Mr Crispin Blunt (Reigate, Conservative)

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

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

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

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

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

Mr Crispin Blunt (Reigate, Conservative)

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

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

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

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

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

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

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

San Marino?

Mr Crispin Blunt (Reigate, Conservative)

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

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

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

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

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

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

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

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

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

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

Mr Crispin Blunt (Reigate, Conservative)

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

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

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

Mr Edward Garnier (Harborough, Conservative)

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

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

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

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

Yes, it is perfectly possible. I am familiar my noble Friend's words and I have discussed those matters with him. There may be a slight difference of emphasis, but it would not be practical to give similar powers to all the signatory states of a treaty such as the statute of Rome to allow their legislature to bring about the piecemeal disruption of a process agreed by a large number of states.

However, when the Government, who determine the response to any amendment proposed to the documents following the establishment of the ICC, are formulating that response, it is reasonable that Parliament should be informed and have the opportunity to debate, consider and give its opinion. I do not accept that Parliament should have a right to override: that would take us closer to giving this House the power of the Senate of the United States, to block by refusal of advice and consent an international engagement into which the Executive are willing to enter. My position is to some extent a halfway house. I think that the hon. Member for Reigate is recommending something that is closer to the power of the Senate of the United States.

Mr Crispin Blunt (Reigate, Conservative)

We do not have a system of separated powers as in the United States. The Executive here is present in Parliament; if they could not command a majority in Parliament for an amendment to the ICC, that would probably be a matter of confidence, triggering an election. I do not, therefore, accept the right hon. Gentleman's suggestion that we are setting up a body analogous to the United States Senate, as the American constitution lays down the separation of powers.

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

If we were to accept new clause 8 it would in effect give the Houses of Parliament the opportunity to defeat the wishes of the Executive. I do not think that that is desirable. Whether it would be a matter of confidence would depend on the attitude of the Government. A single defeat of the Government does not necessarily mean that they have lost the confidence of Parliament.

I have made my position clear and do not want to labour the point. The hon. Gentleman has triggered a useful debate and I hope that other Committees that are examining scrutiny of the Executive will return to the matter, especially in the area of treaties. The upper House considered the matter, but felt that it was not well placed to take up such scrutiny because of limited resources. I do not think that we should resile from the need to take the matter further as soon as possible.

Mr Gerald Howarth (Aldershot, Conservative)

The right hon. Gentleman has acknowledged that the debate is important. I have been interested to follow the arguments of the Liberal Democrat party, which I thought was in favour of greater openness and accountability. Undoubtedly, new clause 8, to which my name is also attached, goes some way to providing greater accountability, if not more scrutiny.

The Committee cannot change the rules on how the House of Commons handles treaties. However, it is legitimate for us to consider the new clause within the structure of debates on the Bill and the statute of Rome. The fact that we are in Committee today enacting legislation means that, although the statute itself is not amendable, Parliament can, if it so wishes, say that it does not believe that Her Majesty's Government should have signed up to the statute and that it expresses its dissent to their actions by rejecting the Bill.

The prerogative of treaty-making is not inviolate. If we had advanced a comprehensive case against the Bill and Government Members had found our arguments overwhelming, they might have said, ``This is something up with which we cannot put. Of course, it appears that there is no sign of that happening today.

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

Is the hon. Gentleman arguing that we should vote to reject the Bill?

Mr Gerald Howarth (Aldershot, Conservative)

Perhaps the hon. Gentleman would be kind enough to listen. I said that the format of the Bill allows Parliament to reject the treaty. Parliament cannot amend the treaty, but it can say to the Government, ``We do not like the Bill, and we feel that it should be rejected''. In that regard, an interesting comparison can be made with much EU legislation, which, as we know, is enacted without Parliament's having any say. By and large, EU legislation is unamendable and even unrejectable.

I simply want strongly to reinforce the arguments of my hon. Friend the Member for Reigate. This modest new clause would allow Parliament to reject an amendment to the treaty that was subsequently approved. In response to a report from the Select Committee on Procedure, entitled ``Parliamentary Scrutiny of Treaties'', the Government acknowledged that further development might be useful, and they accepted some of the Committee's recommendations. As Library research paper 01/39 points out, the Government said:

``The Government is happy to undertake normally to provide the opportunity for the debate of any treaty involving major political, military or diplomatic issues''—

with the following particular caveat—

``if the relevant select committee and the Liaison Committee so request.''

That is an important acceptance by the Government of the principle that such major issues should properly be considered by Parliament.

There is no doubt that the Minister has referred to a megacourt for megacrimes from the outset. The ICC is a substantial supranational body, and the Government have sought constantly to reassure us that if it develops over the years in the way that they envisage, our concerns should prove groundless. However, substantial and fundamental amendments might be made to the treaty in the teeth of opposition from a future Government, so it is right and proper for all who believe that far too much power has transferred from this elected Parliament to the Executive to argue that accepting the new clause would be in the interests of our country, and of the armed forces that are uppermost in my mind.

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

I have two main points to make. First, as we have said on previous occasions, any amendments to the ICC statute would not automatically have effect in our law without legislation. If key changes were made to the statute in relation to, say, new crimes or different arrest and transfer procedures, the Executive would have to seek parliamentary approval. A fundamental rule in our law states that, if treaties are to have effect in domestic law, there must be legislation.

The debate has proceeded on the assumption that any amendment would not require legislation, but that is not right. If there were to be major changes, we would have to return with a new Bill. The standard practice of all Governments is never to undertake legal obligations under a treaty that require implementation in domestic law without first ensuring that the necessary legislation is in place. We would therefore have to legislate again before we notified the UN of our formal acceptance of future amendments to the statute.

The hon. Member for Reigate mentioned the seven-eighths provision, a subject to which I am sure that we will return. We think that that is a high proportion of states parties. For new crimes, an additional protection exists in article 121.5. We to expect to play a prominent part in the negotiating process and to have a strong influence over amendments to the statute.

Mr Crispin Blunt (Reigate, Conservative)

The Solicitor-General is correct about the elements of crimes that must be included in domestic legislation. I accept that argument. He is talking about amendments, which require a seven-eighths majority, that concern the nature of crimes. One of the greatest concerns about the operation of the court is how the institution will work. Amendments to the court of an institutional nature will require no changes in domestic legislation and, as stated in article 122.2, require only

``a two-thirds majority of States Parties. Such amendments shall enter into force for all states parties sixth months after their adoption by the Assembly or, as the case may be, by the Conference.''

On that matter, Parliament must properly be consulted.

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

That leads to the second major point about the approach to treaties. The right hon. Member for Caithness, Sutherland and Easter Ross was correct when he said that the hon. Member for Reigate was trying to overturn our constitutional provisions—I suspect by a little breeze, rather than by a side wind. The point is that the Executive have a long-standing role in negotiating treaties, which includes negotiating amendments to treaties. Inasmuch as amendments to treaties do not require legislation, procedures exist, such as the Ponsonby rule, which have been the subject of discussion. The hon. Member for Aldershot (Mr. Howarth) also referred to the Government's response to the report by the Procedure Committee. I reiterate that we remain open to considering ways of contributing to the efficient and effective scrutiny of treaties by Parliament. That is an argument for another day, rather than one in relation to the Bill.

To summarise, major changes concerning new crimes and the warrant-surrender procedure would require us to return to those matters. There is still a possibility for Parliament to examine other changes and express its views. Perhaps parliamentary procedure rules need to be changed; that is matter to which we are alive and are happy to consider, but in a different context.

Mr Crispin Blunt (Reigate, Conservative)

I listened to the Solicitor-General's arguments and have not found them particularly strong. A gale of an argument has blown a hole in his position on institutional changes to the court. Such changes can now be approved by a two-thirds majority of states parties. That could amount to a fraction of the population represented by those states, compared to the population of countries outvoted, and that is a matter of principle that should not be avoided in identifying particular institutions of the court. The Government would have such changes forced on them under the statute, and there would be no provision to return to Parliament to obtain parliamentary approval of them. The Solicitor-General's only argument is that that is an argument for another day and that we are not in an appropriate forum in which to make such a case. That is not good enough. What is wrong with deciding the issue here? The Bill has immense importance for the future of international jurisprudence of the most serious crimes.

The right hon. Member for Caithness, Sutherland and Easter Ross said on Second Reading that the Bill is among the most important that he has dealt with in his 35 years in the House of Commons. There is nothing wrong with it being the vehicle by which Parliament gets off its knees from before the Executive and says, ``No, we will insist on bringing back the Executive to seek parliamentary approval for changes to this immensely important statute.'' I listened to the arguments of the right hon. Gentleman and I intervened on him a couple of times. He accepted the principle of what I am seeking to achieve, and I am grateful for that support—although it became clear that I would receive from him every assistance short of practical help.

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

For the avoidance of doubt, my sympathy was for the idea of improving scrutiny by Parliament, not for the idea of giving Parliament the power to stop the changes.

Mr Crispin Blunt (Reigate, Conservative)

That is an extremely odd position to take. The Executive are in Parliament and accountable to Parliament, so if Parliament wants to stop the changes taking place, it should be able to do so. The right hon. Gentleman explained that his arguments were a halfway house, but I fear that he is perched so firmly on the fence that the iron has entered his soul. That is a most uncharacteristic position for him, although not for his party. I shall go along with the Solicitor-General in one respect and accept that this might be an argument for another day, and I fully intend to return to the matter on Report. I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

Mr Frank Cook (Stockton North, Labour)

If there are no objections, I shall ask the Committee whether clauses 27 to 48 inclusive should stand part of the Bill.

Mr Edward Garnier (Harborough, Conservative)

On a point of order, Mr. Cook. Together with the schedules?

Mr Frank Cook (Stockton North, Labour)

Yes, indeed.

Clauses 27 and 28 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 29 to 34 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clauses 35 to 37 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 38 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clauses 39 to 42 ordered to stand part of the Bill.

Schedule 7 agreed to.

Clauses 43 to 48 ordered to stand part of the Bill.