International Criminal Court Bill [Lords]

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Mr. Edward Garnier (Harborough): I beg to move, That the clause be read a Second time.

The new clause would create a defence against what would otherwise be an unlawful use of force, or one that was alleged to be unlawful. It would allow a person to defend himself, others or property if it were

    ``essential for accomplishing a military mission''.

There are many obvious examples of such a thing.

Subsection (2) sets out the defence

    ``on the balance of probabilities'',

which is, as I think that we would all accept, the test for establishing any defence in criminal law.

Subsection (3) creates a defence

    ``to any allegation under the ICC statute''

about a person's conduct. The defence of duress from

    ``a threat of imminent death or . . . imminent serious bodily harm''

is created. Subsection (3)(b) refers to a person acting

    ``necessarily and reasonably to avoid this threat.''

As Conservative members of the Committee have mentioned before, we are concerned about the conduct of our armed forces, and the new clause has their concerns in mind. It cannot be right to have no defence available that one was defending oneself or others in what the ICC would otherwise judge as an unreasonable use of force.

I am acutely aware of clause 56 of the Bill, of article 31 of the statute of Rome, of section 3 of the Criminal Law Act 1967, and of the common law. Although I am somewhat reassured by existing English law, we must consider the context of the new ICC jurisdiction and the way in which it will touch on prosecution of our own subjects or those who are likely to be tried in English courts under the complementarity rule. I therefore seek reassurance that the Government have those points in mind, and will be able to translate the current state of English criminal law into the new jurisdiction.

The Solicitor-General (Mr. Ross Cranston): I can give the assurance that the hon. and learned Gentleman seeks. We have deliberately not introduced into the Bill the defences available under article 31 of the ICC statute. As the hon. and learned Gentleman has said, we are incorporating domestic law defences under clause 56—an approach adopted in previous legislation such as the Geneva Conventions Act 1957—because existing defences under our own law, which the courts use every day, are the best defences for individuals. Of course, under domestic law, defences of self-defence and of duress already exist.

I am sure that the hon. and learned Gentleman's assertion that the defendant must establish the defence of self-defence on the balance of probabilities was a slip of the tongue. If the issue is raised, the onus is on the prosecution to exclude that particular defence. Any move away from such a defence would reduce the protection of individuals.

Mr. Garnier: I wish it had been a slip of the tongue. I relied blindly on speeches made in the other place, and I wish that I had been a little more careful in my preparation.

The Solicitor-General: The hon. and learned Gentleman realises that the onus is on the prosecution to exclude the defence of self-defence—a principle set out in section 3 of the Criminal Law Act 1967 and in common law. The substance of subsection (1) of the new clause is therefore already dealt with in domestic law, as is the substance of subsection (3), given that duress is also recognised in domestic law.

Mr. Gerald Howarth (Aldershot): Can the Solicitor-General remind me whether the principles underlying Pepper v. Hart apply to proceedings in Committee, as well as to ex cathedra statements by Ministers at the Dispatch Box on the Floor of the House?

The Solicitor-General: Yes, Pepper v. Hart covers statements made in Committee. Defences available in domestic law are incorporated into the statute only where the legislation is ambiguous, but in this case the legislation is clear.

Given that the new clause does not pick up certain defences such as intoxication and mental incapacity, it could be argued that it would reduce the protections available to individuals under our law on the principle that by specifying certain defences, other defences, which are recognised by our domestic law, would not be available under the Bill. There is therefore a danger that the new clause would be self-defeating.

We do not pick up the defences specified in article 31, and, as I have said, domestic law recognises all of them. It could be argued that we are not dealing adequately with defendants, which returns us to the complementarity argument. If we do not deal with people properly, the ICC can say that it has jurisdiction under article 17, which is another problem with the new clause.

10.15 am

Mr. Howarth: Is the Solicitor-General saying that notwithstanding the fact that there is no defence of intoxication in our domestic law, because article 31 specifically provides for that defence, our courts would also be required or able to rely upon that in respect of someone being tried in the United Kingdom?

The Solicitor-General: The position on intoxication in our domestic law is quite complicated. There is limited recognition of a defence of intoxication, but it depends on whether the intoxication is voluntary or involuntary. It also depends on an arcane aspect of our criminal law as to whether the offences are ones of basic or specific intent. In as much as there is a defence of intoxication under article 31, I can give the assurance that that is reflected in our domestic law.

The only difference in terms of the new clause moved by the hon. and learned Member for Harborough concerns the provision about defensive operations. In moving the clause, he has picked up the language of article 31, but used it in the opposite way to that intended in the Rome statute. Article 31.1(c) states:

    ``The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph''.

That is fairly straightforward. Our armed services are not involved in aggressive, as opposed to defensive, operations. That sort of defence, which is encapsulated in the new clause, is unnecessary. Incorporating it would be inconsistent with our obligations under the statute.

The defence encapsulated in the new clause is not recognised in our domestic law.

Mr. Howarth: I am hugely heartened by the Solicitor-General's confidence that British troops will not be involved in defensive action.

The Solicitor-General: No—the other way round.

Mr. Howarth: We would not be able to be involved in any aggressive action. I am sorry; I misunderstood the hon. and learned Gentleman.

The Solicitor-General: In conclusion, I assure the Committee that those defences are available in our domestic law, save for that one exception. Previous Governments also adopted our approach, and on that basis I ask the Opposition to withdraw the new clause.

Mr. Garnier: We had two purposes in initiating this debate. One was intentional, the other was not. The main intention was that we should hear the assurances that the Solicitor-General has given us, for which I am grateful. The other purpose, the unintentional one, was to demonstrate that I had not done my homework. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4

Reporting of consultation between the ICC and Secretary of State

    `The Secretary of State shall, following any consultation prior to any proposed warrant, or actual warrant, from the ICC, lay a report before the Foreign Affairs Select Committee of the House of Commons, or any ad hoc committee of that Committee, setting out in particular—

    (a) the nature of the proposed warrant;

    (b) the grounds for refusal to accept the warrant; and

    (c) any reasons given by the Secretary of State why he considers that a warrant should not be issued, or that the case has been dealt with and/or, that the case will be dealt with under United Kingdom jurisdiction.'.—[Mr. Garnier.]

Brought up, and read the First time.

Mr. Garnier: I beg to move that the clause be read a Second time.

The new clause allows me once again to take out of the Committee stable my hobby horse on the problem of trying, when debating legislation, to get some purchase on a treaty—which, of course, we cannot do. I hope that the Committee will take as given my concerns about that; perhaps they could read earlier copies of the Official Report.

Mr. Battle: We are well aware of them.

Mr. Garnier: I am glad to hear that the Minister is well aware of my concerns. I have a suspicion that he increasingly shares them.

The Opposition's worries about the issues lying behind the new clause were well explained by Lord Howell of Guildford in the Committee proceedings in the other place on 12 February, starting at column 115. I shall briefly paraphrase his arguments, and invite the Minister to respond a little more fully than did Lady Scotland of Asthal.

New clause 4 is self-explanatory. It allows a brief discussion on the issues that we have already discussed. It is a continuing concern of mine, as I have tediously mentioned, that we are debating these matters in a vacuum. The Government should be aware of the concerns of this legitimately elected Parliament that it can do nothing about how the Government exercise their prerogative powers. The new clause attempts to make some headway in redressing the balance between the powers of Government and of Parliament.

I have no doubt that it is much celebrated in the Labour party, but it is much regretted by the Opposition, that there has been a huge change in the balance of power between Parliament and the Executive during the past four years. Parliament has almost become a rubber stamp for the activities of the Prime Minister's official spokesman.

Mr. Tony Worthington (Clydebank and Milngavie): The hon. and learned Gentleman will have to improve his performance.

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