Clause 152 — Restriction on issue of arrest warrants in private prosecutions

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Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley 6:15 pm, 30th March 2011

I beg to move amendment 2, page 100, line 10, leave out clause 152.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

With this it will be convenient to discuss amendment 154, page 100, line 17, at end insert—

‘(a) A specialist unit shall be established within the Crown Prosecution Service, reporting to the Director of Public Prosecutions, so as to ensure minimal delay in decisions relating to arrest warrants issued under this section.

(b) A specialist unit shall be established within the Metropolitan Police so as to ensure minimal delay in the issuing of arrest warrants under this section.’.

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

The amendment would remove clause 152. At the outset, I should like to say that whatever one’s views on the changes proposed by the clause, it should not be part of the Bill. It is a justice measure in a Home Office Bill, which is already packed. It would be better if the Government had not crow-barred it into the Bill. However, I am glad that we have an opportunity to debate the measure, although we cannot debate it to the extent that other Members and I would have liked.

The Government propose to change the law on the procedure for obtaining an arrest warrant in a private prosecution in a universal jurisdiction case. Such cases are concerned with the gravest crimes against humanity: war crimes, torture, genocide and so on. The Government propose that the consent of the Director of Public Prosecutions should be required before any such arrest warrant can be issued.

My area of interest is human rights, so it is on the human rights implications of the clause that I shall focus. I object to the clause and the Government’s proposals because they will undermine the UK’s standing on international human rights issues. The current situation in Libya and recent events there and elsewhere in north Africa and the middle east provide a helpful context for the debate. For example, if anyone from Gaddafi’s regime—his sons or other senior political and military cohorts—tries to visit the UK at some point in future, they will be affected by this change in the law.

The Prime Minister, the Foreign Secretary and other Ministers have been strong in their condemnation of Gaddafi, in their calls for him to face justice, and in their support for the International Criminal Court investigation. I agree with them. The best place for Gaddafi to end up is in front of a court on an ICC indictment for crimes against humanity. However, the existence of the ICC does not absolve us of responsibility to ensure that those most serious of crimes can be prosecuted within our jurisdiction.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Does my right hon. Friend agree that the current situation is the best one, because it keeps the Government away from allegations of political bias in cases in which arrests are sought for a court in this country? Clause 152 will bring every prosecution into the political orbit, where it certainly should not be.

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

My hon. Friend hits the nail on the head as usual, and I shall develop that argument in a few minutes.

We still have obligations under the Geneva conventions —they are obligations, and not discretions or permissions —to bring before a court persons suspected of committing the gravest crimes against humanity when we are able to do so. This change in the law will undermine our commitment to those Geneva convention obligations.

Why, then, are the Government seeking to change the law? The Justice Secretary, yesterday, and the Foreign Secretary, last Thursday, set out clearly in replies to questions in the Chamber the reasons why the Government are seeking to do so. The first reason that they gave was that it is too easy to obtain an arrest warrant. They suggested that anyone could turn up on a frivolous pretext, spin a yarn to the court and walk away with an arrest warrant—put a penny in the slot and out comes a warrant! I cannot believe that that argument has carried any weight with anyone at all.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I share the right hon. Lady’s deep interest in human rights and I absolutely accept her point. May I, however, go back to what she was saying earlier about the arrest process? Does not she accept that a prosecution is more important than an arrest, and that whether or not the clause is passed, the Attorney-General’s consent will still be required for a prosecution, making the issue a political one? Are we not having the wrong debate? Should not we be debating the Attorney-General’s role in private prosecutions?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

That is certainly a subject for future debate. I agree with the hon. Gentleman when he said in Committee:

“I am not persuaded that there is a need for change…I do not think that a sufficiently strong case has been made about why the current system is not working.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 17 February 2011; c. 684.]

I hope that he still holds that view.

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

That was to have been my very next point. It is amazing that in the past 10 years, there have been just two successful applications for arrest warrants, and that they were then either withdrawn or not acted on.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Does not that 80% failure rate indicate that people have been making frivolous and vexatious applications? Also, is it not right that proper evidence should be tendered to a court or other authority before the issue of an arrest warrant that could have international ramifications?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

Perhaps the hon. Gentleman is not aware of the facts. The fact that there have been 10 applications and that only two were granted means that the judges who currently implement this legislation are absolutely spot on. They do not take frivolous applications—quite the contrary: they are only too careful. They are experienced judges, not ordinary magistrates. The current system works comparatively well, and no one can point to any frivolous applications.

Photo of Gerald Kaufman Gerald Kaufman Labour, Manchester, Gorton

My right hon. Friend might be aware that a document issued by the Liberal Democrats in June last year stated:

“The issue of the arrest warrant for a war crime is decided only by specialist legally qualified magistrates such as the most senior district judge at Westminster Magistrates’ Court. They are well qualified to decide whether the high threshold of evidence, liability and jurisdiction has been met and that no immunity applies…The removal of the right of public prosecution in such cases would have the effect of turning our country into a safe transit point for war criminals, torturers and those guilty of genocide from all over the world.”

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

My right hon. Friend makes a very good point. Indeed, all the human rights organisations, including Amnesty International, Human Rights Watch, Redress and Justice are opposed to this change in the law.

In Committee, the Minister conceded:

“The problem is not that large numbers of warrants are being issued—the Government are aware of only two”.––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 17 February 2011; c. 682.]

It is incredible that the Government think that that is too many, and that there should be rather fewer. The fact that two arrest warrants have been granted in 10 years should be a matter of concern, not because it is too many but because it is too few.

Photo of Louise Ellman Louise Ellman Chair, Transport Committee

I agree with my right hon. Friend that war crimes and crimes against humanity are horrific, but does she really think it just that an arrest warrant was issued against Tzipi Livni who was here seriously to negotiate peace between Israelis and Palestinians and to save lives?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

Well, the other reason the Government gave for the change in the law is, I suppose, the real reason, in respect of which my hon. Friend has hit the nail on the head: it is the Tzipi Livni case. The Government, as the Foreign Secretary and the Justice Secretary explained, are changing the law because of an Israeli politician. Changing the law at the request of a foreign Government does not, I would argue, enhance our ability to act as an international peace broker. It does exactly the opposite by undermining our credibility to speak as a country that takes human rights seriously.

Photo of Andrew Love Andrew Love Labour, Edmonton

Is it not incongruous that at the same time as we continue to speak here about human rights, justice and democracy in the middle east, we also have to move this particular amendment?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

Indeed. I think it sends the wrong signal at this particular time. I hope I can persuade many more hon. Members of the force of my argument.

In today’s The Guardian online, there is an article, stating that coalition criminal justice plans

“make a mockery of universal jurisdiction”.

It continues:

“Giving suspects from ‘protected countries’ immunity from war crimes arrests would turn the UK into a safe haven for suspects”.

That was written by an eminent human rights lawyer, Daniel Machower. He goes on to say:

“A legal case for changing the current judicial process, through the senior district judge, has not been made out and parliament is entitled to reject the proposed change on that basis alone.”

I have my own views on the Tzipi Livni case. I happen to regard the crimes documented in the Goldstone report as pretty damning. The very strength of the current system, however, is that it does not matter what my view is: it is a decision taken by a court without political considerations and on the basis of the evidence alone. That is the system that the Government are going to undermine.

Photo of Matthew Offord Matthew Offord Conservative, Hendon

The right hon. Lady claims that accusations against an individual are mentioned in the Goldstone report, but she also talks about people having immunity in this country. What evidential basis does she have for presuming to believe that to be true?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

I do not know what the hon. Gentleman is talking about—and I doubt whether he does either.

The Opposition Front-Bench team has tabled an amendment proposing to create new units in the Crown Prosecution Service and the Metropolitan police. As the Minister observed in Committee, however, these units already exist for war crimes investigations. The fact that they already exist, and have done for some time, helps to show us what will happen when the Director of Public Prosecutions becomes a gatekeeper for all universal jurisdiction cases: nothing. Yes, nothing will happen. As we learned from a report in The Guardian last month and the work of the all-party group on the prevention of genocide, nearly 400 war criminals are believed to be in the UK right now—from Iraq, Afghanistan, Sri Lanka, Rwanda, Zimbabwe and the Congo. How many prosecutions have there been? One—just one, which is the Zardad case.

I conclude here because this is the core of my case. The clause is important because it communicates our attitude towards crimes against humanity and towards international justice.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Kilburn

Will my right hon. Friend allow me to intervene?

Photo of Ann Clwyd Ann Clwyd Labour, Cynon Valley

I am concluding; I am sorry.

It is already too hard to try to bring war criminals to justice. Sadly, there are already too few prosecutions. Let us not make it even harder.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

It might be useful to inject some legal realism into the debate. At present the law in England and Wales provides for no real evidential threshold, and contains no requirement for a prosecutor to check the credibility of a claim before an arrest warrant is issued. In other words, all that is required is for an individual to go into a police station or the equivalent and make an allegation. That allegation amounts to a prima facie case: the establishment of a prime facie case is the smallest burden that must be borne. Attention-seeking lawyers and campaign groups are being given an opportunity to use the arrest warrant process as a campaign tool. To describe it as providing immunity from prosecution is completely wrong in law, in fact and in degree, and if newspapers have described it thus they are simply wrong.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 6:30 pm, 30th March 2011

I had much experience of disagreeing with the hon. Gentleman on this matter when the Bill was in Committee. I am now trying to understand how he squares what he is saying with what is actually happening. As we have heard, eight of the mere 10 applications that have been made in 10 years were rejected by the district judge, so the threshold is clearly higher than he is suggesting. Moreover, the clause does nothing about the process of applying for an arrest warrant. People could still apply for one; there would just be a delay before it could be granted.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I have a feeling that any Member of Parliament who was subject to the arrest warrant would not be so cavalier as to consider that one or two instances were nothing to worry about. We ought to have a system that applies fairly across the board.

According to a case study, in March last year the former Vice-President of Bosnia, Ejup Ganic, was arrested at Heathrow airport after Serbian judicial authorities issued an extradition warrant. He was accused of conspiracy to murder 40 Yugoslav People’s Army soldiers in an attack in May 1992. He was subsequently released on bail when the judge remarked that the arrest warrant issued by Serbia had been politically motivated. It was reported that Serbia had yet to produce any real evidence, and that most of its supposed evidence consisted of news articles about the incident. City of Westminster magistrates court blocked Ganic’s extradition in July last year. The presiding judge—who, as was pointed out by Sir Gerald Kaufman, had considerable experience—said that he had been led to believe that the extradition proceedings were

“brought and being used for political purposes, and as such amount to an abuse of the process of this court”

Having worked in the criminal justice system for 17 years, I am concerned about the way in which the English legal system is perceived abroad, and the ramifications of some of the incidents that have occurred. For generations, the United Kingdom has been at the forefront of peace conferences and other such meetings. The very recent meeting to discuss Libya is a classic example. Circumstances in which people were fearful of entering this country because an extremely low threshold might result in their arrest would be injurious not only to the reputation of the United Kingdom’s legal system, but to the UK’s overall reputation for being a place where peace can be sought and arrangements can be made across the negotiating table. It is not in the interests of world order and international peace for obstructions to be placed in the way of people wishing to enter this country in the way that they have been doing. That does not, of course, apply to only one country; there are several other examples.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

Does the hon. Gentleman not accept that the example he gave has nothing to do with private prosecutions being pursued in relation to universal jurisdiction, as it was an extradition matter? Does he not also accept that the court had a very serious threshold and made a very serious judgment, so the process clearly could not be abused for political purposes?

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

It is important to remember that there is the issue of fear of arrest, as well as arrest itself. If someone were to say to anyone in this House, “There’s a prospect of your being arrested should you enter the United States, or France,” they would think very carefully before entering those countries, even if they knew there were no grounds for any allegations and they were entirely innocent. They would not put themselves through the hassle.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

There seems to be a fear, including in apparently authoritative newspapers, that the provision will grant immunity from prosecution, but all it does is raise the test to the same level as for prosecutions that occur by the thousands per week in this country. Whenever there is an allegation against an individual—whether for murder, shoplifting or anything in between—the Crown Prosecution Service has to consider two tests: whether it is in the public interest to proceed, and whether there is a realistic prospect of conviction. No one suggests that the need to consider whether there is a realistic prospect of conviction in those contexts in effect means immunity from prosecution for everybody, and that is all that will be applying here.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

This brings us on to what I consider to be an important point. Shortly after an arrest, the Attorney-General has to engage with deciding whether to continue with the private prosecution; that is one of the weaknesses of the private prosecution system. Does the hon. Gentleman think that one way in which this

clause might help with prosecutions is that it would be hard for the Attorney-General to overturn a decision by the Director of Public Prosecutions, because he could not come up with the claim about the relevant person being just a magistrate? In fact the Attorney-General might find that he was in a weaker position, and it would be easier to proceed with a prosecution.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I am not concerned, as my hon. Friend appears to be, about the Attorney-General, because safeguards are built into our system in this country. The Attorney-General has been in a position similar to that envisaged in the Bill for decades, and there is no evidence whatever that that has been a problem in other areas. There are prosecutions in this country that can take place only with the consent of the Attorney-General, and there are other prosecutions that can take place only with the consent of the DPP—I myself have been involved in one or two of them—but no one is suggesting that those cases involve political interference. The reality is that we have to have safeguards against the misuse of a process that has increasingly been employed in highly controversial circumstances and has deeply injurious effects on international relations and British relations. As I have already enunciated, my primary concern is to maintain the good standing of the English legal system.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

The hon. Gentleman is deeply confusing me; I hope he did not confuse the courts in the same way when he was practising. We are trying to ensure that people against whom there is prima facie evidence of war crimes or crimes against humanity could be subject to an arrest warrant in this country. The opposite of that is that they would be welcome in this country. I am sure that is not the hon. Gentleman’s intention, but it is beginning to sound a bit like it.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

Of course it is not my intention that war criminals be welcomed to this country. They would be welcome to be prosecuted in this country, and I would support that. The reality is very different, however, and we must ensure that only appropriate people in appropriate circumstances are subject to the heavy penalty of arrest.

Photo of Mike Wood Mike Wood Labour, Batley and Spen

The hon. Gentleman said that this provision had been increasingly used—10 times in the past 10 years—but what evidence has he got to suggest that that is the case?

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

As I have said, there are several offences that are rarely used, but whose presence on the statute book is in itself damaging. Many would argue that although the 42-days provision was hardly ever used, its presence on the statute book would not be uncontroversial. During the 13 years of the Labour Government some 3,000 new criminal offences were created, dozens of which have never been prosecuted yet remain on the statute book. The principle is that one ought to be interested in justice for every individual, rather than having no justice for a handful and thinking that because only a handful are being subjected to injustice we should not worry about it.

Photo of Mike Wood Mike Wood Labour, Batley and Spen

Is the hon. Gentleman agreeing that this provision has not been increasingly used? If so, does he wish to retract what he has just said? Either it has been increasingly used or it has not. He said that it has been used 10 times in 10 years, but what was the incidence in the previous 10 years? If he cannot produce that evidence, or if the evidence suggests that this provision has not been increasingly used, perhaps he should withdraw what he has just said.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

That is a matter of personal opinion. As I have indicated, one would have to make a comparison with the previous 10 years. The universal jurisdiction law is a common law matter and has, therefore, presumably been available for decades. If it has been used only 10 times in the past 10 years, one would have to go back to see what happened during the previous 10 years. Perhaps one would discover that during that period it had never been used once. If that is the case, it has been increasingly used; I would just posit that.

I am conscious of the fact that other hon. Members would like to speak, so may I conclude by saying that Canada is not considered to be a country that is in any way permissive towards war crimes, yet it has adopted a tack similar to the proposed British solution? Although boasting a very broad piece of legislation implementing universal jurisdiction, Canada’s law requires that all claims based on universal jurisdiction first be personally approved by its Attorney-General or deputy Attorney-General before they can be introduced in any court. So I would posit that to Labour Members, and say that if Canada has done this and is doing it—

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I am going to finish now. If Canada has done this and is doing it, I see no reason why England and Wales should not do it as well.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

I start by saying that we support the Government on the clause. It is strangely placed in this Bill, as it deals with a foreign policy and justice issue, but our foreign policy team has made its support clear. The provision is essential to maintain universal jurisdiction: it allows for the prosecution of war crimes and crimes against humanity anywhere in the world. We also support continuing with private prosecutions.

We do not believe that there should be any weakening in the standards for and likelihood of prosecution, as that would be completely wrong. However, there is a difference between the standards and procedures for arrest and the standards and procedures for prosecution. For prosecution, a higher standard of proof and the agreement of the Attorney-General are needed, whereas for arrest they are not. That means that there could be cases where people are arrested but there is no likelihood of prosecution, because the evidence is not there and the Attorney-General will not give agreement, perhaps because of campaigning on international issues in this country. We do not believe that that is appropriate, especially if it deters people from coming to Britain for purposes associated with diplomacy or peace. So it is essential to make the change that the Government propose, which would bring arrest better into line with prosecution but would not affect the chances of a prosecution. However, if the Director of Public Prosecutions is to take these decisions, he will need to do so swiftly. Justice must not be denied by being delayed.

Photo of Andrew Love Andrew Love Labour, Edmonton

Is my hon. Friend not concerned about this? We have been told that the DPP will consult the Attorney-General, who can, of course, consult his Cabinet colleagues, but all that will take place behind closed doors. Is there not a real case to answer about the politicisation of the process?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs) 6:45 pm, 30th March 2011

That would have been a real danger with the initial proposal concerning the Attorney-General—my hon. Friend is right to highlight that concern—but when the DPP gave evidence to the Public Bill Committee he was very clear about the thresholds that he would use and the way in which he would conduct his business. My hon. Friend is right to raise this issue, but the moving of responsibility for this area from the Attorney-General to the DPP is a significant step forward.

Photo of Andrew Love Andrew Love Labour, Edmonton

The core of this matter is that the DPP will consult the Attorney-General about the public interest test, and that will be the subject of debate, not the standard of evidence that is available. I return to the same question. As that process will take place behind closed doors, is my hon. Friend not concerned about the politicisation of the process?

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

The point that I am making is that the DPP’s involvement is to prevent that politicisation, and I was reassured by what he said when he gave evidence to the Committee.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I am disappointed in the shadow Minister’s line of argument, because on the question of arraigning someone for crimes against humanity or war crimes, he appears to be saying that there has to be a foreign policy consideration. Surely the decision whether to grant an arrest warrant should be made solely on an evidential basis within international law. It should not be about the perceptions or otherwise of this country, or any other, about foreign policy.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

I know that my hon. Friend feels strongly about this, but we are supporting the amendment because this is not only about arrest but about securing prosecution and increasing the likelihood that people can be prosecuted. That is why we support what the Government propose, now that the DPP is involved.

Photo of Matthew Offord Matthew Offord Conservative, Hendon

I am sure that the shadow Minister will recall the DPP’s evidence to the Committee. He said:

“We have people who can work around the clock and…enough trained people so that someone is always available.”—[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 126, Q241.]

That would prevent anyone from fleeing justice in this country.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

That is one reason why I said that if the DPP is to take decisions he will need to do so swiftly. As I have said, justice must not be denied by being delayed. We believe that the Crown Prosecution Service and the Metropolitan police should play a strong role, as they have in the past, and must not be hit by the cuts. That is why we tabled amendment 154—to ensure that there is no delay and that wherever possible things are dealt with as speedily as possible so that the arrest warrant is granted where appropriate, and we can secure a prosecution.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I shall try to be brief because a number of hon. Members wish to speak. I have written an article today for “Liberal Democrat Voice” if anyone wants my comments in full—I am sure that hon. Members read it frequently. [ Interruption. ] There is only one version—unlike what happens with the Labour party, whose members seem to give different messages from the back, the front and the side.

I want to talk about how the system would work, and I urge hon. Members to look at the transcript of the DPP’s evidence to the Public Bill Committee, which was very detailed and very reassuring for those of us who want to make sure that prosecutions go ahead. He made it clear that a team was available, as has just been mentioned, and that it would be ready to act. He understood the issue of timeliness and advanced the idea of using a lower threshold test when there is not enough time to gather evidence. Importantly, he also offered to look in advance at evidence about people who we know should be prosecuted, so as to be ready to go at very short notice—to update what would be required and to be able to go ahead. I was very encouraged by that.

Photo of Michael McCann Michael McCann Labour, East Kilbride, Strathaven and Lesmahagow

I am the chair of the all-party group for the prevention of genocide and crimes against humanity. My right hon. Friend Ann Clwyd has made the point that there are more than 400 war criminals in Britain, but is Dr Huppert aware that only 29 of them are being pursued by SO15? Does that not demonstrate that we have to separate the wheat from the chaff? Clause 152 will do that: it will get right to the heart of the matter and ensure that we have the evidence base to ensure that war criminals are prosecuted.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The role of the police is important. Private prosecutions are the wrong way to go about dealing with such people. If a private prosecution has to be used the state has failed to go ahead—but I would like to see it do so. Private prosecutions are an essential safeguard where the state has failed.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I shall give way once more, but then I want to conclude and allow other hon. Members to speak.

Photo of Yasmin Qureshi Yasmin Qureshi Labour, Bolton South East

Does the hon. Gentleman not accept that the provision has been introduced because of the arrest of one individual? We are changing centuries of our law and tradition for the sake of one person.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

My position was well summarised by an Opposition Member who spoke earlier. It is a shame that there has been a conflation of two separate issues—one about Israel-Palestine and the whole sordid tale there, and the other a legal debate about what the system ought to be. I wish it were possible to have that discussion.

The DPP made it clear that he would talk to the Attorney-General, but he said five or six times that there would have to be a very powerful weight in favour of prosecuting, because the crime is one of universal jurisdiction. The public interest would have to be overwhelming. I take comfort from that, because I am concerned that at present the Attorney-General can stop any process going ahead. We do not have a functioning private prosecution system in this country, because the Attorney-General can stop any such prosecutions at any stage. Including the DPP in the provision would make it harder for the Attorney-General to do that, because straight after the DPP—a recognised independent person—said, “Yes, there is a case. This person can be prosecuted,” the Attorney-General would be faced with the prospect of saying, “Actually the DPP is wrong. He doesn’t understand this,” and trying to end it.

The provision makes prosecutions easier, and it is prosecutions that I am concerned about. I should like to hear more about how the Government will make sure that the police take stronger action. I should like to hear whether they agree with recommendations from the Joint Committee on Human Rights, on which I serve, that would weaken the role of Attorney-General in terminating private prosecutions. My remaining concern is about the fact that the DPP may decide not to go ahead because the evidence is too weak. If that is genuinely the case, I do not think that any of us would have a problem with it. However, what worries me are cases in which the DPP does not get round to making a decision because there is a pocket veto. I should like an assurance from the Minister that the Government will report on such cases. If there are a large number of them in which a pocket veto is exercised and no proper decision is made, I hope that the Government will look at the matter again and make sure that there is due process.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Chairman of Ways and Means

There are two minutes remaining, as I will call the Minister at 6.54 pm.

Photo of Gerald Kaufman Gerald Kaufman Labour, Manchester, Gorton

We heard one Liberal Democrat voice. May I, in the remaining two minutes, quote the Liberal Democrat document which I have already quoted with regard to Tzipi Livni, who has been mentioned? It says:

“Tzipi Livni, as Israeli Foreign Minister, was one of those responsible for authorising these attacks”— on Gaza, which deliberately targeted civilians and civilian infrastructure—

“and made public statements that appeared to encourage the Israeli military to use disproportionate force and engage in deliberate destruction with no legitimate military objective.”

Photo of Gerald Kaufman Gerald Kaufman Labour, Manchester, Gorton

I will not give way, because I have only two minutes.

That is the person whom this lot are trying to acquit of the right even to be prosecuted, and even the issuing of a warrant against her. Her parents were terrorists who murdered great numbers of people. She was an Israeli spy in Paris when the Israelis were murdering people all over Europe and were changing the law to suit this war criminal.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

The purpose of clause 152 is to require the consent of the Director of Public Prosecutions before an arrest warrant for war crimes under the Geneva Conventions Act 1957, and for the few other offences over which the United Kingdom has asserted universal jurisdiction, can be issued on the application of a private prosecutor.

Much of the criticism directed at this provision seems to assume that it will end the right of private prosecution for universal jurisdiction cases—a point that appeared to be made by Sir Gerald Kaufman in his brief speech—and, by extension, that it will damage the principle of universal jurisdiction itself. I emphasise that this is simply not the case. Of course the provision has no effect at all on the ability of the police to investigate, and of the Crown Prosecution Service to prosecute, alleged offences of universal jurisdiction, but we think it is right that citizens should be able to prosecute these cases, grave as they are. That is why, under our proposal, anyone will still be able to apply to a court to initiate a private prosecution of universal jurisdiction offences by issuing an arrest warrant, where appropriate.

Our approach, therefore, differs from that proposed by the previous Government, which removed the right to private prosecution of offences alleged to have been committed by a foreign national on foreign soil.

Photo of Michael McCann Michael McCann Labour, East Kilbride, Strathaven and Lesmahagow

Does the Minister agree that that will prevent the silliness of people like two arch-atheists trying to bring charges against Pope Benedict when he was making an official state visit to this country?

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I will deal with some of these points as I go on.

All that the provision will do is prevent a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. It would not, as Ann Clwyd claimed when she moved her amendment, give immunity to war criminals. That is not the case.

It has been argued that the consent requirement will lead to delay and allow someone who ought to be prosecuted to leave the country. That is the force of amendment 154. That is a serious point, which the Director of Public Prosecutions addressed when he gave evidence to the Public Bill Committee. I urge those hon. Members who are concerned about the provision to read, if they have not done so already, the DPP’s evidence to the Public Bill Committee, which I believe will give them a great deal of reassurance as to how he would approach the matter.

The DPP is well aware that speed is important in dealing with such applications. He explained that the Crown Prosecution Service has suitably trained staff available around the clock, and they stand ready to act immediately in emergency cases. He also had helpful advice for anyone who wants to pursue a crime of universal jurisdiction, which is that they should not wait until the suspect has arrived here, but should engage early with the CPS. He said that they

“should come to us”— that is, the CPS—

“with whatever evidence they have, and we will undertake to look at it and to advise.”

It has also been argued, and we have heard this evening, that there is a risk of political interference, given the likelihood that the DPP would consult the Attorney-General.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

If the hon. Lady will forgive me, I will not give way; time is short.

I raised such a risk in questioning the DPP, but he made it clear in his evidence that

“the decision is the decision of the Director of Public Prosecutions, taken independently.”

He added that consultation between the DPP and the Attorney-General, which is regular,

“acts as no inhibition on the independence that I would bring to the decision. At the end of the day, the decision is mine, it is independent and it is reviewable.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 124-130.]

As my hon. Friend Dr Huppert pointed out, the DPP also said that there are powerful public interest reasons to prosecute in a case that has satisfied the evidential threshold.

The necessity for the provision has been questioned on two grounds. It is said that the sort of people whom it is designed to safeguard are already covered by immunity. Although this is true of some of the visitors against whom arrest warrants have been sought in the past, it is not true of all. Immunity from criminal jurisdiction applies to certain Ministers, and warrants have been sought against Ministers not covered and those who are not Ministers at all.

Photo of Nick Herbert Nick Herbert The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am sorry. I do not have time.

It is said, too, that few warrants have been issued in universal jurisdiction cases, but the problem lies in the perception that a person who is not a British citizen, does not live here, and indeed has no connection with this country apart from being present here, might be at risk of arrest for a very grave crime where there is no prospect of a viable prosecution. That such an occurrence is rare misses the point. The fact is that people who are, or have been, in leading positions in their countries, with whom the Government would wish to engage in discussions, may be discouraged from coming here. That is our concern. That, in turn, creates a risk of damaging our ability to help in conflict resolution or interfere with foreign policy.

Amendment 154 would require special units to be set up in the police and the CPS. The responsibility for investigating universal jurisdiction cases lies with a specialist unit of the Metropolitan police. That unit has the specialist skills and expertise required to conduct those cases, or to decide that an investigation in this jurisdiction is not warranted or feasible. The unit is best placed to evaluate the prospects of being able to protect witnesses or secure their evidence at any trial, identify an individual responsible for the particular conduct to the criminal standard, and deal—

Debate interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.

The House proceeded to a Division.

Ayes 37, Noes 480.

Division number 245

See full list of votes (From The Public Whip)

Question accordingly negatived.

The Deputy Speaker then put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendment proposed: 154, page 100, line 17, at end insert—

‘(a) A specialist unit shall be established within the Crown Prosecution Service, reporting to the Director of Public Prosecutions, so as to ensure minimal delay in decisions relating to arrest warrants issued under this section.

(b) A specialist unit shall be established within the Metropolitan Police so as to ensure minimal delay in the issuing of arrest warrants under this section.’.—(Vernon Coaker.)

Question put, That the amendment be made.

The House divided:

Ayes 179, Noes 297.

Division number 246

See full list of votes (From The Public Whip)

Question accordingly negatived.

Bill to be further considered tomorrow.