Mr Crispin Blunt (Reigate, Conservative)

I beg to move amendment No. 38, in page 2, line 8, at end insert—

`unless he is satisfied that the person referred to is a citizen of the United Kingdom or the crime alleged was carried out on the territory of the United Kingdom.

(1A) If he is satisfied that the person referred to is a citizen of the United Kingdom or the crime alleged was carried out on the territory of the United Kingdom the Secretary of State will commence proceedings under Article 19 of the ICC Statute to challenge the jurisdiction of the ICC.

(1B) If the challenge to the ICC under subsection (1A) is unsuccessful—

(a) an enquiry shall be held by a joint committee of both Houses of Parliament as to why the ICC had satisfied itself that the United Kingdom had not properly discharged its obligations under Article 17, and if the Committee finds that the judgement of the ICC was in the judgement of the Committee unreasonable it shall request Her Majesty's Government to give notification of withdrawal under Article 127;

(b) he shall transmit the request and documents accompanying it to an appropriate judicial officer.'.

Mr Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following amendments: No. 39, in clause 5, page 4, line 10, at end insert—

`and

(c) that the person brought before the court is not a citizen of the United Kingdom'.

No. 40, in clause 5, page 4, line 42, at end insert—

`(10) If the competent court is satisfied that the person brought before the court is a citizen of the United Kingdom it shall adjourn the proceedings and notify the Secretary of State.

(11) On receipt of notification from the competent court that the warrant of the ICC refers to a citizen of the United Kingdom the Secretary of State will commence proceedings under Article 19 of ICC Statute to challenge the jurisdiction of the ICC.

(12) If the challenge to the ICC under subsection (11) is unsuccessful—

(a) an enquiry shall be held by a joint committee of both Houses of Parliament as to why the ICC had satisfied itself that the United Kingdom had not properly discharged its obligations under Article 17, and if the Committee finds that the judgement of the ICC was in the judgement of the Committee unreasonable it shall request Her Majesty's Government to give notification of withdrawal under Article 127;

(b) the competent court shall resume its proceedings and make a delivery order.''.'.

The purpose of the amendments is to to flag up potential problems with the practical operation of the statute and the International Criminal Court. I shall discuss in detail how they relate to those problems. I do not want to repeat my remarks later in our deliberations, but I think that it is appropriate to examine the statute and its potential consequences now.

The amendments are intended to emphasise a Government's duty towards the security of their country's citizens. They would apply if the ICC were to issue a warrant for the arrest of a British subject, or in connection with an offence that had taken place on British territory, where normal jurisdiction would properly belong to the United Kingdom. The amendments are designed to address situations where something has gone wrong with the system of complementarity as established under the statute.

In the normal course of events, a British citizen who commits such an offence is brought to justice by British courts. We are looking at a case in which the established system has failed and the ICC has issued a warrant for the arrest of a person in the United Kingdom. The amendments would make it the first duty of the Home Secretary to check whether that person was a British subject. If

``the person referred to is a citizen of the United Kingdom or the crime alleged was carried out on the territory of the United Kingdom'',

additional duties are imposed on the Home Secretary. He would have to appeal for jurisdiction under the statute and find out why the ICC had issued a warrant for a British subject's arrest in the UK, where we would normally have brought that person to trial ourselves. It would appear that, in such a case, the whole ICC system had gone wrong. The Home Secretary would have a duty under article 19 of the ICC statute to say that the person should properly be tried in the United Kingdom and to appeal for jurisdiction.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I am trying to follow the hon. Gentleman's argument. I have to inform him that we will have jurisdiction in such a case. There will be no necessity for a member of the Executive to appeal for jurisdiction because it will exist and persist in the United Kingdom, whether or not a person is prosecuted here. Jurisdiction is not dependent on whether there is a prosecution; it persists outwith that.

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman's intervention goes right to the heart of the issues addressed in the amendment. It is quite right that we should have jurisdiction. However, the only instances under which the ICC would issue a warrant for the arrest of a British subject in such circumstances, would be if the court felt that the case was admissible, under article 17 of the Rome statute. Article 17.1(a) states that the ICC can take jurisdiction when

``The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;''

There could be circumstances in which the ICC concludes that the British justice system is not willing to put a person on trial.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I agree with the hon. Gentleman in general terms, but the important point is that it is the failure to exercise jurisdiction, not the existence or otherwise of it, that causes the complementary jurisdiction of the ICC to kick in. What I sought to draw out from him was the reason why he was arguing that a member of our Executive would have to examine whether we had jurisdiction. The fact is that jurisdiction will exist; it is the exercising of it that is important. The one person who will know why jurisdiction has not been exercised in this country is the Home Secretary—he will not need to investigate to find that out.

Mr Crispin Blunt (Reigate, Conservative)

This is an important discussion. Let us imagine a case in which the ICC has issued a warrant for the arrest of a British subject. We may be put in the position where our country's judicial system is in dispute with the ICC because the ICC has come to a conclusion under article 17.1(a) and (b). The latter sub-paragraph refers to a case that:

``has been investigated by a State''—

the prosecuting authorities in Britain have investigated it—and

``the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;''

I will illustrate that situation with a case study. I have seen in print a prima facie case from a lawyer that shows that the bombing of a television station in Belgrade in the war over Kosovo amounted to a war crime because it was known that civilians—non-combatants—were inside and they died as a consequence of the deliberate action of the allied air force—I believe that it was the action of the American air force in that instance. Hon. Members will remember the debate at that time about whether it was appropriate to attack television stations. The line taken by the Government and NATO was that such a target was an organ of the Serbian state that was producing propaganda, and that was why it was attacked. However, it is arguable that it was an inappropriate target, and many people in this country and elsewhere in the world took that position. If the aircraft involved had been British, a case might have been brought against the British Prime Minister and the Executive. A complaint to the ICC could have been made by Serbia that the Prime Minister was guilty of a war crime and that the case should be investigated.

The expression on the face of the hon. Member for Ilford, South (Mr. Gapes) suggests that he finds risible the idea that the Prime Minister could go on trial. It might be risible in the United Kingdom, but if something were to go wrong in the relationship between the UK and the ICC and a warrant were to be issued, it might not be so risible.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

The hon. Gentleman talks about something going wrong in the relationship between the UK and the ICC. Is he saying that there is a certainty or a great likelihood of this country being so out of line with the higher tenets of international behaviour that the rest of the world would gang up against us to put our Prime Minister on trial for an alleged war crime? Other members of the international coalition were involved in the example he cites—the American pilots who flew the aircraft under the United States presidency and so on. What he says is simply absurd.

Mr Crispin Blunt (Reigate, Conservative)

I am trying to establish not that such a situation is likely, but that it is possible. It is the duty of Parliament and the Committee to examine the possible consequences of legislation. I will develop those arguments further later.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

Is it not the case that the prosecutor for the international tribunal for the former Yugoslavia has made it clear that she will not investigate the case that the hon. Gentleman has raised because she does not consider it to involve a breach of international law? That clearly illustrates that international prosecutors act responsibly, both in that case and more generally.

Mr Crispin Blunt (Reigate, Conservative)

I am grateful to the Solicitor-General for making my point. That international prosecutor decided that there was no case to be brought, but other lawyers believe that there is a case. The hon. and learned Gentleman cannot say that a prosecutor elected on a secret ballot by a majority of member states will never be the sort of person who might want to prosecute such a case.

Mr Edward Garnier (Harborough, Conservative)

I am interested in the Solicitor-General's intervention and I have two points to make. First, two transatlantic legal academics—I think that one was from the United States and the other was Canadian—issued a complaint about NATO's bombing of the television station. Secondly, the prosecutor, far from reaching a conclusion adverse to those complaints, has left the matter where it fell: she has not investigated the complaints to their conclusion. The issue is still live and has not been finally resolved. If the prosecutor has reached a final conclusion, that is news to me. Perhaps the Solicitor-General can provide enlightenment.

Mr Crispin Blunt (Reigate, Conservative)

I am grateful to my hon. and learned Friend for illustrating my point. The case is a recent one in which the United Kingdom was acting as part of a NATO coalition of states that were unified in their action against Yugoslavia. Yet, as he says, a complaint is resting on the table, and the fact that a prosecution has not been brought is dependent on the personality of the prosecutor. [Interruption.] I am relying on the words of the Solicitor-General.

Ms Oona King (Bethnal Green & Bow, Labour)

Does the hon. Gentleman accept that the logic of his argument is that we should withdraw from all our international obligations? Under the Bill, the ICC will have fewer powers of investigation and prosecution than the Yugoslavia tribunal had. As far as I can tell, the hon. Gentleman's argument takes us back to the 1949 conventions and beyond—back to the war and to everything that we have been trying to avoid.

Mr Crispin Blunt (Reigate, Conservative)

That is not the logic of my argument. The duty of the Committee is not only to examine what we hope the ICC will achieve and how it should behave as a responsible international institution; we must also consider what might happen that would be deleterious to the interests of the United Kingdom. The sole purpose of the amendment is not to change our responsibilities or duties under the statute, but to put up flag that says that if the ICC develops in a way that we do not expect, which it might do, we have a responsibility to say that that is unacceptable to the United Kingdom.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

We are coming to an interesting point. I want to be clear about what the hon. Gentleman is saying. He seems to be saying that he has a problem with the structure of the court. Is he against the court because he is against the principle of an international court, or is he against it because a foreign judge will be taking the decisions?

Mr Crispin Blunt (Reigate, Conservative)

That is a risible intervention. The question is absurd because I am not against the principle of an international criminal court. I am thoroughly in favour of that principle. The United Kingdom has a proud record of international jurisdiction, but we must consider what happens when we hand over jurisdiction to international tribunals—we must be aware of the possible consequences.

I am in favour of the ICC: if it works as we all want it to—if it brings to justice those who are guilty of crimes under articles 5, 6, 7 and 8—it will be a successful and important institution. However, there are a number of flaws inherent in the way in which it has been put together as a statute. That has resulted in the fact that major countries—the biggest countries in the world—are unlikely to be party to it. It will be an immensely important institution if it works, but we saw what happened to the League of Nations when the United States was not party to it. Such matters should have been addressed when the statute was negotiated to make it more acceptable to larger states. Relative power has been given, through the institution, to the smaller states.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

We shall discuss the position of the prosecutor later, but now I want to set the record straight. The prosecutor decided that there was no case and that no investigation would be opened. The prosecutor made it clear that NATO was acting in conformity with international law. I can assure the Committee that that was the case because I was involved as a Law Officer. Many people raise complaints with domestic prosecutors such as the Crown Prosecution Service: those complaints are investigated in an objective way and are either proceeded with or, as they were in that case, dismissed.

Mr Crispin Blunt (Reigate, Conservative)

I fully accept the Solicitor-General's remarks about the quality of my example of the complaint against the Prime Minister about the bombing of the television station. I am happy to accept the Government's argument on that issue. I do not want the Prime Minister to be arraigned in front of the war crimes tribunal in respect of former Yugoslavia on a charge arising from such action. In any event, the President of the United States would probably be the one to face such a charge, because American aircraft undertook that mission. The Solicitor-General made the point that the prosecutor saw that there was no case in respect of the bombing of the television station. The United Kingdom was acting as part of a NATO coalition in that action.

However, what about the bombing of Baghdad and Iraq by British and American air forces that has been going on consistently to enforce the no-fly zone? That operation is much more controversial in international terms than the action that we took against Serbia in respect of Kosovo. In much of the Arab world, there is now sympathy for Iraq about those operations. Because of the continuing operations of the Royal Air Force and the United States air force, the balance of opinion has changed in favour of someone as frightful as Saddam Hussein. One has only to recognise that to understand that if something were to go wrong with an RAF operation—if for example, an attempt to take out an air defence installation ended up taking out a children's home in Baghdad—a complaint would be made, were we party to the Rome statute. Such operations are much more controversial in terms of international law than the war over Kosovo was.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

Is the hon. Gentleman arguing that we should not join the ICC? If not, is he saying that certain conflicts and certain countries should not be covered by it? I am not sure where his argument is leading. He claims that he is in favour of the ICC, but all his arguments seem to be against it.

Mr Crispin Blunt (Reigate, Conservative)

I am anxious to make the point to the Committee that I am in favour of the ICC. Let us be very clear about that principle. What we have to judge when deciding whether to accept the Bill ratifying the treaty is whether the court is going to work in the way that we intend. I am trying to illustrate through a case study how the ICC could work against the UK's interests, and how we, our leaders and those who carry out military operations on our behalf could end up on the wrong end of the ICC, with warrants for arrest issued and investigations undertaken by prosecutors appointed under the terms of the Rome statute.

We must consider such cases now, before we sign up to the statute. We must know what we are letting ourselves in for. That is the purpose of the amendments. They do not serve in any way to undermine the treaty.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I accept in good faith that the hon. Gentleman is in favour of an ICC. However, it appears that he is not in favour of an independent prosecutor. The thrust of the amendments appears to be that the UK should be allowed in all circumstances to second-guess every decision made by a prosecutor. Will he make it clear that we would be prepared to allow that qualification to everybody who has signed the convention? Is he going to argue for the destruction of the whole convention by allowing every single country to second-guess every decision made by the prosecutor, in the way that he want us to be able to do?

Mr Crispin Blunt (Reigate, Conservative)

That is not my purpose, but I am grateful to the hon. Gentleman—he is making my point. The amendments would apply only if the ICC issued a warrant for the arrest of, for example, our Prime Minister or our RAF commander in Saudi Arabia, and we found it absurd that they should be put on trial. The amendments would then impose a duty on the Home Secretary to say, ``Hang on, we should have jurisdiction over this''—to appeal for jurisdiction under article 19—and to say that we had investigated the matter and did not consider that it should be brought to trial because it did not amount to a war crime.

Any such dispute over jurisdiction is, in effect, a dispute over the admissibility of the case before the ICC. The court would be claiming that the case was admissible under article 17 because we, the UK, had been

``unwilling or unable genuinely to carry out the investigation or prosecution''

of a British citizen. The hon. Gentleman will see that article 17.1(a) and (b) refers to us being in such a position. The amendment states that if that happened, the first thing that the Home Secretary would do is to appeal by saying that it should be our case and not the ICC's. If the United Kingdom had been unaware of the case, the amendment says that it should now take over jurisdiction of it. The hon. Gentleman says that we would have that jurisdiction anyway, but I am concerned about circumstances where there is a dispute. The ICC might think that we were protecting a British citizen by not being prepared to genuinely put him on trial and investigate the case. I am sure that if the British Prime Minister went on trial before a British jury for what happened to the Serbian television station, he would not be convicted. I am certain that that case would not even go to trial. I am trying to illustrate circumstances where such situations might arise. First, there would be an appeal for jurisdiction.

Mr David Lammy (Tottenham, Labour)

The hon. Gentleman uses the words ``unwilling or unable'', but amendment No. 38 states that

``an enquiry shall be held by a joint committee of both Houses of Parliament''.

That suggests an instinctive suspicion of the ICC. The amendment does not use the language of ``unwilling or unable''. Will the hon. Gentleman clarify that point?

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman leads me on to the next part of the amendment. The Home Secretary might appeal for jurisdiction, lose that appeal and the ICC could then insist on its right to try a British subject. The ICC would have judged that the United Kingdom was ``unwilling or unable genuinely'' to put a person on trial. We could not complain about that judgment, which would be valid, and I do not seek to undermine the rights of the ICC; we would be bound by the terms of the statute if we ratify it. However, if that happens, the United Kingdom, as a signatory to a statute that includes the principle of complementarity, would operate the system of enforcing its laws, and may find itself in dispute with the ICC over why that court had seen it necessary to bring that British subject to justice over and above the prosecuting authorities of the United Kingdom.

Mr David Lammy (Tottenham, Labour)

With respect, nothing in the amendment says ``unable or unwilling''. The amendment clearly states that we should challenge the jurisdiction of the ICC.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

In all circumstances.

Mr David Lammy (Tottenham, Labour)

Yes, in all circumstances. Where are the words ``unwilling or unable''?

Mr Crispin Blunt (Reigate, Conservative)

That is the point. What is the first duty of the United Kingdom Government? It is to the security of its citizens. The United Kingdom will have come to the conclusion that that British subject should not have been put on trial, or will have acquitted him after putting him on trial, whereas the ICC will have reached the conclusion that that trial was a farce and was designed to protect that citizen, or that he should have been put on trial in the first place.

Mr Tony Worthington (Clydebank & Milngavie, Labour)

It seems to me that this is a wrecking amendment because there could not be an international treaty that gave Britain rights of jurisdiction that were not given to other countries. If one is willing to allow Britain to act in the way that the hon. Gentleman suggests, one has to allow the same rights to the Government of Rwanda, to Milosevic, to Saddam Hussein and so on. Could the hon. Gentleman confirm that the amendment is not a probing one, but one that he wishes to press, which would utterly undermine any ICC?

Mr Crispin Blunt (Reigate, Conservative)

That is wholly incorrect, and reflects a complete misappreciation of the amendment. The hon. Gentleman is quite right that it would be a wrecking amendment if it were designed to change the terms of the statute or of the international agreement that the UK has made. However, it does nothing of the kind. It would apply only if a warrant came from the ICC to arrest a British subject in the UK who, under the statute's principles of complementarity, should have been tried in the UK for the crimes for which the ICC had indicted him, but had not been, and the ICC had concluded, under article 17, that it should hear the case because the UK was

``unwilling or unable genuinely to carry out the investigation or prosecution''.

The Home Secretary would then have a duty to say that there must be an appeal for jurisdiction. [Interruption.] That is all that the amendment does. Amendment No. 40 says that

``If the challenge to the ICC under subsection (11) is unsuccessful'',

Parliament needs to establish what went wrong.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

I know that I am speaking a lot, but the matter is very interesting. What would happen while the individual against whom the ICC wished to take action was in this country? Does the hon. Gentleman assume that the person would sit quietly and wait for the outcome of the Committee of Inquiry, or would they perhaps get on a plane to somewhere else and try to escape jurisdiction?

Mr Crispin Blunt (Reigate, Conservative)

It would be for the Home Secretary to decide whether such a person was going to abscond from justice. That is a judgment that the authorities would have to make, on the basis of the individual case. The person would be unlikely to abscond from the UK if the UK were saying that they should not be put on trial before the ICC because the UK had investigated the matter and did not think that a prosecution should be brought, or because the person had been tried and acquitted here. Those are the circumstances that my amendment anticipates.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

The hon. Gentleman has been very generous at giving way in this interesting debate. We can debate the practicalities, but the principles are more interesting. In its totality, the amendment says that if the ICC disagrees with our decision not to exercise jurisdiction, and seeks to exercise jurisdiction itself, we must automatically challenge that, in certain circumstances, for our citizens. It says that if we lose that argument, we must have a parliamentary inquiry. If that inquiry supports our chauvinistic view of the position, we must withdraw under article 127.

The test of the intellectual coherence of that argument, and of the hon. Gentleman's commitment to the international convention and to supporting the ICC, is whether he would give that right to every other signatory. If we are to have it, then everybody else must have it. That would mean that every time another Government who have signed up disagree with the ICC, they must test it to destruction and then withdraw. The amendment destroys the whole convention. It is a wrecking amendment, designed to wreck not only the Bill but the treaty.

Mr Crispin Blunt (Reigate, Conservative)

It is absolutely not a wrecking amendment. I implore the hon. Gentleman to look at its language. It is simply a flag. Every other country is entitled to take the same position, because every other country has a sovereign Government. Their Governments and Parliaments can take whatever action they see fit. The amendment would simply mean that if we have explored all avenues for appeal and jurisdiction under the ICC and article 19 and we have lost, the establishment by Parliament of a Committee of Inquiry would be triggered to discover how that position has come about.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

A couple of minutes ago, the hon. Gentleman commented—if I heard him rightly—that it is open to all countries to take such a course of action, and that he would expect them all to pass a similar amendment if they were even considering signing up to the ICC. Can he not understand that that would massively undermine the whole principle of building an international institution—which is what we are about here—because it would give everyone the ultimate opt-out clause, and no one would sign it?

Mr Crispin Blunt (Reigate, Conservative)

No, it does nothing of the kind. The amendment applies only if we find ourselves, as a country, in dispute with the ICC. We are responsible citizens and a responsible Parliament, of a country with a proud record of its role in the world and its international duties. If the UK—a permanent member of the United Nations Security Council—were to be in dispute with an organisation that was seeking to bring to justice subjects whom we were not prepared, under the terms of articles 5, 6, 7 and 8, to bring to justice in this country, there would be a problem. In such circumstances, the amendment would simply ask Parliament to establish a Committee of Inquiry to investigate what has gone wrong. Why is the UK in dispute with the ICC? Why has the ICC decided that it must bring a British subject to justice because the British authorities are not prepared to do so?

There could be two explanations for that, but the first is that the UK might be acting unreasonably. For example, its Government and prosecuting authorities might be unprepared to bring to justice the Prime Minister or the commander of British troops on an overseas operation accused of war crimes. The Committee of Inquiry of both Houses of Parliament would have to consider whether that was, to use the term that the hon. Member for Kilmarnock and Loudoun (Mr. Browne) mentioned, a chauvinistic standpoint. Its only power would be to come to a conclusion about whether the ICC's behaviour was reasonable. It is a test of reasonableness. If, in its judgment, the ICC had been unreasonable, a Joint Committee of both Houses would ``request'' the Government—not injunct the Government—

``to give notification of withdrawal under Article 127''.

If the amendment is not passed, and the ICC arraigns a British subject for trial against the UK's wishes, there will be pandemonium. The chauvinistic debate in the media will be considerable. The amendment provides a mechanism to allow us, in such a situation, to say that we will not denounce the treaty, but have a Committee of Inquiry, and take time to consider in Parliament whether the ICC has been reasonable.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

Will the hon. Gentleman explain what the purpose and effectiveness of an international criminal court would be if all national jurisdictions could opt out, given that his amendment is of a general nature and does not refer to any specific activity? What would be the purpose of such a court and how could it function effectively?

Mr Crispin Blunt (Reigate, Conservative)

Everyone can opt out. Has the hon. Lady read article 127? Under that article, every state can opt out of the ICC's jurisdiction if they want to by giving a year's notice. The amendment would allow Parliament to establish a test of reasonableness of behaviour on the part of the United Kingdom prosecuting authorities and the ICC, and to come to a conclusion about whether the ICC is operating in the way that we hope it will. My concern is that, given the way in which the statute has been negotiated, there is at least a possibility that the court will not behave in the way that we expect.

Mr David Lammy (Tottenham, Labour)

Is the hon. Gentleman not confident about this country and its place among its international partners? What is wrong with partnership, consensus and achieving co-operation regarding its decisions being at the heart of the ICC? His argument is like that of the recalcitrant child who does not like the decisions made by grown-ups and decides to opt out. The example of opting out of the whole process is quite different from individual countries, as he says, staking a flag in the ground. He talks about responsible Government, but his argument would allow for irresponsible Government.

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman betrayed several misunderstandings during that intervention. If the ICC works by partnership and consensus, there will be no problem with how it operates and develops. In my judgment, it is essential that it operates and develops through that approach. However, it must operate to a standard of reasonableness that we as Members of the Parliament of the United Kingdom accept. The UK is a major player on the international scene and one of only two permanent members of the Security Council that appear likely to ratify the statute. If the statute does not pass a standard of reasonableness for us, it will not be operating by partnership and consensus; it will be operating in a different way, the potential for which arises from the way in which it has been established—for example, the statute permits a secret ballot for the prosecutor and judges. Those concerns underlie the amendment.

The hon. Gentleman must be clear: consensus means that everyone agrees, but the statute makes it clear that not everyone has to agree. Far from consensus being achieved, it is possible to envisage the will of 12.9 million people being imposed against the wishes of 2 billion. That second figure includes only the signatory countries, and not India and China. We are in a situation in which a set of Governments, by a ratio of 150 to one—in terms of the populations that they represent—could impose their will through the election of personalities who would make the court work in a way that we might find unreasonable.

There is potential for abuse, and to pass the amendment would be to say simply that we have recognised the need to deal with that. If the system is abused and we find ourselves on the wrong end of behaviour by the ICC that, in the judgment of Parliament or a Committee of Parliament, is unreasonable, that Committee would request the Government to begin the process of withdrawal under article 127. I am sure that hon. Members agree that, if the institution were to behave unreasonably, we would not want to be part of it.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

I am still not sure whether, despite all the assurances, this is not an argument against ratification. To follow the argument about countries with populations of 1 billion presumably means that, as long as China and India are not signed up, we should not go ahead with the whole thing because it would be undemocratic in global terms. Is the hon. Gentleman proposing that we should hold a referendum among the whole world's population about whether we should go ahead? We live in a world of nation states with sovereign Governments who have equal status in international law. It seems absurd to follow an argument such as his.

Mr Crispin Blunt (Reigate, Conservative)

Why do we have qualified majority voting in the European Union? Why do the five countries that are permanent members of the Security Council have a veto over its resolutions? It is because when reality and the actual exercise of responsibility start abutting such issues, there must be a balancing weight given to the countries that represent a large part of the world's resources and, usually, large populations.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

Is the hon. Gentleman suggesting that India and China should each have 20 times as much influence in the ICC as the UK?

Mr Crispin Blunt (Reigate, Conservative)

There is a perfectly respectable argument for that, although I am not suggesting it. However, I do argue that in selecting the people who are going to make the institution work, San Marino, with a population of 23,000, should not carry the same weight as China, which has a population of more than 1 billion. The logic of that should be obvious. The EU has found a way of getting round the problem through qualified majority voting. It is not perfect and does not exactly reflect population size, but it has been agreed to as a working means of balancing the interests of large and small countries.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Interesting though the argument about respective population sizes is, they are not the measure against which the amendment should be tested. It should be tested on whether it stands up in principle. An existing court exercises jurisdiction in the geographical area from which the hon. Gentleman chose to take an example: the international criminal tribunal for former Yugoslavia. Its jurisdiction over our subjects, granted to it by a previous Conservative Government, is not complementary, but supersedes. In the unlikely event that the hon. Gentleman's party is returned to government, would it be his intention to move a similar amendment to the provisions that relate to that tribunal, to allow us, when we disagree with the decisions of its prosecutor, to withdraw from it, or subject its decisions to parliamentary scrutiny? If not, his argument is devoid of principle.

Mr Crispin Blunt (Reigate, Conservative)

I do not know what statutory opportunities there are for the United Kingdom to withdraw from the international tribunal on Yugoslavia.

There is a misunderstanding among some Government Members about what the amendment would do. If we found ourselves in dispute with the ICC and a Committee of Inquiry requested that the Government begin the procedure for withdrawal under article 127, we would still be bound to hand over a British subject to face justice before the ICC because we were bound by the statute's terms. The amendment would not wreck the statute or remove our obligation under the statute to surrender that British subject, whoever he might be—a a commander of British forces overseas, the Secretary of State for Defence or the Prime Minister .

All the amendment says is that in one year's time the Government could act on the recommendation of a Joint Committee of Parliament—and we know how often the Government act on the recommendations of Joint Select Committees of the House. Whether the Government exercise their prerogative and decide to initiate the process of withdrawal by giving notice under article 127 is another question, but we would still be bound by the terms of the statute in respect of the crime that was being investigated by the ICC.

The hon. Member for Kilmarnock and Loudoun will see that that is recognised in paragraph (b) of the amendment, which states that the Secretary of State

``shall transmit the request and documents accompanying it to an appropriate judicial officer.''

The amendment therefore simply asks the Home Secretary to say to the ICC, ``You explore under article 19 the opportunity to exercise British jurisdiction and if you lose, Parliament will set up a Joint Committee of Inquiry of both Houses of Parliament to decide why that has happened. Having lost, you must hand that British subject over.'' We would remain bound by the ICC. The amendment is quite specific; it is not a wrecking amendment, but a flag to say that if things go wrong a test of reasonableness will be conducted by a Joint Committee of Inquiry.

Mr Stephen Day (Cheadle, Conservative)

My hon. Friend should be congratulated on daring to initiate a real debate. It is a strange experience for Government Members and rarely happens in the House these days.

The Minister said that other countries might follow the example of Britain if my hon. Friend's amendment were accepted, and that that would wreck the practical workings of the ICC. However, as well as allowing debate, my hon. Friend is introducing a dose of reality that goes beyond the pure moral question. Countries such as France have introduced such amendments and sought exemption for their forces to provide the sort of protection that my hon. Friend is asking the Committee to consider for our forces.

Mr Crispin Blunt (Reigate, Conservative)

That is true, but in the French case protection is only for seven years because that is what is allowed under the Rome statute. I understand that amendments will be tabled that would give our armed forces the protection that the French have given to theirs, but it would last for only seven years. If it is successful, we hope that the ICC will be for ever.

The problem is that China and India have not signed the treaty; given the way in which the Americans are conducting the debate, there is not a cat in hell's chance of the Senate ratifying it; and given the nature of Russia's operations in Chechnya, I would be surprised if it came anywhere near to ratifying it. Four of the largest and most important countries in the world, representing almost half the world's population, will not be part of the treaty. It is a tragedy for the ICC that half the world's population will not be bound by their Governments to that immensely important institution.

The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said that this was the most important Bill that he had come across in 35 years in the House of Commons, and we can see the attention that he is giving to the Committee's proceedings. It is disgraceful that there are no Liberal Democrat Members here to debate this important Bill.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I hope that the right hon. Gentleman is not unwell.

Mr Crispin Blunt (Reigate, Conservative)

So do I, but I do not think that he is, because I saw him yesterday—you will recall, Mr. Cook, that we both dined in the same place as him yesterday. If the right hon. Gentleman is unwell, where is the hon. Member for Winchester (Mr. Oaten)?

The point at issue is that the reasons why those large countries are unlikely to be parties to the treaty are the reasons why we—as a big country, with 60 million people, and as a permanent member of the Security Council—need to flag up our concern in the way that my amendment proposes.

Mr Tony Worthington (Clydebank & Milngavie, Labour)

The amendment says nothing about big or small countries. I am concerned with what is there, and what is there is the proposition that, if there is some disagreement with the ICC, the matter should go to a Joint Committee of both Houses. What is the procedure to be? Would the independent prosecutor lead for the prosecution and the Government for the defence of, for example, a British commander accused of an atrocity? How would the members of the Joint Committee be chosen? Would there be the usual Government majority?

Mr Crispin Blunt (Reigate, Conservative)

I am sure that membership of the Joint Committee would be chosen according to the rules of the House. All that the inquiry would be invited to do is to come to a conclusion on whether the actions of the ICC are reasonable in taking to itself the jurisdiction of the United Kingdom, in violation of the principle of complementarity, when the United Kingdom is not prepared to put its own subjects on trial for serious crimes. That would be the only test for the Committee. How the Joint Committee should organise itself and conduct that inquiry should properly be a matter for the Committee at the time. We could not anticipate how it would do that. The principles governing Joint Committees of both Houses of Parliament are well established, as are the processes of selection.

The amendment would simply place a duty on both Houses to set up that Committee, which would conduct that test and come to a conclusion on reasonableness. That Committee would make a recommendation to the Government and it would then be up to the Government to decide what they did in answer to that request. The purpose of the amendment is simply to say that, if the United Kingdom is in dispute with the ICC, there should be some mechanism for testing the reasonableness of the ICC's position.

Let me explain why I believe that the amendment is necessary. It sits with the way in which the statute has been drafted and how it could work—not how I hope that it will work, or how I expect it to work—

Mr Des Browne (Kilmarnock & Loudoun, Labour)

We are coming to the Johnny Foreigner element now.

Mr Crispin Blunt (Reigate, Conservative)

That sedentary intervention is unworthy. It is important that the ICC works. The United Kingdom has a proud record in international jurisdiction, going right back through history—on slavery and on piracy, and, under the previous Government, on war crimes. Such remarks are inappropriate.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

What underlies the hon. Gentleman's argument, and undermines his commitment to the ICC, is his view that, if someone is handed over to the ICC, it is as if they are being handed over to some sort of rogue body, but that body will be governed by international law. I suspect that what lies behind his remarks is a lack of faith in the principle of the ICC. He does not believe that the ICC can get up and running, and do a good job.

Mr Crispin Blunt (Reigate, Conservative)

That is not true. I expect that body to work in the way that the signatories intended. However, it is the duty of this Parliament, at this stage, before we pass the Bill, to make clear what will happen if the ICC does not work in the way that is intended.

We are in the happy position of having someone—Lord Renton in another place—who was part of the team that negotiated the 1951 convention that led to the European Court of Human Rights. Fifty years on, when debating the Armed Forces Discipline Act 2000, he made it quite clear that he, as one of the negotiators of that agreement, had never intended that it should apply to the armed forces of the United Kingdom. However, as a result of that Act and of the European court, we shall be forced to change the way that our courts martial work in administering discipline to our armed forces. No one has ever convincingly made the case to me that our military discipline system is anything other than just. Having seen it in operation, I can assure hon. Members that it is just, but we have been forced to change it because of an agreement made 50 years ago.

We hope that the ICC will be up and running, and will be successful for far more than 50 years. As the Bill is drafted, the ICC will be the main basis of international law for crimes under articles 5, 6, 7 and 8, but, as the decades go on, it could become a body with much wider powers.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I am trying to understand why the hon. Gentleman is making this point. Surely it is not part of his argument that the ICC and its jurisdiction should be set in stone. Does he not hope and expect that we shall, for the first time, through the court, develop a truly international jurisdiction, which will be independent of political decision makers? That seems to be the thread running through his arguments about the amendment. He wants a truly independent court, and a court that will evolve its own jurisdiction and jurisprudence. It will be different in 50 years, and if it is not, it will not have been a success.

Mr Crispin Blunt (Reigate, Conservative)

I could not agree more with the hon. Gentleman. Over time, the court will have opportunities to extend the range of crimes that it considers. For example, international drug smuggling—a trade that causes appalling damage to societies all over the world—is not one of the offences covered by articles 5 to 8. There is a strong argument that that trade should be policed on an international scale. I am sure that the Minister will have been negotiating with Governments agreements to allow Customs and Excise to co-operate with their authorities, to enable it to get a handle on the international drugs trade and to find out where the stuff is coming from so that we can interdict it within our own jurisdiction. If people can be brought to justice in front of an international court, it makes it easier to deal with them.

I am sure that whether such things should be brought within the remit of the court is a debate that will go on within the institutions of the court and the Assembly of States Parties as the decades unfold and as the nature of international crime changes.

The institution is important because it will grow, just as the European Court of Human Rights has grown into areas where none of us expected it to operate. It is therefore all the more important that it works in a responsible way. The court will establish its own way of working. All institutions, as they grow, attempt to accrete available areas of influence, and the world is the ICC's oyster. If it is to be successful, which is important to all of us, it must be developed in a responsible fashion.

I am sure that every hon. Member here has read the statute in detail. My first point focuses on the importance of personalities to the functioning of the court. The prosecutor will be its most important personality. He will be elected by secret ballot by a majority of the members of the state parties, which means that a prosecutor with a certain personality and a certain style of prosecution could be selected by the representatives of 12.9 million people in the teeth of opposition from the representatives of 2 billion people. That is the position in which the statute places us.

If that does not raise a potential problem with that situation, why did the Foreign Secretary, when making his case for the Bill on Second Reading, trumpet the United Kingdom's achievement in establishing the pre-trial chamber in the operation of the court? The reason that he gave for the importance of the pre-trial chamber being inserted in the statute—negotiated by Sir Franklin Berman, the legal adviser at the Foreign Office—was that it places some control over the prosecutor. When victims or states make complaints about actions of individuals or other states who are accused of crimes under the statute, the pre-trial chamber can form its own conclusion about whether the investigation should continue.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Before we come to the role of the pre-trial chamber in relation to the prosecutor, can we revisit the election of the prosecutor? The statute clearly says, in article 42.3:

``The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.''

Does the hon. Gentleman want to add to that and say what other characteristics he would expect in a prosecutor, or is the job description that is part of the statute good enough for a prosecutor of the ICC?

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman makes it clear that the statute includes the prosecutor's job description. To be elected to Parliament, we should all be people of high moral character, and I am sure that everyone on the Committee is. However, we are all elected by secret ballot, as the prosecutor will be. We do not actually have any control over it. The United Kingdom, a nation of nearly 60 million people, will carry the same weight in deciding who the prosecutor will be as—to take the most extreme case—the state of San Marino, which has a population of 23,000.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

It has gone down—it was 28,000 before.

Mr Crispin Blunt (Reigate, Conservative)

Has it? I shall check my notes. The Library says that the population of San Marino is, in fact, 27,000. I think that that is the smallest state of those that are signatory to the treaty, although we might check the Marshall Islands.

However, the point is that a nation of 1 billion people has the same influence as a very small nation and, because the prosecutor is elected by a secret majority ballot, the nature and personality of the prosecutor chosen will be extremely unpredictable.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

Is the hon. Gentleman saying that judges and prosecutors operate in the interests of their own Government? For example, did Judge Goldstone, in the tribunal for the former Yugoslavia, operate on behalf of South Africa? Such suggestions impugn the integrity of some highly respected international lawyers.

Mr Crispin Blunt (Reigate, Conservative)

I am saying nothing of the sort and I wish that the hon. Gentleman would not extend my arguments to the point of absurdity. He knows perfectly well that that was not my point. My question is, why did the state of Israel—this example may be of particular interest to the hon. Member for Ilford, South, who is a leading member of the Labour Friends of Israel—find it necessary to make its declaration when signing the statute? It is because Israel has been on the receiving end of endless motions from the United National General Assembly that are extremely critical of the conduct of that state. I am sure that the hon. Gentleman and other hon. Members who are supporters of Israel have found that those motions have not represented a realistic appreciation of its position. The institution that will be established under the statute will work in the same way that resolutions are made in the UN General Assembly, not in the way that security policy is decided by the UN Security Council, whose decisions are subject to the veto of its permanent members.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

The way in which the prosecutor and deputy prosecutor are elected is not the whole story. The office of prosecutor is addressed in article 42, paragraph 5 of which states:

``Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence.''

Paragraph 7 states:

``Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.''

Paragraph 8 states:

``Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber''

and continues in sub-paragraph (a):

``The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article''.

If the hon. Gentleman wishes to argue that the provisions of the statute create a situation in which we could or were likely to elect the wrong person to be prosecutor or deputy prosecutor, he must read the whole article and address his arguments to the totality of it, not only to the way in which prosecutors are picked.

Mr Crispin Blunt (Reigate, Conservative)

I shall address my arguments to the totality of it. The people who take the decision on whether the prosecutor is behaving in a way that someone has had cause to appeal against—as anticipated in the statute—are those in the appeals chamber.

The prosecutor will probably be someone with a record on human rights or war crimes legislation who has taken a forward position in trying to bring criminals to justice. Such a person will attract most support from the members of the Assembly of States Parties.

States with limited diplomatic resources will be unable to come to the same weighty conclusions as can the Foreign Offices of large countries, which have the benefit of substantial diplomatic services and are able properly to run the rule over potential candidates. Nations of 30,000 or even 1 million people do not have the necessary resources to do that. They will rely as much on press coverage as anything else to judge people's reputations. They might take a leaf from the big countries' books, but there can be no guarantee of that. The hon. Member for Kilmarnock and Loudoun quotes the job description from article 42.3, but we must remember that the prosecutor appoints the deputy prosecutors: the whole prosecution office will follow the characteristics of the prosecutor.

Mr. Gerald Howarth (Aldershot) rose—

Mr Frank Cook (Stockton North, Labour)

Order. I would be failing in my responsibilities as Chairman if I did not remind hon. Members that the normal standards of behaviour in Committee require the prior approval of the Chair before divesting oneself of one's upper garments. However, as I am anxious to ensure that we are able to concentrate without any distraction on the line by line scrutiny on which we have embarked, I am prepared to allow all male Members to divest themselves of their upper garment in this and future sittings, on the condition that we recognise that that is not a relaxation of the normal standards of behaviour.

Mr Gerald Howarth (Aldershot, Conservative)

We in Aldershot—the home of the British Army—which I represent, apply very high standards, Mr. Cook. You will note that my tie is done up very firmly and that my top button is done up. I hope that I am suitably dressed for your Committee. I speak, of course, as a commissioned officer in the Royal Air Force Volunteer Reserve—

Mr Frank Cook (Stockton North, Labour)

Order. I hope that that little monologue was not meant to imply criticism of the Chair's admonishment. Please proceed.

Mr Gerald Howarth (Aldershot, Conservative)

My remarks were no more an admonishment of you, Mr. Cook, than yours were of me. I do not seek to challenge the Chair, but I have always made a point of upholding the standards of the House and dressing appropriately. You will be aware, however, that it is reasonably warm in here, and I thought that you had made the position about dress clear in our opening sitting.

I am grateful to my hon. Friend the Member for Reigate (Mr. Blunt) for giving way. He has drawn attention to the great difficulties that attach to the appointment of the prosecutor. Does he agree that that the matter will probably give rise to the same sort of lobbying that has taken place surrounding the international Olympic games? I do not suggest that the ICC is on a par with the Olympics, but the structure is similar, in that many nations are involved. Real powers will reside in the prosecutor and it is likely that there will be lobbying to establish the most popular choice. There is currently intense lobbying over the president of the European central bank.

Mr Crispin Blunt (Reigate, Conservative)

My hon. Friend is right. Anyone who has taken part in, or been close to, negotiations about international posts knows that much trading is done. Country A will approach country B and say, ``If you support our candidate for such and such an international position, we will support your candidate for another.'' That is how the system will work. In this instance, the votes are to be given nation by nation in an unqualified way—that is done for a vast range of international positions—which gives small countries significant ability to advance their own candidates. The problem with that is that, because a nation of 60 million people can reasonably be expected to produce a large number of highly capable jurists, all of them will be in the same pot supported by one vote and allowed only one place. Since there are to be 18 judges, that is probably not a problem, given the scope of the ICC. However, it also means that the smaller countries will be over-represented. It is therefore probable that the ICC will not have judges of the quality that would be possible if there were a free choice from a pool of the entire world population.

Mr Mark Hendrick (Preston, Labour)

The hon. Gentleman talks about protecting the interests of the United Kingdom. To follow through his argument about population, let us suppose, for argument's sake, that China, Russia, India and the United States participate on a weighted basis, as he suggests. Would he be happier—given his scenario of almost political interference in the selection of the prosecutor and considering that the UK has a population of only 60 million, compared with the billions of people in those other countries? That is the logical consequence of the scenario that he describes.

Mr Crispin Blunt (Reigate, Conservative)

I do not seek to change the way in which the statute is formulated. What I seek to do through the amendment is to point out potential consequences of the way in which the statute is formulated. That is quite different. My point, which is central to the discussion of the statute, is that, because of the way in which the institution is going to work and the way in which the personalities will be selected, the major countries will be making a significant sacrifice of influence relative to the smaller countries. The United Kingdom will have the same weight as smaller countries and, in the case of China or India, the sacrifice will be magnified 20-fold in terms of their population. In the case of the United States, in terms of economic weight and the disproportionate role that it takes in enforcing global security and securing the defence of freedom within the international system, it will be magnified even more.

Mr Mark Hendrick (Preston, Labour)

Let us say, for argument's sake, that we accept the hon. Gentleman's argument. He is not happy with what is proposed, but let us follow through his arguments. In the light of the UK's interests, does he think that there is a better alternative to what is on the table—that it would be better if Russia, China, India and the United States were to participate on a weighted basis?

Mr Crispin Blunt (Reigate, Conservative)

That is not what I said. I said that we cannot unpick the statute. We certainly cannot do so by means of my amendments. We have the statute as it is. However, if we were to renegotiate the statute, I should have thought that it would contain some mechanism of qualified majority voting, or some such arrangement, which would not operate on an absolute population basis, but which would acknowledge the weight of different states in the number of votes that they had for particular positions. That is how I would conduct the negotiations to achieve a result that would be acceptable to the larger states.

Mr David Lammy (Tottenham, Labour)

On the issue of the quality of jurists in some of the smaller countries, does the hon. Gentleman accept that we live in a global world? The law is not immune to that. Institutions such as Harvard, Cambridge, the school of Oriental and African studies and universities in Canada and Australia produce many international students who qualify as lawyers and undertake masters degrees in other countries. There is a lot of cross-fertilisation now, so the assumption that because a country is smaller its jurists cannot be of the same quality as those of a larger country does not stand up.

Mr Crispin Blunt (Reigate, Conservative)

I was with the hon. Gentleman right up until his final sentence. A nation the size of San Marino is unlikely to produce as many jurists qualified to the same standard as the United Kingdom or the United States. I use San Marino as an example because it is the most extreme case, but populations range between 27,000 and one the size of China's. Of course there are qualified jurists from other countries of the world. However, it is highly improbable that those jurists are of a uniform standard or that the most senior judge of every nation is of the same quality. If an institution represents a vast number of people, those at the top of that institution will be of higher quality. Perhaps that is not a terribly important point.

Mr David Lammy (Tottenham, Labour)

I want to be sure that I have understood the hon. Gentleman's conclusion. Is he saying that India and China have more qualified jurists than the United Kingdom?

Mr Crispin Blunt (Reigate, Conservative)

I am saying that, on the basis of their population, that is likely. That is all that one can say. I base my assumption solely on the size of their populations. Extremes of population have an effect on the way in which the Assembly of States Parties votes on those positions, and all of the 18 judges on the ICC must come from different countries. That means that the field of judges from which one is obliged to select is unlikely to be of as high a quality as it would be if one had a free choice of jurists regardless of their nationality and if there were no voting process—if the judges were appointed on the basis of a straightforward selection test of their ability as jurists. That is true not least for the reasons that my hon. Friend the Member for Aldershot (Mr. Howarth) made clear. Because of the secret ballot, the election of the judges and the way countries vote will always be subject to negotiation.

I am certain that if we ratify the statute, the United Kingdom and France, as two major players, will be successful in getting a judge elected as a member of the court. Of course, I cannot be wholly certain, because the judges will be elected by secret ballot. However, if the United Kingdom has a candidate for the panel, the Foreign Office will attempt to ensure that we can rely on the votes of those members of the Commonwealth and of the European Union that have ratified the treaty. We would use the networks to which we belong to secure support for our candidates—as will every other country. If a country is small and wants to focus on one particular institution, it has quite a lot to trade—on vote out of a narrow field of only 30 for the election of a prosecutor or a two-thirds majority out of 40 for the election of a judge.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I am sure that the hon. Gentleman agrees that any method of appointing judges or prosecutors that involves some international aspect will come up against the sort of complexities and interactions that he has identified. In my experience as a practising lawyer for more than 20 years, any method of appointing judges or prosecutors, no matter what it is, comes in for some sort of criticism from some source or another. That is healthy and democratic.

However, I am interested in testing the hon. Gentleman's arguments against his principled position of being in favour of the court. His arguments should therefore stand a test of logic. How a prosecutor or deputy prosecutor—for completeness, the deputy prosecutors are also elected, not appointed by the prosecutor—behaves, and whether he or she behaves properly, will be a function not of how he or she is appointed, but of whether he or she sticks to the rules that are laid down and the standards that are set. The real test is: does the statute create a set of circumstances in which we can have confidence in the behaviour of a prosecutor or deputy prosecutor, no matter how they are appointed; and if they do not behave properly, can we remove them?

Could the hon. Gentleman address his comments to the contents of articles 42 and 46, which deal with the removal of prosecutors and deputy prosecutors in certain circumstances, and tell us where they are deficient? The system of appointment will never be perfect—even his own preference, which appears to be a weighted majority, has a lot of flaws, some of which have been identified here. Therefore, the system of making sure that we stick to the rules has to be robust. Is it or is it not robust?

Mr Crispin Blunt (Reigate, Conservative)

I am grateful to the hon. Gentleman because he has got to the kernel of the issue. There is nothing that we can do about the statute now. It is done. It is signed. It is not up to the Committee to change that. The purpose of my amendment is to put the flag in the ground as to what happens if it does not work in the way that we intended. The hon. Gentleman is therefore absolutely right to focus on what happens ``if''.

The body that will decide whether a prosecutor in an individual case is behaving properly is the appeals chamber of the court. The hon. Gentleman will have examined the requirements for the election of judges. Judges require a two-thirds majority to be elected. Of the candidate judges, those 18 are chosen who then receive the most votes in the Assembly of States Parties.

I shall try to illustrate what happens if a prosecutor misbehaves by giving a case study. Let us say that a prosecutor is most enthusiastic to bring the major states to justice because he thinks that, for example, the way United Kingdom and the United States are behaving over Iraq is wrong. He wishes to bring the British Prime Minister or the commander of the operations there to justice, as he sees it, and he is determined to begin an investigation after some appalling accident in Baghdad.

The people who will decide whether or not he is correct to do so are two types of judge. There are judges who are skilled in humanitarian law and those who are skilled in criminal law. Given that the trial chamber and the pre-trial chamber have to have a preponderance of judges who are skilled in criminal law and that it is mandatory that, of the 18 judges, nine are skilled in criminal law and five in international and humanitarian law—with particular respect to crimes against women and children—the appeal court will be filled with jurists whose expertise is likely to be predominantly in humanitarian law. Judges who go into that area of law have a particular outlook on the conduct of cases and a particular attitude to authority. The court is not, therefore, likely to be representative of the population or of the legal profession as a whole, because it will attract people who have a particular concern about the exercise of rights.

I hope that the ICC will not operate like that, and that it will operate fairly. However, we all know that judges have their own opinions and that they can be as political as the rest of us. Some astonishing political judgments have been handed down from time to time, particularly by international tribunals, but not least, as the hon. Member for Kilmarnock and Loudoun said, by judges in the United Kingdom. One cannot control the appointment of judges. They will always be controversial.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

With respect to the hon. Gentleman, he misreads the statute. In terms of qualifications for judges, paragraph 3(b) says:

``Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure . . . or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights''.

Those are examples. A candidate will not have to have such expertise, although I think that it would be a significant advantage in the ICC. The words ``such as'' are crucial. The judges will not consist only of what the hon. Gentleman describes somewhat disparagingly as humanitarian lawyers.

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman is right to point to paragraph 3(b)(i) and (ii), but it is pretty clear that the judges are likely to be drawn from those who have established competence in relevant areas of international law. Because of the injunction placed on the statute and if the election is fair—which we cannot know, because it will be a secret ballot by the Assembly of States Parties—those candidates with expertise in humanitarian law are likely to be successful in the selection of judges.

My point is not that that will not work, but that it might not work. I am trying to make it clear that the people with the biggest and best reputations as champions of international humanitarian law are likely to be those who are at one extreme end of the spectrum of the enforcement of rights under the law. That is at least possible. All that has to be established is that it is possible for a court constantly to seek to push the boundaries of its competence, jurisdiction and definition of human rights, as European courts of all varieties have done, including the European Court of Human Rights and the European Court of Justice. Juries may be anxious to accrete areas of responsibility and definition to them and much will depend on the way in which they define the law. Therefore, even if the selection of judges and prosecutor and everything else is all right at the beginning, an area of practice could be established by the court over time and develop in a way that was wholly unexpected by the Ministers or the Government of the day who negotiated the statute.

My amendment would put a stake in the ground to say that, at the end of the day, there must be a test of reasonableness. In the most extreme case, the United Kingdom may find that the ICC is bringing to justice our citizens in circumstances in which the UK does not believe that a case should have been brought, or in which they have been acquitted in such a case.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I have listened carefully to the arguments that my hon. Friend is deploying on his amendments, and he is to be congratulated on the way in which he has engaged the whole Committee in reasonable debate. Has he had an opportunity to consider article 40, on the independence of judges? Paragraph 4 deals with the self-policing nature of judges in decisions on whether they are engaging in suitable activity. Paragraph 3 states:

``Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.''

Does my hon. Friend agree that, because of the self-policing nature of the judges in this instance in respect of independence, it is important that the Committee debates on a ``what if'' basis, so that we can establish the Government's thinking and highlight an important part of a court that we hope will ultimately be successful and bring the right people to justice in the right fashion?

Mr Crispin Blunt (Reigate, Conservative)

My hon. Friend is right to point that out. It is also fair to point out, as I am sure the Minister will, that the judges will serve for a fixed term—a maximum of nine plus three or nine plus six years. Once the court is up and running, the maximum terms will be nine years for judges and, I think, 10 years for the prosecutor if his term is extended. If, in the view of the Assembly of States Parties, the nature of the court goes wrong and it takes on an unwelcome identity or character, there will be an opportunity progressively to change its personnel. In effect, two judges will be changed every year, so the nature of the court can be changed.

However, if in the Assembly of State Parties a group of 77 countries takes a particular view and votes together for judges of a particular character, the United Kingdom cannot stop them. We might find that that group of 77 countries can then use the ICC as a lever against the United States, the United Kingdom, France, China and Russia —the permanent members of the Security Council —against whom they do not have any other levers, to police the manner in which the security operations of the United Nations Security Council are conducted around the world. They could do that by putting their own people into the positions of prosecutor and judges.

That is the risk to which we are exposed. I am not saying that that will happen—I cannot possibly say that. The point is that nobody knows what will happen. In passing the legislation now, we can give no guarantees to future Prime Ministers of this country or to future commanders of our armed forces in the field that they will not be arraigned by an ICC with a particular agenda. The purpose of my amendments is to provide a flag in the Bill so that, if we find ourselves in a position in which our jurisdiction is overridden by the ICC—as it can be under the Rome statute—and British citizens find themselves facing the ICC after they have faced an investigation and trial here that have been found wanting by the ICC, Parliament can, through a Committee of Inquiry, make a judgment about whether the behaviour of the ICC was reasonable. That should be automatic in the Bill.

That is all that my amendments would do; they do not destroy the statute. We can ratify the statute. If it works as we hope it will, it will create an immensely important institution, but we must bear in mind what could happen in 10, 20, 30, 40 or 50 years' time. It is appropriate that we show that we are aware of what could happen.

I know that my speech has been long; but we have had a good debate with a vast number of interventions. If the court goes wrong in decades to come and turns into an institution that works against the interests of the United Kingdom, we can show that in our Committee debate, we accepted and identified potential problems. If the court does not behave in the fashion that we anticipate it will, we will have marked our ground with the amendments.

Mr Gerald Howarth (Aldershot, Conservative)

I rise to support my hon. Friend the Member for Reigate, who has made an extremely important contribution to the debate. He has articulated the concerns that many of us have and he has clearly put on the record for posterity the real fears that some of us have about how the legislation could be interpreted in the future. He is entirely right to point out in such a comprehensive manner that the legislation is not for the short term. It is likely to apply for decades to come. We know that existing treaties to which we are bound have caused us difficulty because circumstances have changed since those treaties were originally drawn up and accepted by previous UK Governments. I will not go into all the details of those.

It is important that those who are called upon by the Government, with the support of our Parliament, to risk their lives in pursuit of our nation's interests, whether it be defending our shores or our friends and allies abroad, or indeed, simply trying to restore order, are aware that we value their actions and their commitment. They should be certain that we would not take any action here that might put them at risk of being unfairly subjected to an international tribunal when they were acting on instructions in accordance with all the rules laid down by the British Government.

As all members of the Committee will know, serious concerns have been raised by some of our most senior members of the armed forces, not least the new Chief of the Defence Staff, Admiral Sir Michael Boyce. It is not an academic issue in the United Kingdom, but it is clearly an academic issue in Luxembourg, San Marino or some of those other states that have been so keen to sign up to this treaty. It is not of merely academic interest to the UK, France or the United States of America because we have been leaders in deploying our troops in conflicts that have arisen since the second world war around the world.

In the aftermath of the fall of the Berlin wall, conflagrations have broken out in parts of the world where we have felt that it is in the interests of the new world order for us to be involved. We have put our troops at risk, first to restore stability and then to police it. The Balkans are an obvious example. Cyprus is a continuing example where we maintain troops as part of an endeavour to maintain stability in that part of the Mediterranean. Sierra Leone, too, is another example. The list is growing and there are few places from which we are withdrawing; we are constantly adding to that list and therefore more and more of our troops are becoming involved.

That is why reservations have been entered by the French Government. We all know about the concerns being expressed by the United States Government. I do not believe that it is chauvinistic of us to raise all the concerns that my hon. Friend has so comprehensively and clearly registered. We are defending our own interests because we are a nation that is committing substantial numbers of troops who would be the people at risk of prosecution were this well-intentioned endeavour to go wrong.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

The hon. Gentleman speaks in support of the amendments. It would be helpful to those of us who are trying to evaluate the quality of that support if he could express the general support that his hon. Friend gave for the principle of the International Criminal Court. Does he agree with the ICC in principle and does he agree that, whatever qualifications there may be, it should have jurisdiction over our armed forces?

I have listened—with interest, in view of his background and his constituency—to the hon. Gentleman speak before about the concerns that some members of our armed forces may have. Was he present at the meeting of One World Trust where Anthony Rogers, a former director of Army legal services, spoke with some authority and experience about the ICC? Among other things, he said:

``Some of the war crimes listed will be of concern to military operations staff because they relate to cases of excessive incidental damage, for example `intentionally launching an attack in the knowledge that such attack will cause incidental loss of life...which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.' However, the qualifying words `intentionally', `in the knowledge', `clearly' and `overall' should ensure that only the most obvious cases would come before a court and that military commanders doing their best in difficult circumstances to comply with the law of armed conflict will have nothing to fear.''

Does the hon. Gentleman disagree with that informed and experienced view from a former director of Army legal services?

Mr Gerald Howarth (Aldershot, Conservative)

I was not at the meeting, so I am not aware of what was said there. I heard the hon. Gentleman's point, but I return to a word that was used earlier—confidence. Can we have confidence in the court? Some of us have serious concerns as to whether we will be able to do so. We will debate the various crimes that are listed in the Bill later: I have tabled some amendments to that part, and that is probably the appropriate time to deal with the matter.

The hon. Gentleman gave the view of one man. Of course, superficially, there should be no concerns. However, surely he heard my hon. Friend the Member for Reigate set out the difficulties that could arise if the court were not to act properly. My hon. Friend pointed out that the mechanism by which the court is established leads to the possibility that, through horse-trading, people who would not see things the same way as we would could be appointed to positions of influence. In circumstances of differences of interpretation, there could be serious consequences for our armed forces.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

Can the hon. Gentleman define more precisely what he means by ``we'' in the context of the ICC?

Mr Gerald Howarth (Aldershot, Conservative)

I am not sure what the hon. Lady means. I have concerns, some of which are shared by others. As far as ``we'' is concerned, I am talking about the United Kingdom and a common view that most of us hold that what we did in Kosovo, Belgrade and Iraq was necessary. Others around the world took a different view and felt that we should have not intervened in Iraq in the way that we did pursuant to our obligations to Kuwait.

We are talking about serious issues that have practical implications for our armed forces. Our duty is to consider all possible ways in which the legislation could be interpreted and the way in which the court could act. That is not to say that we are wholly against the principle of establishing a court in which tyrants and those who persecute innocent people can be brought to justice. We are trying to tread a tightrope, ensuring that there is a mechanism by which dictators and tyrants who are guilty of the most appalling atrocities may be brought to justice when there is a common view that those are appalling atrocities. The problem is that such people do not sign up to international conventions—by definition, they do not care about the rule of law or conventions of warfare, and they are not interested in human rights.

The problem is to provide a mechanism for dealing with such people without producing arrangements that disadvantage bodies that are trying to bring the people who act in these atrocious ways to justice. We need to proceed without tying the hands of our troops, imperilling our armed forces or putting our own Government at risk. That is why my hon. Friend the Member for Reigate tabled the amendment that brings matters back to the United Kingdom.

To make it clear in words of one syllable, article 17.1(b) of the Rome statute states that a case is inadmissible if

``The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute''.

If the United Kingdom has decided that it is not right to prosecute, we want to prevent the ICC from having further jurisdiction over us. If the UK authorities have considered the matter, should another court be able to supplant our judgment with its own?

Mr Tony Worthington (Clydebank & Milngavie, Labour)

I am listening with interest to the hon. Gentleman, but I am still not clear on where he stands. I understand the position of the hon. Member for Reigate who basically supports the Bill, warts and all. Does the hon. Member for Aldershot support the Bill as it stands?

Mr Gerald Howarth (Aldershot, Conservative)

The hon. Gentleman seeks to curtail debate by trying to establish that. The Conservative party has declared itself, in principle, to be supportive of the concept—[Hon. Members: ``What about you?''] I am a member of the Conservative party. The principal function of the Committee is to analyse in detail the ramifications of the Bill. Conservative Front Benchers have made it clear that, unless certain amendments are accepted, Her Majesty's Opposition will oppose the Bill on Third Reading. That is the Conservative party's position.

What remains of concern, especially to people in the armed forces, is the indecent haste with which the Government want to ratify this treaty, knowing as they do the serious reservations of the United States of America and the open hostility of the Chairman of the Senate Foreign Relations Committee, Senator Jesse Helms. America is, in common with the United Kingdom, frequently called on to commit its troops in proportion not to the possibility of hostilities, but to the reality and probability of conflict. I personally object to the Government's indecent haste to ratify the treaty. They well know that a general election will take place shortly and it is undesirable and improper of them to proceed—

Mr. Browne rose—

Mr Gerald Howarth (Aldershot, Conservative)

I wonder whether the hon. Gentleman intends to make a speech, or whether he intends to spend all his time intervening on my hon. Friend the Member for Reigate and me. Of course, I give way to him.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I suspect that if that question required an answer, you would say that it was a matter for me, Mr. Cook.

The hon. Gentleman makes great play of ``indecent haste''. Does he recollect a debate that took place on 27 October 1999 in the Chamber of the House at the instigation of my hon. Friend the Member for Bethnal Green and Bow (Ms King), in which the Front-Bench spokesperson for the Opposition castigated the Government for the delay in producing a Bill? The hon. Gentleman reminds us that he is a member of the Conservative party. This may be another example of a split within Conservative party, but I do not want to intrude on personal grief.

It would help us to assess the hon. Gentleman's support for the amendment if he were prepared to tell us in a preamble such as the hon. Member for Reigate gave us that he supports in principle the International Criminal Court.

Mr Frank Cook (Stockton North, Labour)

Order. I have been very lenient and tolerant this morning because the standard of the debate has been extraordinarily high and it is important that the flow of the game not be impeded by an unreasonable referee. However, interventions must be a good deal shorter, and I do not want any further rehearsing of programming motions or Second Reading. Can we stick to the amendment, please?

Mr Gerald Howarth (Aldershot, Conservative)

I am grateful to you, Mr. Cook, for that advice, which I fully intend to follow.

In answer to the hon. Member for Kilmarnock and Loudoun, I am bound to say that I do have reservations. As the debate progresses and the international events develop, my right hon. and hon. Friends on the Front Bench review the position of the official Opposition on the legislation. Unlike the Labour party, the Conservative party does not consist of a bunch of control freaks. We believe in examining the arguments, and we have. That is why we have entered some reservations.

I made my position clear to the hon. Gentleman: I am in favour of finding a way of bringing to justice those who we all believe have committed the most reprehensible crimes. The duty of the Committee is, on the one hand, to ensure that we are able to do that but, on the other hand, to do so without imperilling those troops who we call upon—who the hon. Gentleman calls upon—to go and potentially lay down their lives for him and this country. It is right and proper that we should ensure that we have every possible protection for our troops. That is the position of the Opposition. We believe that protection should be provided. On the other side is an indecent haste to get the legislation on the statute book.

What I am really concerned about is the staggering gullibility of some of the right hon. and hon. Gentlemen opposite. I was absolutely staggered by the naivety of the Solicitor-General as far as the Yugoslav prosecutor is concerned. He said that she had decided that what the Royal Air Force and the United States air force did in Belgrade was all right. My hon. Friend the Member for Reigate pointed out that that is an entirely subjective view held by that prosecutor. We in the House cannot operate on the basis of the whim of a prosecutor. [Interruption.] The Minister is saying that she is the prosecutor, but we are talking about a situation in which there might be a different prosecutor.

My hon. Friend pointed out the mechanism by which the prosecutor would be elected and the dangers of that process of election, which could turn out a prosecutor not like the prosecutor in the Yugoslav war crimes tribunal, but some other person with a different axe to grind. That is why my hon. Friend pointed to the two different lists of the qualities required of the lawyers who sit as judges.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

The hon. Gentleman's comments seem to indicate that the prosecutor is just a bystander—a person offering individual comment, like a commentator on a football match on radio or television. I believe that the expression he used was a person with an axe to grind. He should respect the fact that the prosecutor has a specific legal function and is bound within the context of laws to carry out certain duties objectively. That is the whole point.

Mr Gerald Howarth (Aldershot, Conservative)

I understand that, but the Minister is being slightly perverse.

Law is a matter of interpretation. When my hon. and learned Friend the Member for Harborough (Mr. Garnier) is not attending so assiduously to his duties here and in his constituency, he is making a judgment. We are concerned about the mechanism by which those who will exercise judgment are appointed.

Mr Edward Garnier (Harborough, Conservative)

I hope that I do not abandon my judgment when I come here.

Mr Gerald Howarth (Aldershot, Conservative)

Indeed not. My hon. and learned Friend brings to bear an acute judgment from which the House is privileged to benefit.

It is the mechanism by which the judges are appointed that causes us anxiety. We are worried that those who are not the most objective and best qualified might be appointed. The hon. Member for Ilford, South, who is vulnerable when it comes to matters involving Israel—

Mr Mike Gapes (Ilford South, Labour/Co-operative)

On a point of order, Mr. Cook. The hon. Gentleman is making a disgraceful attempt to introduce ethnic and racial politics into the discussion. For his information, I am not Jewish, although he seems to think that it would be an insult if I were. I am a supporter of Israel and I hate anti-Semitism from the hon. Gentleman or from anyone else.

Mr Frank Cook (Stockton North, Labour)

The hon. Member for Aldershot may have been referring to the amendments rather than to members of the Committee personally. In any case, it is not a point of order for me.

Mr Crispin Blunt (Reigate, Conservative)

Further to that point of order, Mr. Cook. I fear that underlying the point of order from the hon. Member for Ilford, South was an accusation of anti-Semitism on the part of my hon. Friend the Member for Aldershot.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

Yes.

Mr Crispin Blunt (Reigate, Conservative)

The hon. Gentleman has now confirmed that. It is disgraceful and that accusation should be withdrawn.

Mr Gerald Howarth (Aldershot, Conservative)

Further to that point of order, Mr. Cook. The hon. Gentleman has accused me of anti-Semitism. I find that deeply reprehensible. I have some extremely good Jewish friends who would resent the imputation that the hon. Gentleman has laid against me. I have not a clue whether or not he is Jewish.

Mr Frank Cook (Stockton North, Labour)

I am getting the picture clearly—if I ever had any difficulty before. Let us all hold our breath for about 10 seconds and realise that nothing was meant personally. Would the hon. Member for Ilford, South care to comment on that?

Mr Mike Gapes (Ilford South, Labour/Co-operative)

I do not wish to challenge your authority, Mr. Cook, but I interpreted those remarks as being anti-Semitic, and on that basis I cannot withdraw my statement. It is not the first time that I have heard such remarks.

Mr Gerald Howarth (Aldershot, Conservative)

Perhaps it might be best if I were to carry on.

Mr Frank Cook (Stockton North, Labour)

Order. In the circumstances, the use of the term ``anti-Semitic'' was used in a personal sense, whereas the original references were not. I must therefore ask the hon. Member for Ilford, South to reconsider his immediate statement and to withdraw it in the context in which we operate at present.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

I accept your interpretation of those words, Mr. Cook. On that basis, I withdraw the remarks in light of your interpretation of them.

Mr Gerald Howarth (Aldershot, Conservative)

I am not sure, Mr. Cook, that that is entirely adequate.

Mr Frank Cook (Stockton North, Labour)

Order. We have settled the matter. For everyone's sake, not only God's, I do not want any further comment on it. Can we proceed with the debate on the amendment?

Mr Gerald Howarth (Aldershot, Conservative)

No. Forgive me, Mr. Cook, but I shall not accept the hon. Gentleman's apology unless he is prepared to withdraw the accusation, which he made from a sedentary position, that I am anti-Semitic. Full stop.

Mr Frank Cook (Stockton North, Labour)

It will be recorded that the hon. Member for Ilford, South has withdrawn the statement under the terms in which I asked him to do it. If that is not acceptable to the hon. Gentleman, I ask him to retain his seat or remove himself from the Room.

Mr Gerald Howarth (Aldershot, Conservative)

I accept your ruling, Mr. Cook, because I have no wish to challenge it. However, I want to make it clear that I am not anti-Semitic, I never have been, I have very splendid Jewish friends, and I did not intend to suggest that the hon. the hon. Member for Ilford, South is Jewish. I do not know whether he is Jewish, and I do not care whether he is Jewish.

If I may continue my remarks, I thought that the hon. Gentleman was vulnerable on the issue of Israel because I heard a programme on the radio the other night about his constituency. I was only going to mention it in passing—I was not suggesting that he was an agent of Israel or anything like that—but, as my hon. Friend the Member for Reigate pointed out, Israel has a problem with international tribunals because it is constantly under attack. I happen to support the right of the state of Israel to exist, I deplore that attacks that have been made on it, and I believe that it was a Conservative Government who ensured that the state of Israel could exist after 2,000 years. We all welcome that.

In an earlier intervention, the hon. Member for Ilford, South dismissed the idea that other nations would gang up on the United Kingdom. I wanted to refute what he said, because, as my hon. Friend pointed out, there is a mechanism that other states could use to gang up not only on the United Kingdom, but on those who are engaged in trying to hold the ring in conflicts around the world. I remind the hon. Gentleman that when the United Kingdom went to recover the Falkland Islands, we did not initially enjoy even the support of the United States, although that support was subsequently forthcoming. It is therefore entirely possible that we could be cast in the wrong for having done what we believed to be right, having charged our troops with the responsibility of carrying out the policy of the United Kingdom Government in trying to restore order in the world.

I urge the Government to accept the amendments. I do not believe that they are wrecking amendments, as the hon. Member for Kilmarnock and Loudoun suggested. They would ensure that decisions on prosecution are retained in the United Kingdom. I cannot understand how the Government can assert that there is something wrong in our suggestion that somebody who commits a crime in United Kingdom territory should be subject not to the jurisdiction of the International Criminal Court but to that of the United Kingdom courts. That seems a perfectly sensible and valid point.

I hope that the Government will accept the amendments, because I believe that they are not wrecking amendments—far from it—and that they help to strengthen the protection that we owe to our armed forces.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

Apart from one sad little episode, this has been a high-quality debate. The discussion has gone to the core of many of the issues covered by the Bill. The hon. Member for Reigate apologised for the length of his speech and the number of interventions, but we have touched on some of the key themes. It is a good that we have had this debate at this stage, rather than letting the time run into the sand without having seriously debated the issues.

Mr Frank Cook (Stockton North, Labour)

Order. We are all obliged to abide by the conventions and practices of the House. I ask members of the Committee to address their remarks to the Chair. I know that one tends to adopt a conversational style, and in some ways I am in favour of that, but I am partially deaf.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I apologise, Mr. Cook. I tend to look at those who made the comments and speak to them rather than address the Chair. I have not become accustomed to the arcane practices of the House. I hope that you do not take that comment as a criticism of the Chair and our proceedings. I apologise for not addressing the Chair.

It is unusual that the hon. Member for Reigate allowed so many interventions in his speech. He was generous in that respect. He said that he was in favour of the court and wanted it to work as a successful and important institution. We received an unequivocal statement from him and one that was rather less forthright from the hon. Member for Aldershot, when he was pressed by one of my hon. Friends.

That aside, however, the hon. Member for Reigate made another important remark, which was that we are not renegotiating the statute in the Bill. We cannot start from somewhere else. We are where we are in terms of the make-up of the International Criminal Court. He accepted that in good faith. We have moved on from clause 1 and are now debating clause 2, which is about the operation of the court. We are concerned only with the request for the arrest and surrender and handing over of people. We have discussed the size of the population of the member states. We did not discuss their GDP and the possibility of weighting.

We have also discussed the complexities of an international body appointing judges and a court. Reference has been made to the pre-trial chamber and to the job description of the prosecutor. They are all relevant themes and it is important that we discuss them at this stage in our proceedings. They will be echoed in future discussions, but it is important that we regard them as central to the purpose of setting up the institution.

The hon. Member for Reigate kept putting flags down and then later on he changed metaphor to sticking a stake in the ground. To push his analogy a little further, his amendments would drive a stake right through the heart of the International Criminal Court. They would constitute a massive let-out clause. We made clear on Second Reading and in some of our earlier debates in Committee that the United Kingdom will have the primary right to investigate here in Britain any allegation against any UN national.

That is the starting point. In other words, the International Criminal Court could step in only if we were found to be unwilling or unable to investigate such matters. In a telling intervention, my hon. Friend the Member for Tottenham (Mr. Lammy) underlined the words ``unwilling or unable''. They are crucial. It is important to emphasise that, if we in the United Kingdom decided not to prosecute after undertaking a genuine investigation, the ICC would not take jurisdiction. I accept that my response is more of a ``what if'' answer, but it means that the situation envisaged in the amendment of there being an ICC warrant for an arrest of a United Kingdom national would not arise.

Mr Crispin Blunt (Reigate, Conservative)

I know that the burden of the Minister's argument is that such a situation would not arise, but he must accept that the interpretation of ``genuine'' will be that of the court, not ours.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

That will be so, but it is about having confidence in the court as an institution, not considering whether a particular personality with an axe to grind is the person making the decision. We must build an international institution around the rule of law within which context the individual will act as a jurist or a prosecutor.

In the hypothetical event of a difference of opinion on jurisdiction between the International Criminal Court and a state, clause 5(4) enables proceedings for a delivery order to be adjourned pending the outcome of a challenge before the ICC. We do not feel that there is a need for an obligation to challenge an arrest warrant to be specified in the Bill, because the option of a challenge is already provided for in the statute.

In effect, therefore, as my hon. Friends said, the amendments would undermine the ICC even before it is established. That would send completely the wrong signal from the outset, when we are trying to build support. I agree that we should press, encourage and exhort every country and state to join—not ask them to withdraw, but urge them to support the court. If everyone signs up, it will be all the stronger. That is why we are keen to be involved and encourage others by our own good example.

The Government strongly support the ICC. We had a hand in negotiating the Rome statute, which creates a body to be staffed with highly qualified independent experts, some of whom may be British. If we are to put our weight behind the creation of an independent international court, we cannot simultaneously accuse it of an inability to undertake proper admissibility hearings even before it has started to do the job, or we shall be undermining it before we even get it off the ground. The message that the amendment would send to the world is that states should withdraw from the ICC as soon as they are unhappy with one of its rulings—in other words, it would be a massive let-out clause.

Of course the Government—I believe that the hon. Member for Reigate started from this premise—have a duty to and will protect the legitimate interests of our nationals. The principle of complementarity will ensure that the ICC will be able to assume jurisdiction only when the UK is genuinely unwilling or unable to investigate. I shall spend a little time on those two key words, as they are important. Definitions of ``unwilling'' and ``unable'' are contained in article 17 of the statute. ``Unwilling'' is defined as meaning when the

``national decision was made for the purpose of shielding the person . . . from criminal responsibility'',

or when a delay at the national level is, or national proceedings have been conducted in a way that is,

``inconsistent with an intent to bring the person . . . to justice.''

``Unable'' is defined as meaning when,

``due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to ... carry out its proceedings.''

I cannot envisage Britain falling into that category. We are unlikely to be unwilling or unable.

In other words, the purpose of the court is to catch states whose judicial systems have collapsed and whose dictatorial regimes refuse to punish their own abusers of human rights. That is the idea. I do not believe that we are in that bracket. Hon. Members from all parties respect the judicial system, and it is likely to last. The question boils down to the word ``trust''—whether we trust an institution in whose creation we are co-operating with the international community.

We are trying to build an international legal institution, and it is important to have confidence in that body. In the other place, in the debate on the ICC on 20 July 1998, Lord Kingsland said:

``It is . . . extremely good news that the prosecutor in proceedings before the court will act entirely independently of the influence of individual states.''—[Official Report, House of Lords, 20 July 1998; Vol. 592, c. 626.]

I recommend his words to the hon. Member for Aldershot in particular. I cannot emphasise enough that national judicial systems will have the first claim on any investigation. The ICC statute is full of safeguards against politically motivated prosecutions. I do not understand why the amendments are necessary. Under article 45, the prosecutor must make a solemn undertaking in open court to exercise his or her functions impartially and conscientiously.

Comments were made about the appointment of judges and the size of states. The United Nations operates a general principle of equal respect to each state—it is not like the European Union. The principle does not depend on gross domestic product or size of population. The General Assembly elects its judges to tribunals with a secret ballot, so such a ballot is not unusual in the United Nations. Therefore, the matter is not completely without precedent.

As for the qualifications of judges, I emphasise that the UK negotiating team, which has spent years working with others on setting up the court, spent much time on the elements of the statute that relate to qualifications of judges. We agree that it is important to have top-quality judges and juries. There will be judges who are experienced in humanitarian law, but—this may help the hon. Member for Aldershot—there will also be military judges who are experienced in the rules and laws of war. There will not only be humanitarians serving, which may have been the impression given by the hon. Member for Reigate.

Mr Edward Garnier (Harborough, Conservative)

The Minister will also know from the statute that the judges must be selected with regard to a worldwide geographical balance. What does he anticipate will be the geographical balance of the judges?

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

It depends to an extent on ensuring that the whole world is included. The same applies to the United Nations, so there is not a weighting in that system either. I do not think that we should anticipate a weighting system, although the hon. Member for Reigate has put forward the case for a weighting system that goes along the line of the European Union system or a GDP system. I am not sure, because I did not receive a clear view from him, and I am not sure that it is a question to be settled in this debate. The key matter is whether we respect the integrity and independence of the jurors and prosecutor.

Mr Gerald Howarth (Aldershot, Conservative)

The Minister sought to allay our fears by saying that some of the judges will have experience of military law. I have given article 36 a cursory glance, and I see no such reference, although there is a reference to

``extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court''.

Is the Minister alluding to that in support of his contention?

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I cannot claim the eminence of the QCs in this Committee. I can simply read what is in the documents that I receive. I have read—of course, I will be told that it is subject to interpretation—in article 36 that every candidate for election will

``Have established competence in relevant areas of international law such as international humanitarian law''.

I thought that international law and international humanitarian law is the law of war, so I include military judges within that. The term is inclusive rather than exclusive.

Mr Edward Garnier (Harborough, Conservative)

The Minister may be misleading himself, or may be misusing the English language. When he says military judges, presumably he does not mean generals who are judges, but civilian judges who are experts in military law.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

Or judges who have served in the services in that capacity, and are therefore experts in such a capacity.

In the international criminal tribunal for the former Yugoslavia, the judges of the tribunal are elected by the General Assembly from a list submitted by the Security Council. Candidates are elected by an absolute majority of General Assembly members, and the qualifications stated in article 36 of the ICC statute are even stronger than those already set down for the tribunal. I hope that that reassures hon. Members.

I think that the amendments would undermine the principle that we are trying to establish. We have had an excellent debate that has probed some key matters, but I hope that the amendments will be withdrawn. If they are not, I shall urge the Committee to resist them.

Mr Crispin Blunt (Reigate, Conservative)

I listened with interest to the Minister's reply, and I agree that, other than the unfortunate diversion down which we were taken by the hon. Member for Ilford, South, the debate has been excellent.

I wish to make it clear that the statute sat behind the amendment. It was important to debate the contents of the statute and the consequences that it has on the United Kingdom. I am grateful for the Minister's remarks, but I think that he overstated the effect of my amendments when he said that they would provide a massive let-out clause. The amendments do not let anyone out of anything.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.