Mr Edward Garnier (Harborough, Conservative)

I beg to move amendment No. 20, in page 8, line 35, at end insert—

`( ) The Secretary of State shall not give directions for the execution of a delivery order where it does not appear to him to be in the public interest to do so.'.

The debate on the amendment will be short. However, its brevity should not deceive us as to its importance. My concerns can be expressed simply. Without such an addition to the clause, the Government would appear to be making an admission that it is no longer they—let alone Parliament—who will be the decision maker on what is in the public interest. On recent occasions, the courts have made it clear that, as a general rule, the Government of the day decide what is in the public interest in a given situation. Through the absence of the wording which I want to import into the Bill there will be a massive—but hidden—transfer of political and constitutional power to an extraterritorial body. The extraterritorial body concerned is a court—the International Criminal Court—rather than a Government or an international organisation of the character and nature of the United Nations or the European Union. The way in which that transfer is being effected may not have occurred to members of the public, still less to Members of Parliament, and possibly not even to all members of the Committee. Powers are being handed over wholesale to an extraterritorial body.

The clause states that

``The Secretary of State shall not give directions for the execution of a delivery order until after the end of''

a given period. It includes various other provisions relating to habeas corpus and a prisoner's rights to be released if he is wrongly apprehended, which is fair enough, but those are technical and legal procedural legal matters. However, in an echo of a previous debate, the Secretary of State has no discretion, either on his own behalf as a member of the Government or on behalf of the country, to say that the handing over of a particular person is not in the national interest. He is completely prohibited from exercising any discretion whatever as regards the handing over of an individual to that extraterritorial body in the event that the defendant does not come under one of the exceptions that we considered under clause 5, or cannot be released following a court hearing for habeas corpus.

It will no doubt be said—and I will have to take it on the chin—that that is just bad luck. The treaty that the Government have agreed says that the ICC has complete power over that aspect of our proceedings and nothing can be done about it. The treaty is the treaty: the statute of Rome cannot be amended by this Committee, let alone Parliament as whole—and I shall have to lump it. None the less, I want the Government to place their thinking about the clause on the record. Ministers should explain to the public why they are prepared to hand over those powers to that extraterritorial body. I shall be happy to listen to any explanation. On behalf of my constituents, I am extremely worried that the Government are prepared—not only through clause 12, but other clauses—to hand over willy-nilly huge domestic constitutional powers to an extraterritorial body over which Parliament has no influence.

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

The hon. and learned Member for Harborough (Mr. Garnier) says, rightly, that the amendment and his remarks echo previous debates. We have said that the United Kingdom has nothing to fear from complementarity. If we deal with our own nationals or residents and crimes against humanity—war crimes and genocide—on our territory, we have nothing to fear because the ICC will not have jurisdiction. We will not have to hand cases over to an extraterritorial body because we will deal with them ourselves.

The amendment would give the Secretary of State the power to decide whether there is a public interest dimension to the execution of the delivery order. As I have previously explained, that would be contrary to our treaty obligations: we would be in breach of our obligations under the Rome statute. It would frustrate the aim of part II of the Bill, which is to give effect to ICC requests in an expeditious and straightforward manner, and therefore I must resist the amendment.

Mr Crispin Blunt (Reigate, Conservative)

Will the Solicitor-General explain his position that the amendment would be in breach of our obligations under the Rome statute? Will he assure the Committee that the whole of the Bill is in line with such obligations? The amendments that relate to clause 23 were tabled to right the fact that the Bill is not consistent with our obligations. How can the Solicitor-General say that his is a consistent position? He cannot reject the amendment on the grounds that he has advanced, because that line of reasoning is not consistent.

Mr Gerald Howarth (Aldershot, Conservative)

I rise to support my hon. and learned Friend the Member for Harborough, and to suggest to the Solicitor-General that his answer is not satisfactory. He asserts that we should have no fear because of the principle of complementarity. We understand that, in foreseeable circumstances, crimes that are alleged against British citizens will be dealt with here. However, we all know that under article 17 of the treaty—``Issues of admissibility''—a case is inadmissible when is it dealt with by the nation state concerned

``unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute''.

In circumstances that we cannot envisage, the United Kingdom may, for reasons that are believed to be good and sound, be unwilling to prosecute. The amendment would allow a future British Government in such circumstances to safeguard our citizens' rights and support the national interest if they believed that an unfounded case had been made that we had failed to deal with the alleged crimes according to the principle of complementarity. The amendment does not threaten the Solicitor-General's aim to incorporate the treaty into our national law, but it would provide a safeguard for a future British Government to protect the national interest if a decision of the ICC were unacceptable to them.

Mr Edward Garnier (Harborough, Conservative)

I am grateful to my hon. Friends for Reigate (Mr. Blunt) and for Aldershot (Mr. Howarth) for their contributions. I am also grateful to the Solicitor-General for his response, because he revealed more than I had expected by making it clear that the Government have nothing to say about the protection of the British interest. His response to my concerns was threefold. First, he assured me that there is nothing to fear. However, it is not a matter of fear, but of understanding the constitutional position of a Member of Parliament and, more particularly, of a Secretary of State in a British Government whose primary interest must be to protect the national interest—while, of course, always acting in a civilised and lawful manner. Although, we do not expect our allies and treaty partners to behave adversely towards us, we are entering into a treaty for all time, and the Committee should not therefore accept the diminution of our country's independence on the basis that we have nothing to fear.

The Solicitor-General's argument also relied on the concept of complementarity. I accept that that principle is written into the statute, and that the ICC will not have jurisdiction over defendants in our country unless we do not properly deal with them in our courts. However, the Government of the day should always retain a sufficient ambit of independent action to protect British interests, and the statute and the Bill amount to a complete denial of our national sovereignty. It can be argued that a country's sovereignty is always eroded when it signs a treaty, but that does not answer my point.

The Solicitor-General's final point was that the amendment would frustrate the Bill. It would not—although I accept that it would frustrate the treaty, because it directly breaches the statute of Rome. However, my intention is not to tilt at windmills, but to expose a weakness in the Government's thinking with regard to the making of the treaty. I therefore regret that my questions have not been answered adequately. However, gesture politics have only limited value—especially now, when parliamentary business is rushed—so I will not divide the Committee. However, I wish to express my disappointment about how the matter has been handled. I hope that it will not come back to haunt the Government or any of their successors that our constitutional and political powers are being transferred wholesale, but in a quiet little way, to an extraterritorial body—not an intergovernmental body, but a court. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Gerald Howarth (Aldershot, Conservative)

I invite the Solicitor-General to clarify one point arising from the clause. Subsection (3) deals with the appeal process for habeas corpus. It states that the proceedings for habeas corpus should

``be treated as pending until they are discontinued or there is no further possibility of an appeal. For this purpose any power of a court to allow an appeal out of time shall be disregarded.''

Will the Solicitor-General explain why the power of a court to consider an appeal out of time shall, on this occasion, be disregarded? Surely it should reside with the court itself to determine whether an application should be entertained out of time?

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

First, in answer to the point made by the hon. Member for Reigate in the debate of the amendments, the Government take the view that the Bill is consistent with our obligations under the Rome statute and under international law.

On the point made by the hon. Member for Aldershot, I assure the Committee that in no conceivable circumstances would we be unwilling to act. Article 17 of the statute defines unwillingness to act in terms of shielding a person or delaying in such a way as to defeat the object of the legal process. There are no conceivable circumstances in which the United Kingdom would act in that way.

Mr Gerald Howarth (Aldershot, Conservative)

I am sorry to press the Solicitor-General on this matter. Sitting here today, we cannot conceive of circumstances in which a British subject who has committed an atrocity would not be held to account by a British court. However, there might be a clash between what the ICC perceives as willingness to proceed and what we believe is justified. The Solicitor-General appears to be taking the matter completely on trust—a trust that will bind successive Governments in circumstances that we cannot possibly foresee. It is our duty to our own people and especially to our armed forces to ensure that we provide some protection.

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

The issue is one of those on which shall simply have to disagree. The same applies to the points previously made by the hon. and learned Member for Harborough. We take a different view, but we do so on firm grounds, because article 17 of the statute is clearly drawn. The ICC could not conceivably adopt an interpretation of the clause that would not recognise justice as it is done in this country. On that basis, I think that I am justified in assuring the Committee as I have done.

The hon. Member for Aldershot raised a specific point about the time period. It reflects the provisions in other legislation, such as the Extradition Act 1989, in which the time limit is absolute and the court has no discretion. We fear a situation in which cases might drag on for years, which is why the court has to act in the strict time frame set down in the clause.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Clauses 13 to 21 ordered to stand part of the Bill.