International Criminal Court Bill [Lords]

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

We have had a limited discussion about the power of the Executive and Parliament. The new clause champions the role of Parliament and gives it the opportunity to discuss any amendments to the Rome statute that might be made under article 121.

It is almost certain that the statute will be amended at some point. For example, we discussed earlier the possibility of the court's being used as the medium through which to police the international drugs trade. The Minister said that that was an interesting idea. It is not on the agenda at the moment, as the court is currently establishing itself as the forum for the most serious crimes—those listed in articles 5, 6, 7 and 8. However, we do not know how the court will develop; we all hope that it will become an important instrument for the control of crime.

Mr. Battle: I did not mean to suggest that the ICC per se should tackle the international drugs trade, but that some international forum should be charged with that challenge. It does not necessarily come within the ambit of the ICC. We might need to establish another institution to do it, and I am open to ideas. I would not want to give the impression that I had suggested that the ICC could move forward on that basis.

Mr. Blunt: Equally, however, the Minister did not say that the ICC could not move forward on that basis. I am not trying to imply that the Government have committed themselves to that end: I presume that they are considering all available options for policing problems such as the international drugs trade.

Everyone in the Committee wants the court to develop as an important and significant institution. To do that, it will have to work properly and politically responsibly. If it is to establish itself and become a long-term institution, it must have the ability to change its rules and procedures as it develops over time. Article 121 sets out the procedure for doing that.

Parliament's problem with any treaty is that the Government have the right not only to sign treaties, but to ratify them under the royal prerogative without reference to Parliament. That practice has been limited under the Ponsonby rule to allow Parliament the opportunity to discuss treaties. However, the briefing on the Ponsonby rule in the Library brief that accompanies the Bill makes it clear that:

    ``The Ponsonby Rule and associated practice are not in any way a derogation from the rule that the treaty-making power comes under the Royal Prerogative, since Parliament is not being asked to approve the treaties which are laid. It is merely being given an opportunity to discuss them, to interrogate the executive over its exercise of its treaty-making power.''

That is the formal position. However, if the Government were defeated on the Bill, I do not imagine that they would ratify the treaty. For example, if the Prime Minister were to go to Her Majesty on Tuesday to seek Dissolution of Parliament and Parliament were dissolved immediately, the Bill would be lost, because there would not be sufficient time for further necessary consideration of it. Whether a Conservative Government are elected or, by some appalling accident, a Labour Government are re-elected, no Government would ratify the treaty until they have put the Bill or one like it through Parliament.

That is the position de facto. However, it does not necessarily apply to amendments to the statute. Those can be made whether or not the United Kingdom is in favour of them—it does not have to be, because if they do not apply to the definition of crimes under articles 5, 6, 7 and 8, such amendments can be approvedby a seven-eighths majority of the states parties. That could lead to the majority of those who are affected by the statute being outvoted by countries representing a minority of those affected.

Mr. Battle: San Marino?

Mr. Blunt: We shall come back to San Marino later, when we discuss universal jurisdiction.

The simple purpose of my new clause is to allow Parliament to bind the Executive. If the institution works in the way it should, the legislation will apply for decades to come. When the Executive, whoever they are, agree amendments to the statute of Rome, they will have to come back to Parliament within six months to get the approval of both Houses.

We know how important the statute is, and the scope of the crimes that it covers. I have given one example of how the institution might develop, and the Minister has not denied that it might develop in that way. Although it is not the policy of this or any other Government that the ICC should develop in such a way, it has the potential to do so, if the states parties so agree. The changes to the statute would and could be fundamental to the way in which we police international crime in future. Although the United Kingdom Executive can currently veto changes effected under the definition of crimes, which is extremely important, they do not have a veto on how the court operates.

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The court's operation may be subject to changes that we do not like, but that may be imposed on the United Kingdom. Changes to the statute could be controversial in this country. It is proper that Parliament should now give itself the power to ensure that it formally approves changes to the statute of Rome. That is all that the new clause is designed to do. Its trigger would ensure that the Government had to obtain the approval of both Houses of Parliament within six months of the adoption of an amendment to the ICC statute. The new clause states that if they did not, they would have to

    ``give notice for withdrawal under Article 127''.

That would force the Executive to receive Parliament's approval for their actions in Parliament.

The new clause is a necessary provision, so the Committee should add it to the Bill. We do not know who the Executive will be next month, next decade or five decades from now, yet the institution that the Committee will in part be responsible for establishing will probably last that long. We should protect Parliament from future Executives. I hope that the Committee will accept the new clause.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): The new clause seems less modest than it appears at first, but I have a deal of sympathy with the spirit that informs it. It is not satisfactory that major changes can effectively be enacted by international organisations without the democratic bodies that are a constituent part of those organisations being fully informed.

The hon. Member for Reigate (Mr. Blunt) thinks it desirable—it is a consequence of his solution—that the British commitment to the International Criminal Court should cease if an amendment to its operation has not been approved by Parliament. I do not entirely agree. He has raised a conundrum and may be trying to change the constitution of the United Kingdom by a side wind. In the past, our courts have held that to be an unsuitable way in which to proceed. However, he has raised an issue of great importance—one to which Parliament ought to return in a wider context. The formulation of treaties and what flows from them follows Crown prerogative and has gone too long unchallenged by this Parliament. It has come under much closer scrutiny in the context of the European Union and we now have procedures that enable us, if we choose, to examine what is happening there. We could usefully extend that to other spheres in which we are internationally committed of our own volition to agreements that have long-lasting effects on and long-lasting consequences for the sovereignty of the state. I hope that in disassociating myself from the hon. Gentleman's request that the Committee accepts the new clause, he will not misinterpret my sympathy with what he is doing.

Mr. Blunt: I am grateful to the right hon. Gentleman for his principled support for the new clause. I have listened carefully to his arguments and I understand his objection to the hurdle of giving notice of withdrawal under article 127, which I included in the new clause to force the Government to act. That hurdle might make the new clause appear hostile to the ICC. If the right hon. Gentleman can suggest another form of leverage over the Executive that could be included in a new clause to force them to obtain the approval of both Houses, I would be happy to consider it and return to the idea on Report—hopefully, with his support.

Mr. Maclennan: That raises wider questions about the desirability of enacting the legislation and the difficulties that lie in the way. I am unsympathetic to the idea that in that instance alone we should examine ways and means of obstructing by unilateral decision the development of institutions in whose establishment we have participated. We must have some kind of collective decision-making process, which is provided for in the statute of Rome by the assembly and so forth. What is lacking is a procedure for referring the proposals and communicating the Government's attitude to them to Parliament for deliberation, which would not necessarily mean a decision by the legislature in opposition to the Executive.

Mr. Garnier: I do not want to take the right hon. Gentleman by surprise or to present him with words that he may not have examined recently, but I refer him to the comments of his noble Friend Lord Lester of Herne Hill, who during deliberations in the other place stated:

    ``I believe that there are limits to democratic accountability. In the field of European Union law, rightly we have very deep scrutiny—for example, in this House—because legislation which emanates from the European Union is often directly binding on this country without the need for Acts of Parliament. However I do not believe—nor do I consider that my party would believe—that we should go so far with democratic scrutiny as to say that, whether in relation to this or any other treaty, the executive branch cannot ratify unless any reservation or declaration has first been laid before each House by report and approval.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1296.]

I can easily see that there is a distinction between reservations and declarations, but there is a principle there that seems to lie across the right hon. Gentleman's comments.

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