffidence, that it does not necessarily follow that we should always do as we are told without an investigation or a response. Our co-operation does not mean some form of suzerainty or unquestionable power being given to the International Criminal Court and its various offices. There can be questioning co-operation, so I invite the Solicitor-General, perhaps in his response to the arguments that I am deploying, to educate me on the Government's view of the meaning of full co-operation in the articles under discussion.

I said at the outset that discretion is given to the court by the statute, but it is not given to the Secretary of State under the Bill. Article 87.4 states:

    ``In relation to any such request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.''

There may be any number of very good reasons why the court should want to protect the confidentiality of its sources and the physical or psychological welfare of victims. However, if the statute allows the court discretion over what it may or may not do in particular circumstances, why should we, as the representatives of the British people, who hold the Secretary of State to account, allow him to be fettered by an absence of discretion?

Article 87.5(a) states:

    ``The Court may invite any State not party to this Statute to provide assistance''.

Sub-paragraph (b) says:

    ``Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties''.

Paragraph 6 states:

    ``The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.''

Paragraph 7 states:

    ``Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.''

Those are all discretionary paragraphs, or paragraphs that provide the court with a discretion in its dealings with regard to co-operation between states parties and between the court and non-states parties.

Mr. Browne: Are not those discretionary paragraphs limited to requests for co-operation under article 87, which must be distinguished from requests for provisional arrest or for arrest and surrender under articles 59 and 89 respectively? There are no similar provisions in relation to discretion. The amendment would affect the operation of the provisions in relation to articles 59 and 89. It does not help the hon. and learned Gentleman's argument to say that the court will exercise discretion in relation to other aspects of the treaty. The court clearly needs to exercise a degree of discretion because that empowers it to make requests to parties that are not parties to the treaty.

Mr. Garnier: I am sorry to be tedious, but my argument is not a snapshot. It has to be looked at in a linear way. The hon. Gentleman is quite right. I will turn to article 89, which deals with the surrender of persons. The mere fact that the discretion that the court is permitted to have under the treaty is in each part of the statute directed to a particular collection of functions, does not detract from my argument that, if the court is provided with discretion under the statute in various activities, it may or may not do certain things. Indeed, article 89.4 states:

    ``If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.''

Hanging over that final paragraph of article 89 is the ability to consult with the court. To what end? Presumably, since it is left vague, it is up to the state or the court to engineer its consultation exercise in such a way that it meets the needs of the consulter and the consultee. None the less, a degree of flexibility is provided to the engines or the machinery invented by the statute under articles 86, 87 and 89, which is not, I regret to say, reflected in the Bill itself.

Article 89.1 states:

    ``The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

The interesting point here is that the article at least nods in the direction of an acceptance that there may be differences in national law and procedure. Therefore, when we are making our own national law and procedure, as we are doing under clauses 2 and 3, we should not feel bound to draft our legislation in such a way that our Secretary of State is denied any discretion.

It is not unknown, not least for a Law Officer, for example, who has the statutory duty to grant leave for the bringing of certain prosecutions, to exercise his discretion. It is not unknown for the Crown Prosecution Service, under our present system, to exercise its discretion about whether to bring a prosecution, even though in any given case the evidence may be sufficiently clear to suggest that were the matter proceeded with, a conviction could be achieved. It may not be in the public interest, despite the fact that there is sufficient evidence to convict, to bring a particular prosecution.

It is healthy that the CPS, as the body that mounts prosecution on evidence produced by the police, and the Attorney-General and the Solicitor-General in their roles as the political heads of the prosecution service, can exercise their discretion fearlessly and independently when making decisions about whether to prosecute in cases that come within their remit. In our legal system the Secretary of State has a discretion about whether to initiate a prosecution or--and I am thinking of the Pinochet case simply because it is an easy one to remember--whether to permit further stages of an extradition case to go ahead. It was open to the Secretary of State for the Home Department to prohibit the further proceedings in the extradition case brought by the Spanish magistrates in the English courts.

5.11 pm

Sitting suspended for a Division in the House.

5.26 pm

On resuming—

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 24 April 2001