Mr Frank Cook (Stockton North, Labour)

I remind the Committee that with this we are taking 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 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.''.'.

Mr Crispin Blunt (Reigate, Conservative)

The Government will be relieved to know that the wider debate on the statute has had a good airing. However, I should like to pick up some points that the Minister made in his reply to the debate. First, I stand corrected. I have wronged San Marino, Mr. Cook. San Marino is not the smallest country that has signed the treaty. That is Nauru, which has a population of 12,000. I hope that the Pacific is not part of the Minister's responsibilities, as he should know that.

Mr Edward Garnier (Harborough, Conservative)

It is even smaller than Market Harborough.

Mr Crispin Blunt (Reigate, Conservative)

Indeed it is, as my hon. and learned Friend points out, and smaller than Reigate and Redhill combined. That demonstrates the wider argument that we had this morning. If the United Kingdom wants to exercise as much influence in this institution to represent our citizens, we should break ourselves up into fully independent county-sized areas, each with a population of about 1 million. We would then all accede to the court and the United Kingdom would manage to collect together 60 votes.

Mr Stephen Day (Cheadle, Conservative)

That is what the Government are trying to do.

Mr Crispin Blunt (Reigate, Conservative)

That is what the Government are trying to do, as my hon. Friend says, with Scotland, Wales and Northern Ireland. If, by some unhappy chance, they are returned at the next election, we then face the wretched business of regional assemblies and the regionalisation of England. We could be in that position. However, if we are going to do that for these purposes, we should get on with it, on the basis of county size. About 1 million people live in the county of Surrey, and, if we had 60 units of that size, we would dominate the International Criminal Court in a most satisfactory manner. We would also be able to have all British jurists as judges in the chamber within the formal rules of the court.

However, I digress. I should like to take the Minister back to the point he made that the amendment would amount to a massive let-out clause and to an accusation that we do not have faith in the institution before we set it up. I fundamentally disagree with the Minister. This is not a massive let-out clause. The amendment, in the end, does nothing more than Parliament in binding the Executive to take certain actions if we find ourselves in dispute with the International Criminal Court.

I am concerned by the Minister's remark that the United Kingdom must trust the institution. That is not a tenable position to take if the Government are to discharge their obligations unto citizens. He may want to trust the institution, but in the end he cannot blindly put his faith in how the institution will work. We do not know how the institution will develop. What we do know is that there are elements of doubt within the rules. We cannot control how other countries will vote, how they will select the prosecutor, how the judges will be selected and who they will be, or what jurisprudence will accrete to the institution in the years to come. Therefore, I do not intend to press the amendments to a Division.

However, I look to the Government for an acceptance, at least at some point during the proceedings, that we cannot control the future development of the institution. We know what we want it to do. We know how we think it should behave—in a reasonable and responsible manner—with regard to important crimes, over which it will have judicial authority. A form of statement must ultimately be made on behalf of the United Kingdom and France—the only two members of the United Nations Security Council likely to sign up to the ICC—to the effect that, once the negotiations on the statute have been conducted, any resulting institution might not work in the way intended. Under article 127, if that occurs we have the right to withdraw, with a year's notice, as does any other state. It is important that Britain has that right, as part of the ratification process—which could be drawn up in our proceedings, on Report or Third Reading.

The Government should flag up, as my amendment seeks, the fact that the institution cannot have a completely blank cheque to behave in any way that it sees fit. The interests of the states who are party to it, and the particular interests of the United Kingdom, require recognition. It must be recognised that the United Kingdom has a set of interests that it wishes to protect. We want the institution to work in a way that, in the language used in the statute, any reasonable person would accept is how it is intended to work. We must register concern if the jurisprudence goes beyond that, in terms of the laws made by judges on the development of the institution, and if the institution is influenced or used by the personalities who are elected by the group of 77 countries—or any other collection of countries—who will make the court work. In summary, concern should be registered if the institution is made to work in a way that is effectively inimical to the interests of the United Kingdom and the other members of the Security Council.

I hope that I have established that the amendments are not fundamental to the statute and do not undermine them; I take issue with members of the Committee who claimed earlier that they did. I am therefore prepared to withdraw the amendment; others in a similar vein, in terms of their declaratory tone, will be tabled later.

Mr Mark Hendrick (Preston, Labour)

If the right to withdraw is already available under article 127, is not the amendment superfluous? To draw an analogy, is not the amendment like going into a marriage knowing full well that the legal instrument of divorce is available and asking the priest if he could include in the service the fact that if either side does not like what is going on, a divorce can be arranged?

Mr Frank Cook (Stockton North, Labour)

Order. We should confine ourselves to the specifics of the amendment.

Mr Crispin Blunt (Reigate, Conservative)

I am grateful, Mr. Cook.

The proper point that the hon. Gentleman makes, that the amendment is superfluous, is incorrect. He makes the mistake—which, if I may say, is too frequently made by Government Back Benchers—of failing to distinguish between the Executive and Parliament. My amendments seek to bind the Executive to taking certain actions and to enable Parliament then to set up a Committee of inquiry of both Houses of Parliament to satisfy itself as to the reasonableness of the actions of the ICC or of the prosecuting authorities of the United Kingdom, in a situation where a British citizen is the subject of a warrant for arrest issued by the ICC.

My amendments express a concern about the future conduct of the institution. I hope that the Government can flag up the necessity for some form of test of reasonableness as to how the institution works in practice. We cannot just have blind faith that it will work in the way that we hope and then accept whatever emerges. We must bear the burden of responsibility to the citizens of the United Kingdom if the institution goes wrong. It is important for the future of global governance that that does not happen. I am the first to accept that. We must hope that it does not, although without the major players in it, it is more likely that it might. If it does, I hope that the Government will find a way at least to acknowledge that there is a ground for concern.

Mr Frank Cook (Stockton North, Labour)

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

Mr Crispin Blunt (Reigate, Conservative)

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

Mr Frank Cook (Stockton North, Labour)

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

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

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

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

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

Article 22.2 of the statute states:

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

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

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

Mr Crispin Blunt (Reigate, Conservative)

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

Amendment, by leave, withdrawn.

Mr Edward Garnier (Harborough, Conservative)

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

Mr Frank Cook (Stockton North, Labour)

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

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

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

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

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

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

Mr Edward Garnier (Harborough, Conservative)

Mr Des Browne (Kilmarnock & Loudoun, Labour)

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

Mr Edward Garnier (Harborough, Conservative)

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

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

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

Mr Des Browne (Kilmarnock & Loudoun, Labour)

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

Mr Edward Garnier (Harborough, Conservative)

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

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

5 pm

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

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

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

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

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

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

Article 87.5(a) states:

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

Sub-paragraph (b) says:

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

Paragraph 6 states:

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

Paragraph 7 states:

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

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

Mr Des Browne (Kilmarnock & Loudoun, Labour)

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

Mr Edward Garnier (Harborough, Conservative)

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

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

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

Article 89.1 states:

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

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

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

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

Sitting suspended for a Division in the House.

On resuming—

Mr Edward Garnier (Harborough, Conservative)

Before we suspended our proceedings, I was seeking to demonstrate that the Rome statute, which we cannot amend, is not so rigid in its requirements for the court. As I said, it gives the engines of the court considerable discretion on what it may or may not do, even under the provisions dealing with the obligation to cooperate. Article 89.1 says:

``States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

The group of articles, under the heading, ``Part 9. International Cooperation and Judicial Assistance'' was not as unforgiving as perhaps the Attorney-General, and those who supported him in resisting my noble Friend Lord Howell of Guildford's amendments on Report and in Committee in another place, would suggest.

Therefore, armed with that assistance, let us turn to the clauses of the Bill that I seek to amend. Amendment No. 14 would replace ``shall'' with ``may'' in clause 2(2). Clearly, that proposal is not illegitimate and does not seek to amend the treaty. Nor does it undermine the laudable purpose of the treaty, which is to ensure that international war criminals should be brought to justice.

Under the heading, ``Request for arrest and surrender'' clause 2 (2) states:

``If it appears to the Secretary of State that the request should be considered by an appropriate judicial officer in Scotland, he shall transmit the request and the documents accompanying it to the Scottish Ministers who shall transmit them to an appropriate judicial officer.''

It is unnecessary to catalogue the difference circumstances in which it would not necessarily be appropriate for the Secretary of State to do that. My hon. Friends the Members for Reigate and for Aldershot (Mr. Howarth) referred to that this morning, so I shall not repeat what they said. If the amendment were accepted, clause 2(2) would read

``If it appears to the Secretary of State that the request should be considered by an appropriate judicial officer in Scotland, he''--

may—

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

Subsection (3) would state:

``If the request is accompanied by a warrant of arrest and the appropriate judicial officer is satisfied that the warrant appears to have been issued by the ICC, he''--

may--

``endorse the warrant for execution in the United Kingdom.''

To return to the point that I was making, perhaps inelegantly, a moment ago, the Attorney-General and the Solicitor-General have the power to do any number of things in relation to the initiation of prosecutions, but do not always do them—for good reasons. The Secretary of State may have a very good reason for thinking that it may not be the right thing to do in the circumstances of a particular case. Our domestic courts may already have decided on the matter or there may be some perfectly proper political reason for not wanting to initiate the process—where, for example, the court has decided, without imputing motives to it, to arraign the Prime Minister or the Chief of the Defence Staff of the day for perceived misconduct. The Secretary of State may, for perfectly good reasons of national sovereignty and national interest, decide that it is not appropriate for our Prime Minister or Chief of the Defence Staff to be put under arrest and brought before the competent court or, having suffered those two indignities, taken to The Hague to await trial. I acknowledge that that may be a highly unlikely set of circumstances.

As my hon. Friend the Member for Reigate pointed out this morning, we are passing legislation that will not be on the statute book until the election. It will be there, if not for all time, at least for as long as we transient beasts, Members of Parliament, are concerned. It will be not far short of permanence. We should therefore be careful about giving away to extraterritorial bodies, no matter how willingly we have signed up to the treaty, the power to remove from our own elected officials—that is, members of our Government—proper and properly exercisable discretion. I do not suggest that the Secretary of State should be allowed to act whimsically or to refuse simply out of pique to accede to a request from the court for the arrest or movement of papers as envisaged under clauses 2 and 3. As the protectors of our constituents' interests and the guardians of the rights of our people we should not, without extreme caution, wantonly or lightly pass to extraterritorial bodies for all time a power that we should expect to be properly and lawfully exercised by our own Secretaries of State.

Mr Gerald Howarth (Aldershot, Conservative)

I do not invite my hon. and learned Friend to go too far down the track of the Pinochet business, but the case is instructive in support of his argument in the sense that, although the United Kingdom was bound by an extradition treaty, the Government were given an element of latitude —a flexibility that my hon. and learned Friend is calling for in the Bill—which enabled the Home Secretary, having considered all the relevant matters, to make what was essentially a political judgment in what he thought were our best interests. Had he been bound in the way that my hon. and learned Friend fears that the legislation might bind a future Government, his hands would have been tied, and that may have done Britain great damage.

Mr Edward Garnier (Harborough, Conservative)

My hon. Friend may have unavoidably been out of the Room when I did so, but I broadly made that point before the Division. He is right. The Home Secretary's was not a political, but a quasi-judicial, decision, and his political colleagues did not interfere. Had the Prime Minister rung him and told him to act in the political interest of the Labour party, the Home Secretary would have been advised by his permanent secretary to tell the Prime Minister to take a bike ride. To do so would have been to act perfectly within his constitutional rights, and the Prime Minister would have behaved illegitimately if he had sought to influence the Home Secretary's decision politically.

The Solicitor-General, as a Law Officer, may sometimes have to take decisions that are embarrassing to his Government and his political party. He must take them none the less, because it is his duty as an independent Law Officer—outside politics—to do so. My hon. Friend the Member for Aldershot and I recall the Solicitor-General's predecessor, now Lord Mayhew, and the leaked memorandum from Downing street during the Westland affair. As Solicitor-General, our noble Friend threatened the then Prime Minister, now Baroness Thatcher, with a police investigation. That is precisely what a Law Officer should do, and I see no braver successor to Lord Mayhew than the current Solicitor-General. We feel the courage oozing out of his frame as we see him sitting opposite us. I have no doubt that he would, if our amendments were accepted, advise the Secretary of State to withstand political pressure in the exercise of his discretion.

I am asking for the Secretary of State to have discretion only in the circumstances described by our amendments to clauses 2 and 3. The amendments do not require the Secretary of State to misbehave or to fail to comply with the requests of the court or the Security Council, whichever is the requesting body at the time. We Members of Parliament should remember that our first duty is to protect the interests of the British constitution. It is sometimes in our national interest to share or pool our sovereignty: that is what international treaties are all about. NATO and the treaty of Rome, for example, require us to share sovereignty to some degree. The Rome statute does the same: we give jurisdiction to a body above our own jurisdiction, which applies to our own nationals, residents in our jurisdiction and, perhaps, also in extra-territorial circumstances.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Having intervened on the hon. and learned Gentleman several times, I must say that the more I listen to him, the more I realise that there is something in his argument. To help me to better understand that argument and the effect of the amendments, would he expand on the circumstances in which he believes it would be appropriate for the Secretary of State to exercise his discretion? That is what troubles me. If we ratify the statute, we are expected to comply with requests from the court, and it is difficult to envisage circumstances in which we would not want to comply with warrants had been properly issued—either pre-trial or on conviction.

Mr Edward Garnier (Harborough, Conservative)

The hon. Gentleman may not have been present when I suggested the examples of a Prime Minister or Chief of Defence Staff. In my preamble, I stressed that I imputed no motive to the court when describing a case in which it made a request to the Secretary of State regarding the arrest of a Prime Minister or Chief of the Defence Staff. The prosecutor may well have, in his or her view, perfectly good reasons for wanting to bring a British Prime Minister or Chief of the Defence Staff before the court, but our Secretary of State might think it inappropriate in terms of our national interest to release to the jurisdiction of the court our political or military chief. Those are two stark examples; others might occur to the hon. Gentleman.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

The scheme of the Bill is not that the Secretary of State delivers anyone to the ICC. The clauses relate only to the arrest of people before a procedure in our courts. The delivery orders are not granted by the Secretary of State, but by the courts; the Secretary of State only facilitates the arrest.

Mr Edward Garnier (Harborough, Conservative)

The hon. Gentleman is entirely right. I have been speaking since about 4.45 pm and I was hoping to curtail my remarks by speaking in shorthand. I should not have done so and apologise. I had assumed that what was set out in clauses 2 and 3—the procedure—was given as mutually understood. When I said that the Secretary of State could do such and such, I was implying that he or she would follow the procedure in doing so. I am grateful to the hon. Gentleman for his mild encouragement for my arguments. The fact that I have been talking since about 4.45 pm—

Mr Stephen Day (Cheadle, Conservative)

There was a Division.

Mr Edward Garnier (Harborough, Conservative)

Of course there was; I shall allow myself 10 or 12 minutes off for that.

It is encouraging that the hon. Member for Kilmarnock and Loudoun has found my arguments somewhat attractive, but I will not abuse his encouragement by continuing for too long. Unlike other Committee members, whatever Greek I learnt has long since been forgotten, but I am always advised to beware of gifts in the hands of Greeks. If the hon. Gentleman forgives me, I will watch him with care because I know that he is a canny operator and that, if he offers me gifts, I will look at the wrapping carefully.

My point, which I have made perhaps too laboriously, is easy to understand. I cannot tell whether it commends itself to the Committee, but I hope that it does, because I do not think that my arguments are so outrageous as to persuade the Solicitor-General that I want to undermine the statute. I do not want to do that, nor undermine the Bill, because, if I am to be consistent in my desire for an ICC, I must allow Parliament to have a legislative vehicle to achieve ratification.

I will end where I began, by making a brief reference to the discussion in the other place. On Report, Baroness Scotland of Asthal, a fellow bencher of the Middle Temple, said:

``The ICC Bill is designed to enable the United Kingdom to ratify the Rome Statute of the International Criminal Court. As a number of noble Lords have said, that statute makes it clear that state parties are expected to comply with requests from the ICC for arrest and surrender.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 373.]

The noble Lady is right, but only to a certain extent. She was literally right, but we in Parliament should not allow ourselves to fetter our political masters. By our modest amendments, we could achieve two good things: first, the ratification of the treaty through the passage of the Bill as amended; and secondly, the right to hold our heads high in the international community as Members of a Parliament that has thought carefully about the manner in which it wishes to ratify the statute of Rome.

Mr Robert Maclennan (Caithness, Sutherland & Easter Ross, Liberal Democrat)

I propose to speak briefly to the amendment, in part to avoid the possibility that members of the Committee might think that I am indifferent to its proceedings or that I in any way concur with the arguments that have been put forward by the Opposition in respect of this group of amendments. On the basis of the discussions that we have had already, I am confident that the Minister will deal adequately with the amendments when he replies.

This important group of amendments, if accepted, would constitute an exceedingly damaging attack on the nature of our commitment to the statute of Rome. They aim to change the nature of the Bill by granting greater discretion to the Secretary of State and courts. Notwithstanding the attractive way in which the hon. and learned Member for Harborough (Mr. Garnier) sought to summon up exemplification of the circumstances in which it might be appropriate for Ministers or courts to exercise discretion, it must be recognised that the amendments run entirely counter to the undertakings that the Government, in the exercise of their prerogative power, have entered into on behalf of this country.

There has been criticism of the extent to which the Bill allows Executive discretion. The Law Society expressed concern and Amnesty International stated:

``the consequences of a discretionary decision, possibly taken on political grounds, could result in a failure to bring to justice persons suspected of what the ICC Statute calls `the most serious crimes of international concern'.''

There has been some examination in another place of the precedent statutes in New Zealand and Canada, which allow some degree of discretion. However, expanding the role of the Secretary of State and the courts as envisaged by the present group of amendments would lead to a failure on our part to fulfil the obligations of the statute. It would send precisely the wrong signal about the nature of the ICC to other countries that are contemplating ratification.

To take one example, the first of the amendments would give the Secretary of State discretion to decide whether to forward an ICC request for arrest and delivery to the appropriate judicial officer; in other words, it would allow the Minister to block an ICC request from the outset. The terms of the statute applying to the arrest and delivery of an individual, subject to an ICC request, do not leave any scope for the exercise of such discretion. Article 59 of the statute of Rome states:

``A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.''

It may be argued that that does allow some latitude to adjust our laws.

Baroness Scotland relied on article 89 when rebutting arguments similar to those advanced by the hon. and learned Member for Harborough. That article states:

``States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

That establishes, and it is the clear meaning of the statute as a whole, that co-operation with the ICC is not intended to be discretionary. If the amendments were accepted, future Governments of the United Kingdom would have the power to harbour suspected offenders against international criminal law as encapsulated in the Rome statute. It would allow us to engage in sham trials—a more real theoretical proposition than many of the fanciful suggestions of the Conservatives. Their amendments would allow the improper refusal to deliver an individual to the ICC.

Mr Edward Garnier (Harborough, Conservative)

The right hon. Gentleman was not present this morning, so he has not heard the Minister of State's response to my hon. Friend the Member for Reigate. The admonition that we received from the Minister was that we should have confidence and trust in the yet to be created ICC. It is difficult to trust something that is not yet in existence, but the Minister made a legitimate point.

The right hon. Gentleman is falling into the same trap that we were accused of falling into this morning—of not having trust in a future institution, whether a future Secretary of State, Parliament or judicial system in this country. As my noble Friend, Lord Howell said on Report in another place:

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

Does the right hon. Gentleman not have sufficient faith in the ability of this Parliament and our courts to behave properly and respect international obligations? The amendments would introduce only an element of discretion; cannot the right hon. Gentleman allow for the possibility of exercising it in a wholly proper manner that is not inimical to the spirit of the Rome statute?

Mr Robert Maclennan (Caithness, Sutherland & Easter Ross, Liberal Democrat)

I am more interested in complying with the letter of the law when that letter is clear than with its spirit. It seems perfectly clear in this case. We also have more confidence in the plain meaning of international legislation to which we have given assent than in predicting the tergiversations of future Executives, particularly when the issues at stake are highly political and discretion would be subject to political pressures that might prove difficult to resist without the support of the law to which the country has given its firm assent. In other words, discretion given to Ministers could, in the circumstances described by the hon. and learned Gentleman, prove to be an embarrassment rather than an advantage.

These matters should be put beyond debate, because I see no reason to believe that the institution that is in the process of being created will not perform its task responsibly and in accordance with its founding statute. The pressure of international public opinion on it to do so will be enormous and, in my judgment, reliable. The international courts that have been set up in the past by the international community's agreement have shown a robust ability to withstand the politicisation that has been regarded as sufficiently serious to merit importing these derogations. We should be clear that what we are talking about would constitute a derogation from the statute of Rome.

The group of amendments exemplifies the risk of detracting from the valuable work done by the British Government and British negotiators. They risk sending entirely the wrong signals at a time when a number of countries are considering signing up to the statute. If we in Britain, who have been prepared to live by the rule of international law, seek to dilute it by making it subject to domestic political equivocations or Executive discretions, we could start a process of questioning that ultimately threatens the agreement that gave rise to the statute of Rome. It is very much in the interests of the British people and nation to see it implemented as early as possible.

I find it unattractive that the Conservatives constantly presume an opposition between national interests and the interests of implementing the treaty. I perceive no such opposition. To my mind, the treaty's implementation is precisely in the interests of this country, which has, like others, suffered the sort of international crimes that it is part of the statute of Rome's purpose to deter by the very existence of a mechanism for dealing with them.

Mr Gerald Howarth (Aldershot, Conservative)

I realise that the right hon. Gentleman has been unable to attend all our proceedings, but he knows that we share his belief that action must be taken against those responsible for atrocities. He will also be aware of the concern expressed by the Chief of the Defence Staff, which is one reason why some Conservative Members are anxious to ensure that we explore all possible consequences of the legislation—even those that are unintended. The Committee's job is to challenge the Bill, not simply to let it rush through on a fair wind.

Mr Robert Maclennan (Caithness, Sutherland & Easter Ross, Liberal Democrat)

I have no quarrel with the scrutiny process in which the Opposition are engaged, nor do I suggest that close consideration of the Bill is not Parliament's duty. I am saying that the arguments that have been deployed in support of the amendments, to which I am confining my remarks, do not carry weight with me for the reasons that I have given. I hope that the Committee will see fit to reject them.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I hope that mine will be a relatively short contribution. The hon. and learned Member for Harborough has brought to my attention something that I had not seen in the statute. I shall not support his amendments, which will come as no surprise to him, but he uncovered something that requires an explanation.

As I understand it, clauses 2 and 3 were designed to meet our obligations under article 89. To understand those obligations one must look at other articles of the statute. I do not propose to do that because the hon. and learned Gentleman covered all of those. If I misrepresent him he can intervene to explain where I am wrong, but his argument appears to be that those obligations are qualified in that states parties are obliged to comply with requests for arrests and surrender only in accordance with the provisions of that part of the statute and

``the procedure under their national law''.

That is the important phrase. I think that he is arguing that there is nothing to stop us, as a sovereign state, creating a procedure under our national law that allows a degree of discretion.

Having examined some of the contributions made in the other place I do not think that Baroness Scotland disagrees with that. She chooses her words carefully. She argues that it was not intended that the statute would be operated on a discretionary basis in relation to article 89. That is her interpretation of it. We do not wish to operate it on a discretionary basis. I categorically agree with that and to that extent I agree with the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

I cannot think of any circumstances in which we would want to operate this part of the statute on a discretionary basis, if warrants had been properly granted either for the pre-trial procedure or on conviction by the ICC. I sought to test the hon. and learned Member for Harborough by asking him to expand on that part of his argument. I respect his argument, but I do not think that advancing an ad hominem argument assists him in any way. It does matters not whose arrest is being sought, but the circumstances in which the arrest is sought, the reasons why and whether the warrant was properly granted.

We may have to envisage circumstances in which the arrest of a head of state may be sought. A former head of state has been arrested and brought before an international tribunal in Rwanda, and other senior politicians have been treated similarly. I would prefer it if we could envisage a set of circumstances where a properly granted warrant needed to be subject to some form of discretion in the United Kingdom, but I cannot think of any such circumstances at present. I have confidence in the future of the ICC and I think that it will develop a robust jurisdiction. I believe that warrants will be properly granted and there are many safeguards and procedure in the statute that require that. For those reasons I cannot support the amendment.

I said that there was something in the hon. and learned Gentleman's argument. In article 89, it appears that the court is given a level of discretion in relation to the transmission of warrants that I now do not understand. The first sentence of article 89.1 reads:

``The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State''.

If the ICC is truly to be an international court that operates against the sort of people that we want it to and if warrants are sought and granted properly, why does it require discretion about the transmission of that warrant to the country in whose jurisdiction the person whose arrest is sought lives?

Sitting suspended for a Division in the House.

On resuming—

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Before the suspension for the Division, I noted that article 89 gives the court an unqualified degree of discretion in relation to the transmission of a request for arrest and in relation to the transmission of a warrant. I do not fully understand why that is there, nor do I think that it is warranted. It has been suggested that one of the reasons why discretion is necessary is that the court may, under article 58.7, seek to proceed in the alternative method, by issuing a summons as opposed to a warrant. However, as the request for a summons would be instigated by the prosecutor, the necessary change would also have to be instigated by the prosecutor.

If a warrant existed, the prosecutor would presumably ask the court to discharge the warrant, as can be done under other statute provisions. I do not see the court granting a prosecutor both a warrant and a summons in relation to the same person. Therefore, the reason that the court needs the discretion cannot be that the court may choose to proceed with a summons. The court cannot under the statute choose to proceed by summons on its own motion. It can do so only on the motion of the prosecutor. So that argument does not stand up.

There may be circumstances in which a court chooses not to exercise a warrant or to transmit a warrant to be exercised to another state. As has been pointed out to me, the person sought may be in the territory of a non-state party. To try to have him arrested in those circumstances by an unco-operative non-state party would merely be to alert him to the fact that he was being sought and that a warrant was out for his arrest. In any event, it is unlikely that the court would be able to grant warrants without the people who were likely to be sought by the court having some indication that they were being sought for the purpose of arrest. It is to be hoped that those who are refugees from the court will only be able to seek any sort of haven in countries that are non-state parties. So that argument is not strong.

Those are circumstances in which the court might decide to exercise some discretion in relation to a particular warrant. However, what concerns me is that the statute appears to give the court an unqualified discretion on transmission. I thank the hon. and learned Member for Harborough for pointing that out to me. I ask the Minister when he replies to address the same question I posed to the hon. and learned Gentleman. In what circumstances does he envisage a warrant for arrest properly being granted for a person suspected of such crimes but a court exercising its discretion not to transmit that warrant to a state party in whose territory the person sought might be?

How can we be assured that, if there are circumstances in which discretion would be appropriate and legitimate, the court would be confined to operating that discretion only in such circumstances? Might we not find ourselves in future faced with a court that has an unqualified discretion in relation to the transmission of warrants and that is, because of a procedural flaw, subject to just the sort of political pressures from which we all hope an independent court is immune?

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

I shall invite the Committee to resist the amendments that attempt to introduce a discretionary element into the transmission of the ICC request for arrest and surrender to the appropriate judicial officer.

The first element in the argument is the point that was raised most succinctly by the right hon. Member for Caithness, Sutherland and Easter Ross, who pointed out our international obligations under article 89 of the statute. The key words in article 89 are in the last sentence of paragraph 1:

``States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

The language is mandatory: states are obliged to act. As the hon. and learned Member for Harborough pointed out, there is discretionary language in other parts of the statute. There is also important mandatory language elsewhere in the statute. My hon. Friend the Minister of State referred to article 17; the mandatory language there says that the court shall not exercise jurisdiction if a national court is willing and able to act. I referred to that important protection in the previous debate. That is mandatory, as opposed to discretionary, language.

My hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) raised several issues about other parts of article 89. He pointed out that the opening sentence of paragraph 1 is:

``The Court may transmit a request for the arrest and surrender''.

He was puzzled and asked why there is discretionary language in respect of the ICC transmitting a request for arrest and surrender. He gave several possible answers in terms of the alternative procedure by way of summons under article 58. He also gave the example of the unco-operative non-state party, and one can envisage other examples.

My hon. Friend asked whether the court might not abuse such discretion by not proceeding if it were subjected to political pressure. The court will act in accordance with law that will build up over time, as is always the case. The hon. and learned Member for Harborough raised the issue, in the domestic context, of the discretion of the prosecution to proceed. Yes, there is a certain element of discretion, but in exercising that quasi-judicial function, the prosecution—the Director of Public Prosecutions, the Attorney-General, or myself as Solicitor-General exercising our statutory functions to give consent for prosecutions—acts in accordance with law. The discretion is not completely open but is bounded by law.

The reply to the argument of my hon. Friend the Member for Kilmarnock and Loudoun is that, even if the court has such discretion, an obligation is triggered once the court acts. That is our concern about the Opposition amendments: they would introduce discretion at that point. We do not find that discretion to be in accordance with our international obligations under article 89 of the Rome statute, the language of which is mandatory. My hon. Friend perceptively pointed out that the last sentence of article 89.1 includes the phrase

``in accordance with...the procedure under their national law''.

Those are descriptive words. They simply say that, just as prosecutors must act in accordance with law, so must the state do certain things in accordance with its national law. Those words do not give state parties power to introduce other hurdles to the process.

6.30 pm

All documents like the Rome statute are drafted against a certain background, and the background in this case was the method used to set up the international tribunals for former Yugoslavia and for Rwanda. Those tribunals were implemented in our national law in a way that did not provide for discretion, which leads me to question the Opposition Members who have tabled amendments. Schedule 4(1) of the statutory instrument—SI 716 of 1996—that introduced the tribunal for former Yugoslavia is the equivalent of clause 2 and states:

``Where the Secretary of State receives from the International Tribunal a warrant of arrest issued by the International Tribunal . . . the Secretary of State shall transmit the warrant to an appropriate judicial officer''.

Schedule 5(1)(b) of that order—the equivalent of clause 3—includes mandatory language about provisional warrants of arrest. On receiving a request,

``the Secretary of State shall transmit the request to a constable and direct the constable to apply for a warrant for the arrest of that person.''

That is the experience of the use of mandatory language not providing for a discretion in international matters. That approach, mandated by the treaty, is the one that we are introducing. I commend the previous Government for introducing the 1996 order, some of the provisions of which we are mirroring in clauses 2 and 3. Article 89 obliges us to act, and we are acting in accordance with the precedent of the tribunals for the former Yugoslavia and for Rwanda.

Various issues raised in this interesting debate have returned us to the Opposition's fundamental concern. They fear that the ICC will act in a manner that is abusive of its powers. We think that the protections in statute and in the Bill are such that there will be no abuse. My hon. Friend the Member for Kilmarnock and Loudoun referred to article 17, which makes it clear that the court shall not have jurisdiction if we are willing and able to deal with matters. That is why part 5 of the Bill covers offences under domestic law. Our courts can deal with relevant cases and if we prosecute, or decide not to, in accordance with law, the ICC will not be able to trump our decisions. If we decide not to prosecute, our decision will not be trumped.

The Opposition's amendments illustrate another problem with their approach. We would not like to think that other states could introduce discretions because, as my hon. Friend the Member for Kilmarnock and Loudoun mentioned, it is easy to imagine the equivalent of our Secretary of State in Serbia exercising discretion to prevent proceedings against a future Milosevic in accordance with ICC law. The discretion exercised by a state official might be such that a future Milosevic might escape justice. Such discretion would be contrary to our obligations under the treaty. The policy arguments are in favour of not having that discretion.

We will, however, be in a position to investigate cases within our jurisdiction. Sufficient protections exist in the statute and the Bill—for example, in clause 5(4),—to allow us to protect our national interests. We will act in accordance with law and deal with offenders under our own provisions; the ICC will not be in a position to trump us. The arguments are clear: we will have an international obligation, and we are simply doing what the previous Government did in relation to the two previous international tribunals. There are good policy reasons for not introducing a discretion that would allow the Executive to impede the procedures set out in the Rome statute.

Mr Edward Garnier (Harborough, Conservative)

I have listened with great interest and considerable care. This has been a good debate, and my contributions have added to that. I am grateful for the cameo performance from the right hon. Member for Caithness, Sutherland and Easter Ross and hope that the hon. Member for Winchester (Mr. Oaten) will have a chance to read his comments. I am sure that the right hon. Gentleman will be asked to campaign in Winchester on the basis of his comments.

As always, the hon. Member for Kilmarnock and Loudoun heightened the level of our discussions, for which I am grateful. However, he persuaded me to fall into error: I mentioned my lack of Greek, when I should have said Latin. I shall read the quote that I was grasping for earlier. I acknowledge that some hon. Members knew that I was wrong but were too polite to intervene to correct me—or procedurally barred from doing so. From my experience working in the Foreign Office for Sir Alastair Goodlad, the former right hon. Member for Eddisbury, and for my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis), who were Ministers there, that the collective knowledge of all things among Foreign Office officials is unbounded.

I should have said,

``Equo ne credite, Teucri.

Quidquid id est, timeo Danaos et dona ferentes'',

which, as you will know Mr. Cook, is from book two of Virgil's Aeneid, beginning at line 48. Virgil was advising,

``Do not trust the horse, Trojans.

Whatever it is, I fear the Greeks, even when they bring gifts''.

The hon. Member for Kilmarnock and Loudoun is not, so far as I know, a Greek. He is certainly not a horse. Although he is, I am sure, a keen adherent of new Labour, he is anything but wooden. His mild independence of thought and speech this afternoon has raised him in my estimation, which will probably ruin his career. I am grateful for his contribution. Even if I have not wholly persuaded him of the good sense of the arguments behind our amendments, I may at least have persuaded him that, from time to time, even a Conservative Opposition can come up with ideas worthy of thought.

The Solicitor-General has given his response. The question is one of balance. Either one accepts that discretion should be wholly limited and left in the hands of the court, under the Rome statute, or, as in our view, one has confidence that our own institutions and Executive—both the current and succeeding ones—will behave properly in any given circumstances.

I have no doubt that the current Secretary of State would behave entirely properly if faced with a problem under clause 2 or clause 3. A Conservative Secretary of State would undoubtedly do so. That is not the issue. The issue is whether we have the confidence to vote for, and to celebrate, our own institutions or whether we are timid and feel obliged, despite the arguments that I have put forward—which would allow us to exercise more discretion than the Government apparently want—to exercise our independent decisions only under the perfectly laudable statute of Rome.

The Solicitor-General's reference to Milosevic and Serbia was rather confusing because we are not legislating for Serbia but for the United Kingdom. What is done in Serbia is a matter for its people and Parliament. We should leave Mr. Milosevic in the prison in which he is currently staying, and not allow him to interfere with our decision.

I am sorry to rain on the Government's parade. In a private conversation not long ago, the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leeds, West, said that the Committee was too good-natured. I am about to wreck that by inviting the Committee to express an opinion on the amendments that we have put forward.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.