Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I beg to move, That the clause be read a Second time.

Mr Frank Cook (Stockton North, Labour)

With this we may discuss the following: new clause 5—Ratification: reservations and declarations—

`The Secretary of State shall not ratify the ICC Statute unless—

(a) a report is laid before Parliament, setting out—

(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,

(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and

(iii) that report is approved by each House of Parliament.'.

New clause 7—Declaration upon ratification—

`This Act shall have effect subject to the making of a declaration by Her Majesty's Government upon ratification, to be deposited with the Secretary General of the United Nations, as follows—

``Her Majesty's Government, being cognizant of the declaration upon signature by the Government of the State of Israel, will itself reject attempts to interpret its provisions in a politically motivated manner against actions of the United Kingdom and its citizens. Her Majesty's Government hopes that the United Kingdom's expressions of concern at the consequences of politicization of the intended central impartial body will help prevent the undermining of the objectives of the Statute.''.'.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I thank Ministers for proposing that the discussion of the new clauses be brought forward, as it will ensure that we have the opportunity to examine properly the important issues and principles that they raise, which might otherwise have been addressed only at the tail end of the scrutiny of the Bill. I hope that discussing them at this stage will mean that they are not rushed through, but thoroughly aired in Committee. The issues that they raise have been discussed in another place, but bear further discussion in Committee, not least because of the concerns raised by those observing our proceedings, of whom I know the Minister is aware.

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

I did not formally propose to bring forward the new clauses, but it is fair to say that we had a conversation with the Opposition in which they suggested that it made more common sense to deal with them at this juncture. We reached mutual agreement on that point, as it will enable us to raise some of the important matters discussed in the other place in the context of the Bill before us. Otherwise new clauses will be tagged on at the end, after the debate is already halfway through. That was the amicable arrangement to which we came, and why we are discussing them now.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I do not dispute that at all—quite the reverse. There was merit in the way in which business was ordered in the other place, whereby the new clause came before consideration clause 1, rightly taking precedence, and was discussed at the beginning of the Committee rather than halfway through. However, I agree that the compromise seems to be the most sensible arrangement. I am glad that debate on the new clause has fallen to be discussed today, rather than on Thursday afternoon when the guillotine falls. While on that subject, I cannot help but say that it is a shame that we had to have a programme motion. Some accommodation on the Bill's timetabling could have been reached between the Front Bench members of the Committee and avoided the heavy-handed mechanism of the programming motion that now appears to attach to every Bill.

Mr Frank Cook (Stockton North, Labour)

Order. We are in danger of being unduly repetitious. Please can we move on to the new clauses?

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I would hate to repeat myself, Mr. Cook. I would hate to repeat myself. [Laughter.]

New clause 1 relates to the jurisdiction of the court. The new clause states:

``.—This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.''

The new clause would secure us a seven-year opt-out from the offence of war crimes, as has happened in other countries. The matter is of such significance that we must consider article 124 of the Statute, which is described as the ``Transitional Provision''.

Throughout debate in the other place, we felt that the Minister failed adequately to answer the concerns expressed by ourselves and others. We certainly would not want to give the impression that we do not welcome measures that will bring to book those who have committed crimes against humanity, but when the treaty on which the legislation relies—indeed, which it is designed to duplicate, without any changes—contains such a provision, it seems a crying shame that we do not use the article provided, which will give the French a seven-year opt-out, during which time they will have the opportunity to see how the court progresses. If we were to adopt the same route, it would ensure that British citizens, and particularly members of our armed forces, were protected in a way that strikes us as desirable.

Article 124 states:

``Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.''

Article 123.1, states that:

``Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.''

The Government set out their position on the seven-year opt-out in characteristically brief terms. They appeared to have a closed mind and to be unwilling to discuss the matter. I refer to the International Criminal Court consultation on draft legislation, published only in August 2000 by the Department, in which the draft Bill was set out. Page 7 states:

``The Bill makes no provision for the UK to take advantage of the seven-year opt-out for war crimes provided for in Article 124 of the Statute. The UK does not intend to take such an opt-out.''

There was no explanation.

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

The explanation is self-evident. We are content with the definition of war crimes set out in article 8 of the statute. That is already written into British law.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

Why could that explanation not have been appended to the document? While we discuss the articles and choose, in the Government's wisdom, not to take advantage of the seven-year opt-out, the French Government, in their wisdom, have examined the same articles and ratification process and decided to take advantage of the opt-out. The matter was raised with the Foreign Office in a written question, answered on 10 November 1999. When the Department was questioned about the opt-out prior to the publication of the consultation document, the answer was characterised by a brevity that would be commendable in some instances, but that was quite inexplicable in this one. The then Foreign and Commonwealth Office Minister responsible, the hon. Member for Neath (Mr. Hain), said:

``We have no plans to use Article 124 of the International Criminal Court Statute to opt out of the Court's jurisdiction over war crimes. We hope as few countries as possible will take advantage of this provision.''—[Official Report, 10 November 1999; Vol. 340, c. 546.]

That gave a small glimmer of light, as it gave the impression that that Minister sought to influence other countries involved in the ratification process not to take advantage of article 124 of the Rome treaty. That is an exception: in all other instances at all other stages of all debates on the issue, the Government have insisted that we cannot make changes because we must embrace the statute of Rome and nothing but the statute of Rome. However, the Government have now suddenly decided to dismiss article 124 out of hand. That seems a logic gap.

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

It is not so much a logic gap as a question of negotiation. The statute was the result of negotiation between many countries. We said that we could live with it but that if that article were included, we did not intend to use it ourselves. We do not encourage others to use it but if it is absolutely necessary for it to be written into the text and that can be done without denaturing the statute, we will agree to it because we need a consensus to get the court up and running.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

That seems a remarkable compromise on the Government's part. They wanted the whole statute and nothing but, but they are now willing to sit back and allow one of our close associates within the European Union—France must be so described—to take advantage of a provision that gives protection only to its own citizens and armed forces. That is a key point. The Government have not explained why they are not taking the seven-year opt-out—they just say, ``That is the way it is; this is what we are doing. We are quite satisfied and happy.''

We must consider the way in which other people perceive the Government's position. It is significant that there has been support for the spirit of new clause 1 among the Government Benches in the other place. Lord Shore of Stepney, who is a force to be reckoned with and a man of considerable experience in both Houses, was moved to take part in the debate. Commenting on new clause 1, he said:

``The minor suggestion made by the Opposition Front Bench is just an effort to do their best with what apparently is an inviolable convention in a Bill that must in no way be tampered with and amended, even where the most obvious sense and intelligence, based upon our own experience, tells us that some of these clauses are ridiculous. Unless one lives in a world inhabited only by international lawyers,''

—goodness forbid—

``one will recognise that without any difficulty. I am sorry to speak with vehemence on this matter.''

That is a powerful comment from someone for whom I know the Minister has a great deal of respect. Lord Shore went on:

``I will not have our people dragged before some court because we have used depleted uranium, which many people believe to be poisonous.''.—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 360.]

Lord Shore was expressing an impartial view on why we should adopt the seven-year opt-out. The amendment was put to the vote in the other place. The result was 69 contents and 122 not contents—53 against, if my maths serves. Lord Shore went against a three-line Whip and voted with the Conservatives. [Interruption.] I make no apology for praying him in aid because it is important to listen to his views. The Minister must listen more carefully to the views of senior statesmen in his party rather than always give attention to the Opposition. I am interested in the noble Lord's comments on that sensible Opposition suggestion.

There is a great deal of concern in the armed forces. My hon. Friends will want to reflect that in their contributions on the new clauses when they have the good fortune to catch you eye, Mr. Cook. We need only look at some of the commentary surrounding the passage of the Bill to see that the concerns have been aired in public should rightly be discussed in Committee. Both The Daily Telegraph and The Guardian report on their front pages of 7 March the concern felt by top military commanders that the proposed ICC could lead to British troops being prosecuted for war crimes and that it could prevent British peacekeepers from carrying out their tasks effectively. The Guardian reported a senior defence source as saying:

``Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals''.

Far be it from me to speculate on the identity of that unnamed defence source, but I am sure that The Guardian stopped short of printing lies and that the matter was discussed at length.

Mr Crispin Blunt (Reigate, Conservative)

Perhaps it would assist my hon. Friend to know that other newspapers referred to

``sources close to the Chief of the Defence Staff''.

We all know what that means.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I am grateful to my hon. Friend. I shall not press the matter any further. There is a serious point to be made. Senior defence personnel are reluctant to put their heads above the parapet. According to The Guardian that senior defence source added that

``ministers were `very aware' of such a prospect. He said he was concerned in particular about conflicts and operations, short of a full-scale war, even—paradoxically—where British forces were engaged in support of the UN.''

It would be a turn-up for the books if British troops deployed to support the UN in Sierra Leone or elsewhere faced prosecution as war criminals under the Bill.

I know that the Minister will respond properly. I am sure that he will tell us that there is nothing to worry about, but it is important that we have this debate because many men and women think that there is something to worry about. Their minds must be set at rest, not least the minds of those who put their lives on the line every day for this country and its interests. I cannot stress too much the importance that I attach to the Minister's response.

Another senior defence source said that:

``future rules of engagement could, for instance, prevent a British warship from attacking a hostile vessel until it was too late.''

The Minister must address that issue in detail. If military or naval commanders claim that a British warship could be prevented from attacking a hostile vessel, he must tell us why that would not be the case and how our troops are protected in that instance.

Others have raised the case of Senator Pinochet. Michael Caplin, his former lawyer, questions how the Prime Minister could defend himself if he were charged with bombing targets in Kosovo in the knowledge that civilians might be killed. As we are being so magnanimous as to introduce a statute into this country's legislation that will make all our politicians, soldiers, airmen, serving naval officers and ratings subject to this law? An important question must be answered in connection with new clause 1. Our Prime Minister may find himself a subject of the legislation.

On 7 March, The Guardian reported that

``the Foreign Office insisted . . . that the treaty establishing the court merely''

incorporated the

``existing tenets of international law. Rules of engagement for British commanders were always consistent with international law such as the Geneva conventions''.

The Department is reported to have said that:

``Safeguards have been inserted into the bill to prevent politically-motivated prosecutions . . . In the first instance any investigation will be carried out by authorities in the country whose nationals are accused of wrongdoing.''

That is fair enough, and no more than I would expect a spokesman for the Foreign and Commonwealth Office to say. However, there is no doubt that senior defence sources made it

``clear that, in their view, the safeguards are not sufficient'' .

One senior official spoke of the need to ensure

``that there is a framework that does not prevent us from doing what we set out to do.''

He went on to say that:

``the new rules could make new types of weapons illegal. In other walks of life, new regulations were being introduced with very good reason to make the workplace safer'',

but that the military

``should, not be forced to follow . . . slavishly . . . bits of European legislation''

Will the Solicitor-General tell us what new types of weapons may be made illegal under the legislation, and assure us that we are not following slavishly something that will inhibit the way in which this country conducts its business diplomatically and, by virtue of the deployment of its armed services, to the greater good of the interests of British citizens and those we seek to protect in other territories?

That is not the end of the matter. The article continues:

``Another military source cited as an example rules which might prevent helicopters from exercising—or even training for rescue missions''

in bad weather, for example. I also seek the Solicitor-General's assurance on that matter. I am loth to deploy more quotations, but it is obvious that the former Chief of Defence Staff, Sir Charles Guthrie, and his successor, Admiral Sir Michael Boyce, are concerned about what they see as an increasingly litigious society. We must be careful that we do not defer too much to political correctness with the result that we hamstring effective and efficient tools of state such as the armed services. In the minutes of evidence and appendices to report of the Select Committee on the Armed Forces Bill published on 13 March, Admiral Sir Michael Boyce, on being questioned about the ICC Bill, is quoted saying that:

``I do know a bit about this Bill and I think we need to be very careful indeed that when the Bill is taken through Parliament, we do not put ourselves in a situation where a junior person carrying out orders which he believes to be entirely proper can subsequently find himself in front of the International Criminal Court. So far I have been told that this is unlikely to happen because the national court would have the opportunity to investigate the case if it were pointed in that direction by the ICC.''

I need assurances from the Solicitor-General. We must be careful as the Bill goes through Parliament.

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

The hon. Lady referred to the crucial phrase:

``if it were pointed in that direction by the ICC''

We must all bear in mind that it is United Kingdom courts which will take action first—that will be the usual procedure. Only if they are unable and unwilling to act would such matters go to the International Criminal Court.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

That is what Admiral Sir Michael Boyce said.

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

Admiral Sir Michael Boyce has not got it quite right.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I shall give the Minister the opportunity to elaborate on that in his response. On 7 March in BBC Newsline, the former NATO commander Admiral Sir James Eberle said that it was vital that commanders in the field should not be put in a position where they are concerned about what is right and what is wrong at the expense of risking their own lives and those of the men they command. It is proper that we examine those reasonable worries of senior defence people, whether named or unnamed, given that Ministers are aware that, if the wrong rules of engagement are set, commanders could find themselves liable to prosecution as war criminals—as was set out by an unnamed senior defence source. The Minister will need to make sure that the record is clear on such matters.

Will the Minister explain the position of the new European army? We are facing the prospect of a force that made up of soldiers, airmen, naval officers and ratings from many countries. A British soldier will be serving alongside a French soldier and they will be commanded by a European Union military planning centre. I am not making the political point that we are developing a European army that will be outwith NATO. That argument can be deployed in another place.

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

Is the hon. Lady aware that British soldiers have served under French command in Bosnia, fought alongside French soldiers in the Gulf and regularly undertake activities with French soldiers in NATO? What is the problem?

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I am glad that the hon. Gentleman does not perceive a problem. I hope for the same reassurance from the Front Bench. However, the ICC is not yet in existence, and the Bill is not applicable in such circumstances. Is he suggesting that the Bill should be retrospective? He should wait until I have deployed my argument, because I am asking questions that need to be answered.

If a European force is subject to the command of a European military planning centre and chain of command—I may not be using the correct military phrases; if not, I apologise to members of the Committee who have served in the armed forces—and a French soldier is sitting alongside a British soldier who is being told what to do by a European force, is the French soldier and not the British soldier subject to the seven-year opt-out? Will the French soldier be ordered to carry out the actions, because there will be no danger of him being brought to book under French statute? Why should soldiers in this country be disadvantaged vis-a-vis French soldiers operating in the same territory under a common chain of command?

Mr Crispin Blunt (Reigate, Conservative)

My hon. Friend has raised an intriguing question and we look forward to hearing the Minister respond to it. Many operations are carried out under international auspices, especially those of the European rapid reaction force. A European operation may be under the command of a Finnish general. If the Council of Ministers gave an instruction and actions were committed that amounted to a war crime warranting a prosecution by the ICC, who would end up being held responsible when, in executing a legal order, all parts of the chain of command are guilty?

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

It might come as a shock to my hon. Friend, but I do not know.

Mr Frank Cook (Stockton North, Labour)

Order. I find no one's head intrinsically offensive when looking at the rear of it, but I remind both Front Benchers that their remarks should be addressed to the Chair.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

No discourtesy was intended, Mr. Cook. I take your admonition on the chin.

Mr Frank Cook (Stockton North, Labour)

Which one?

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I shall let that comment pass. I do not know the answer to my hon. Friend's question. I could presume to give an answer, but, sadly, I am not in government and I am waiting for the Minister to reply.

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

I can help the hon. Lady—she does not need to wrestle with those questions. The ICC will not create new laws. If British soldiers break our laws, they will be brought to book under our laws, irrespective of whether the soldier is serving under a French, German or Australian command. If they break the law, they will be dealt with under British law, so what is the problem?

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I do not think that the Minister has even understood the problem, which greatly worries me. If a French soldier is standing alongside a British soldier, taking part in the same action, firing guns simultaneously, the British soldier would be subject to our legislation, but the French soldier could take advantage of the seven-year opt-out.

Mr Edward Garnier (Harborough, Conservative)

I do not want to distract my hon. Friend from her argument, but I can suggest an answer. The British soldier would, under the complementarity rule, be subject to the British courts first. If that proved unsatisfactory, the ICC would have jurisdiction. If the French soldier committed a war crime, he would be subject to French national law and would be tried under the French courts in Paris. He would not subsequently be extradited to the ICC if the ICC thought that the French had dealt with the matter unsatisfactorily. That is the answer to my hon. Friend's question. The Minister could have answered it, but was not perhaps up to speed.

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

I notice a wink in the hon. and learned Gentleman's eye.

Mr Edward Garnier (Harborough, Conservative)

Having cast that problem aside, I look forward to hearing what my hon. Friend has to say.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I am grateful to my hon. and learned Friend, who confirms that the French soldier has an advantage over the British soldier.

The treaty took many years to negotiate with the input of many people around the world motivated by the intention that eventually there would be a vehicle to ensure that the worst perpetrators of abuses on other human beings were, rightly, brought to justice. Considerable thought must have gone into article 124; it must have been put into statute with good reason. Although I share the Government's aims and objectives in wanting the ICC to come into existence, we should have considered article 124 more carefully and taken advantage of its provisions to ensure that our troops and citizens are protected during the court's emergent phases.

Mr Gerald Howarth (Aldershot, Conservative)

The French Government have entered not only reservations, but specific reservations. If the French Government were as confident as the British Labour Government that in no circumstances would their troops ever be arraigned before the ICC, they would have had no need to enter any reservations. Have they not entered reservations not because they know that they have initial responsibility for holding their own forces to account, but because they fear that there is a risk that their troops, acting in pursuit of the French national interest, would be arraigned before the court? I shall refer to those reservations if I catch your eye later, Mr. Cook.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I am grateful for my hon. Friend's intervention. I am sure that he will catch your eye eventually, Mr. Cook.

I have made my case for new clause 1, which is of primary importance. We would have expected article 124 to be fully incorporated in the measure, as was made clear by my noble Friends in another place and by the shadow Foreign Secretary, my right hon. Friend the Member for Horsham (Mr. Maude), on Second Reading. I hope when the Minister responds to the debate he will pay attention to our reasonable request to accept the new clause. It embodies the spirit in which the treaty was negotiated and placed before the nations of the world. I see no reason why we should disadvantage British citizens and the United Kingdom.

In 1999 the then Minister of State, Foreign and Commonwealth Office, the hon. Member for Neath, said that he hoped that as few countries as possible would take advantage of the opt out. What discussions were held between the Department and the French foreign office? It seems that the arguments deployed must have fallen on deaf ears. It would help the Committee to know what arguments the French and our Ministers deployed. Will the Minister tell us whether the other countries that are seeking to ratify the proposal have said whether they will incorporate article 124 into their legislation? Will the French stand in glorious isolation in offering protection to their armed forces and citizens?

Having spoken to new clause 1, I shall resume my seat and allow my hon. Friends to promote the other clauses in the group.

Mr Edward Garnier (Harborough, Conservative)

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

The hon. and learned Gentleman should be clear that reservations are not allowed and have not been made. France and New Zealand have made what are called ``interpreted statements'', which are not reservations because they do not change the statute in respect of those countries. There is a difference between ``reservation'' and ``interpretation'' and that is what France and New Zealand have exercised.

Mr Edward Garnier (Harborough, Conservative)

I note what the Minister says. That is the stance that the Government adopted in the other place.

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.