International Criminal Court Bill [Lords]

Public Bill Committee, 1 May 2001.

Standing Committee D

Clause 11 - Procedure where court makes order

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Good morning, Mr. Cook. We have made good progress so far and I hope that we shall make even more progress today. Before passing clause 11, I want to clarify what happened in another place and tease out the Minister's thinking on the changes that have been made to the clause, to which the Opposition tabled amendments.

I refer specifically to clause 11(1)(b), which states that the court shall

``inform the person of his rights under section 12 (right to review of delivery order) in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks''.

The keys to the provision were the level of understanding and the language that would be used. The proposal in the Bill as originally drafted was to use ``ordinary language''. The commendable ensuing debate explored the amendment tabled by Lord Lester of Herne Hill to remove ``ordinary language'' and replace those words with the term

``a language he fully understands and speaks''

and the spirit of that proposal was accepted by the Government. The Attorney-General, the right hon. Lord Williams of Mostyn, said:

``I shall certainly have a look at this matter.''

He undertook to write to Lord Lester and said that he would

``place a copy of the letter in the Library for those noble Lords who may be interested. We want exactly the same thing. I believe that the words `ordinary language' have a virtue even in this Committee.''—[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1319-20.]

However, the virtue of those words was not fully appreciated. When I went to the Library to discover the history of the clause, I perused the letter to which the Attorney-General referred—the letter dated 5 March to Lord Lester of Herne Hill. It dealt only with the Government amendments made on Report; it did not deal specifically with the amendment about ``ordinary language''.

I reiterate for the Committee's edification that the Bill was subject to a supposedly long consultation process—although I believe that it was too short. The Government implied that, as a result, the Bill was perfect; however, it proved so imperfect that many amendments had to be made on Report in another place, including the one to introduce the terminology now in the Bill. Instead of accepting Lord Lester's amendment which would have inserted the phrase:

``a language he fully understands and speaks'',

the Bill now contains the phrase:

``a language which appears to the court to be one which he fully understands and speaks''.

The letter dated 5 March to Lord Lester explaining the amendments to clause 11 states:

``During the debate on 8 February, the Government agreed to look again at the provision on `ordinary language' in Clause 11(1)(b). In line with views expressed in committee, the amendment seeks to incorporate the need for the person to be informed of his rights to seek a review both in non-technical terms and in a language which it appears he fully understands. The amendment draws and expands upon the wording of the Statute to ensure that each of these distinct considerations is covered.''

I should have thought that to cover the considerations in the statute, the word ``appears'' was otiose. To use the phrase

``a language that he fully understands and speaks''

places a different burden of proof on the matter than inserting the word ``appears''. In the other place, the Earl of Onslow made the eminently sensible suggestion that we could have the best of both worlds if the replacement for the term ``ordinary language'' were:

``the ordinary language that he fully understands and speaks''.

Why did the Government not accept the Earl of Onslow's suggestion, but insist on the higher burden contained in

``which appears to the court to be one which he fully understands and speaks''?

Why have the Government inserted the word ``appears''? How will a court fulfil that section of the statute? What tests will the judge apply to find out whether the person committed to custody understands the language used? How will that person appear fully to understand the language being used? That is especially important given that we may be dealing with people of many nationalities who speak a variety of languages or dialects and who may, as we discussed earlier, be mentally or physically infirm or below the age of consent. At this stage in the scrutiny of the Bill, it is important that the Minister explains fully what is meant by

``appears to the court to be one which he fully understands and speaks''.

and explains what tests the court will apply to ensure that that provision is fulfilled.

Ross Cranston (Labour, Dudley North)

The issue is how a person will be informed of his right to ask for a review of the delivery order. As the hon. Lady said, the consultation draft referred to ``ordinary language''. Lord Lester and Conservatives in the other place asked what would happen if the person involved could not speak English. As the phrase ``ordinary language'' would not cover such a case, the Government introduced on Report an amendment to insert the terminology now in the Bill.

The hon. Member for Chesham and Amersham (Mrs. Gillan) asked about the word ``appears''. I imagine that the parliamentary draftsman was trying to deal with a case in which someone feigned ignorance of the language. I am not at all surprised by the particular language in the Bill. Lord Lester welcomed the amendment on Report in the other place, and Lord Howell of Guildford said:

``My Lords, it is now my turn to say—or not to say—``Snap''. I agree with what the noble Lord, Lord Lester, has said.''

in other words, he accepted the amendment—indeed, he added:

``We are grateful that the amendments have been tabled.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 408.]

Conservatives in the other place accepted the language—they were perfectly content with it. I suggest that the hon. Lady also accepts it and gets on with the more substantial issues raised by her hon. Friends in other amendments.

Edward Garnier (Conservative, Harborough)

On occasion, defendants who appear before the English courts are found to be mute of malice—they probably can speak the language and understand what is going on, but they refuse to co-operate with the normal workings of the court. In such cases, it is within the court's power to make a declaration that a person is mute of malice. If a person refuses to co-operate with the court, the court can, of its own motion, take steps to deal with that. Will the Solicitor-General clarify whether, the policy behind the use of the expression:

``which appears to the court to be one which he fully understands and speaks''

was to cope with such occurrences? Unfortunately, in his natural desire and haste to get on to other parts of the Bill, the Solicitor-General did not deal with that aspect of the concerns expressed by my hon. Friend the Member for Chesham and Amersham—[Interruption.] If the hon. and learned Gentleman wishes to address the Committee, he should do so on his feet. [Interruption.] That might be help from afar. Nonetheless, it would have been helpful if the Solicitor-General had dealt with that point. He says, from a sedentary position, that he has already dealt with it, but I would be grateful for clarification.

Ross Cranston (Labour, Dudley North)

I am reluctant to return to my feet because I dealt with that point when I said that the wording was probably chosen to cover the problem of people who feign ignorance of the language, which was precisely the point raised by the hon. and learned Gentleman. That and other points were adequately covered in the other place, and the official Opposition in the other place were content. We have not yet come to important issues raised by the Opposition in the other place that we have a duty to consider, and I do not think that we should delay the Committee by considering spurious points.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I consider the Solicitor-General's reply to be extremely discourteous and disappointing. In considering the progress of the Bill, I reject the argument that merely because Members of the other place have agreed that something is better we in this House should be prevented from scrutinising it. That the word of unelected Members in the other place must be taken and elected Members in this House have no right to discuss matters further would be a dangerous precedent for the Solicitor-General to set.

The Solicitor-General is quite wrong in his assertions. I raised the matter on clause stand part out of a genuine desire to discover the thinking behind the insertion of the higher hurdle into the clause. It is rather sad that at this stage a Minister cannot take seriously a point that has been put quite succinctly by the Opposition. I will not divide the Committee, but I have noted the Solicitor-General's change in attitude. He is dismissive of attempts to explore the thinking behind such issues—unlike the Minister of State, Foreign and Commonwealth Office, who has entered into the spirit on many occasions.

The amendment that has featured in our debate was tabled by the Government in the other place. I am sure that the Solicitor-General question anything that was done by a fellow Minister, but his explanation has been derisory.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Right to review of delivery order

Edward Garnier (Conservative, Harborough)

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.

Ross Cranston (Labour, Dudley North)

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.

Crispin Blunt (Conservative, Reigate)

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.

Gerald Howarth (Conservative, Aldershot)

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.

Edward Garnier (Conservative, Harborough)

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.

Gerald Howarth (Conservative, Aldershot)

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?

Ross Cranston (Labour, Dudley North)

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.

Gerald Howarth (Conservative, Aldershot)

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.

Ross Cranston (Labour, Dudley North)

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.

Clause 22 - Unscheduled landing

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have a simple question for the Solicitor-General. Why, in the negotiation of the statute, was the period of 96 hours arrived at? What is the reason for such an arbitrary period? Why was it not a longer period—say, seven days—or a shorter one?

Ross Cranston (Labour, Dudley North)

The simple answer is that the clause deals with unscheduled landing. In such cases, we do not want a situation in which possibilities are open for habeas corpus to be sought by the person involved. The purpose behind the incorporation of the 96-hour period in the clause was to transfer the person to the ICC as quickly as possible.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Provisions as to state or diplomatic immunity

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I beg to move amendment No. 41, in page 14, line 17, leave out subsection (4) and insert—

`( ) Where, in a particular case, the ICC has not made a final determination as to whether Article 98 of the Statute applies to a request, the Secretary of State may postpone his consideration of the request and consult with the ICC; and if the ICC advises that it has considered Article 98 and that it intends to proceed with the request, the Secretary of State must continue to deal with the request under this Part.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take amendment No. 52, in page 14, line 17, leave out subsection (4).

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I want to raise again matters that were raised in another place by my noble Friend Lord Avebury, who was supported by Lord Lester of Herne Hill. The debate will allow the Government to reconsider an important issue.

As it stands, the clause affords the Minister the discretion to refuse delivery in certain cases. That approach is too cautious. It allows a discretion to the Minister that it would be wiser not to allow. The clause leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by or from the ICC. Clause 23(4) leaves it to the Minister to decide to whom immunity should attach in relation to non-state and state parties alike. Once again, that might leave the Minister open to considerable political pressure and prevent the United Kingdom from co-operating effectively with the ICC.

In another place, the Attorney-General made a distinction between discretion in relation to state parties, to which subsection (1) refers, and non-state parties, to which subsection (2) refers. The justification for that distinction is hard to see. My noble Friend Lord Avebury pointed out that it was wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events as a result of there being a dispute. The Attorney-General reaffirmed that there would always be consultation between the Secretary of State and the ICC and between the Secretary of State and a non-state party to ascertain, first, that no waiver had been issued and, secondly, that the person had the immunity that he claimed to have had.

The Secretary of State would want to exercise such discretion if he disagreed with the court about whether the accused had made out a case that he was a member of a non-state party and had the immunity that he claimed to have had. All NGOs that have examined that point have told the Government that it should be a matter for the ICC in accordance with the statute of Rome. The Attorney-General said that he thought that, in certain exceptional cases, subsection (4) could be necessary and that he was standing firm on the non-state parties. While there may be circumstances in which discretion may seem desirable on the part of the Executive, it is unnecessary and undesirable that the Secretary of State should be subject to political pressure if he were to decide in which particular exceptional circumstances subsection (4) applies.

My amendment is based on articles 66 and 120 of the New Zealand statute, which provide that when the Minister is concerned about the clash of the international obligations of New Zealand including immunities, he can consult the ICC to ask whether it wishes to proceed with the request. Such a consultation procedure would remove the Government's veto, but would allow the Secretary of State to raise his concerns about either state parties or non-state parties and to ask whether the court considers that an effective waiver has been issued and whether it properly applies to the individual concerned.

Let us suppose that there is a dispute about the effective Government of a state and the individual argues that the party that has issued the waiver and accepted the jurisdiction of the court does not have the necessary authority to do so. It seems highly unlikely that the ICC would ask us to set aside our international obligations in relation to state or diplomatic immunities, except when the state concerned has accepted its ability to do so. I understand that to be the purpose of article 98 of the Rome statute, and we should trust the ICC, when it is established, in respect of that statute.

If there were a conflict between the judgment of the Government and that of the ICC in such a matter, this country would be under an obligation to abide by the statute and to give the ICC priority. The amendment would not simply delete subsection (4), but would provide for consultation to eliminate such a conflict. In most circumstances, that would be the natural consequence of such a referral.

Crispin Blunt (Conservative, Reigate)

It is a pleasure to follow the right hon. Gentleman. I am slightly at a loss about the effect of his amendment and I am not sure that it entirely distinguishes between state and non-state parties. My amendment would delete subsection (4), the reason for which I hope is crystal clear. Will the Solicitor-General, if he is replying to this part of the debate, explain the consequences of amendment No. 52? A distinction will have to be made between state and non-state parties to the agreement. I am happy to come back on Report and table another amendment making that distinction, which would leave subsection (4) as it is but for the removal of ``(1) or'' in line 19. The subsection would then refer to non-state parties, as subsection (1) refers to state parties.

The importance of the issue cannot be understated, as it goes to the heart of the statute itself. Article 27 is absolutely explicit. It states:

``This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence . . . Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.''

The article could not be more explicit. The whole purpose of the ICC is to bring to justice the leaders of countries who order the crimes on which the court will rule.

Will the Solicitor-General explain part of article 98, which to a small extent seems to qualify the absolute position taken in article 27? Later, I hope that we may have a discussion about universal jurisdiction and whether it is right for the United Kingdom, if it is a party to the words of article 27 and in the preamble to the statute, to try not only our own nationals when they fall within this jurisdiction but nationals of other countries for the heinous crimes laid out in articles 5 to 8 of the statute. We will have that discussion later, and ask whether the measures should apply to non-state parties as well as state parties, who are then within the scope of British law and within the United Kingdom.

Although article 27 is explicit, article 98.1 adds the point that countries that have not ratified the treaty and are therefore non-state parties will clearly have different international obligations with state parties. As I understand it, article 98.1 simply states that a non-state party to the agreement or a third state can properly expect the immunity of its diplomats and Heads of Government in dealing with a state party to be respected, as they are not a party to the ICC. Article 98.1 seems to give that protection to the diplomats and representatives of non-state parties. The Government clearly have a proper case to make in that regard, that the ICC and the statute and the international law that has been created to establish it, cannot be seen to override previous international law, not least that relating to immunity.

It is clear, however, that states that ratify the statute accept article 27 and, therefore, accept that immunity will not apply to their own people. How, then, can the Solicitor-General possibly defend subsection (4)? The subsection explicitly gives discretion to the Government by stating:

``The Secretary of State may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings . . . under this Part which, but for subsection (1) . . . would be prevented by state or diplomatic immunity''.

Subsection 1 states:

``Any state or diplomatic immunity attached to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this Part in relation to that person.''

That is clear. In subsection (4), the Government are giving themselves the discretion to let off a diplomat, Head of Government or any representative of a party to the statute when faced by an ICC warrant for such a person's arrest. The Government cannot properly defend that position. In previous debates, the Government have resisted giving themselves discretion. They have resisted changing the word ``shall'' to ``may'', and they even resisted the proposal that Parliament should hold an inquiry into proceedings if there is a dispute with the ICC. The Government have resisted a public interest test about proceedings, and now they say that they will give themselves the discretion to let off diplomatic representatives or Heads of Government of countries that are party to the agreement.

Later, we shall discuss universal jurisdiction. I contend that subsection (4) can be dispensed with if the ICC is to be supported in the terms that the Government have put forward in signing up to the statute. If we in the United Kingdom are on the receiving end of a warrant from the ICC to surrender somebody who has been accused of crimes, why should the United Kingdom intervene? There is a case to be made for that, and I would like the Government to make that case when they say that my amendment, as drafted, would not be correct.

We must examine the Government's position, as set out in the explanatory notes, when we consider the matter, and how the Government have moved under pressure from the NGOs to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. In the initial consultation about the ICC there was no mention of diplomatic immunity. When that was pointed out to the then Minister, the hon. Member for Neath (Mr. Hain), he was shocked that the Bill would drive a coach and horses through the ICC because it would not deal with the matter of diplomatic immunity. Following that consultation, diplomatic immunity is in the Bill.

To be fair to the Government, the explanatory notes to clause 23 present their understanding of the case, which states:

``Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person.''

The explanatory notes continue to say that article 98.1 draws the distinction between state parties and non-state parties, and make it clear that the surrender of a person for whom a warrant has been issued who is a representative of a non-state party can occur only once the permission of their state party has been obtained, if that person is a diplomat or has immunity. That suggests that subsection (4) is not consistent with the statute, although a case may be made that it would be consistent with article 98.1 if the reference to subsection (1) were struck from its provisions. However, there is a case for striking the subsection altogether. The Government—having resisted any discretion thus far—should not have discretion if they are in receipt of a warrant from the ICC, they should get on with it and surrender the person for the crimes that the ICC had identified.

What do the provisions of article 98.2 mean? I sat down with and without a wet towel and read it several times to try to understand what it means and whether it is different from article 98.1, but I do not understand. I should be grateful if the Solicitor-General would explain, in simple language that a simple ex-soldier like me can understand, what article 98.2 is intended to achieve.

Ross Cranston (Labour, Dudley North)

Before I lose that point about article 98, paragraph 1 relates to international law, whereas paragraph 2 relates to international agreements. An obligation may apply under international law, but international law can be customary, for example. Paragraph 2 refers specifically to obligations under international agreements—in other words, treaties—and I suspect that that is the distinction.

Crispin Blunt (Conservative, Reigate)

I concede the point about international agreements. However, is there a difference between a requested and a sending state? What do those terms mean? I understand that the requested state is on the receiving end of the request from the ICC, but how is that different from the sending state?

Ross Cranston (Labour, Dudley North)

We may have to return to that. A moment ago, we discussed transit. The sending state may not be the requested state because of a transit issue. Perhaps I shall receive further clarification in due course. It seems that the sending state is the one that sends the diplomat, whereas the requested state is the one that receives the request. I hope that that helps the hon. Gentleman.

Crispin Blunt (Conservative, Reigate)

Surely the two are the same. Why would the ICC issue a request to a state that could not send the person? That is why I do not understand article 98.2.

Ross Cranston (Labour, Dudley North)

I think that we had better return to that.

It is unsurprising that we return to the argument advanced by the right hon. Member for Caithness, Sutherland and Easter Ross, as it was dealt with in the other place and is important. He and the hon. Member for Reigate referred to our obligations under the Rome statute, article 27 of which states that immunity shall not constitute a bar to prosecution before the ICC. States that sign and ratify the statute agree to that provision. The clause provides that diplomatic and state immunity cannot shield representatives of state parties from arrest and surrender. As the right hon. Gentleman said, the position of state party is clearly set out in the statute.

The same is not true in relation to non-state parties, which will not have agreed to article 27. Under international law, we are obliged to accord diplomatic and state immunities unless the state involved has agreed to waive them. We have said all along that we hope that as many countries as possible will become state parties so that the category of non-state parties will be very small—in an ideal world, it would be non-existent. If they became state parties, they would agree to article 27.

Clause 23(4) provides the Secretary of State with the power to direct that arrest and surrender proceedings shall not take place against someone who enjoys state or diplomatic immunity, which would not prevent the proceedings from going ahead were it not for the clause. The clause also states that the Secretary of State can do that only after having consulted the ICC and the state involved. The clause also clearly sets out that the Secretary of State can do that only after having consulted the ICC and the state concerned. We explicitly accept that the Government must consult the ICC about whether issues of state or diplomatic immunity are involved in an ICC request. The clause is drafted in a way that provides for consultations with the ICC and the sending state of the person concerned, and their opinions would be carefully considered before a decision was taken.

We do not envisage that such circumstances will arise often, if at all. We are providing for a situation that is rare, and the details are difficult to predict. That is why subsection (4) has been included. As the hon. Member for Reigate mentioned, there was no such provision in the consultation Bill. We amended it as a result of comments made by NGOs and by those in another place.

Amendment No. 41 would tie the hands of a future Government with regard to rare and unusual cases that would be difficult to foresee and the details of which would be hard to predict. However, the provision makes it clear that the views of the ICC and the state concerned would be significant factors in any decision that might be taken, and it should therefore be included as a prudent measure against an uncertain future. The right hon. Member for Caithness, Sutherland and Easter Ross might not agree with that, but our policy is clear: war criminals must be brought to justice.

The hon. Member for Reigate correctly pointed out that subsection (4) covers state parties and non-state parties. As I have said, we have included the provision because we live in an uncertain world, and I therefore resist the amendments.

Crispin Blunt (Conservative, Reigate)

Having listened carefully to the Solicitor-General's comments, I will not press my amendment. I wish to study what he has said, and to take further advice about the consequences of the Government's position, particularly with regard to the issue of immunity and the question of whether people who ought to be brought to justice under the statute will be able to escape prosecution. I want to discuss those matters with some of the learned friends who are associated with the NGOs that are following the proceedings before I adopt a clear position.

I am still looking forward to a final explanation of article 98.2 and its differentiation between a requested state and a sending state—although I fail to see why the ICC should send a request to a state in which the person concerned is not residing.

Ross Cranston (Labour, Dudley North)

I apologise for omitting to explain that. The hypothetical country that is always used in discussions about international law is Ruritania. If there is an ambassador for Ruritania, the sending state is Ruritania. The ICC may request the United Kingdom to surrender that person, and in that case the UK would be the requested state. That would be the distinction—if the ambassador is from Ruritania, that is the sending state. The requested state is the UK. I hope that that is a sufficient explanation.

Mr. Blunt indicated assent.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The Solicitor-General is right to say that there is simply a division of opinion on this issue, which is probably not easy to resolve. I am no clearer about the circumstances that the Government are fearful of, and, in all candour, the Solicitor-General admitted that he could not foresee any in which it would be necessary to rely on the provisions in subsection (4). That proves to me that it is—to use the lawyer's phrase—ex abundanti cautela that the clause is being put forward. I remain unconvinced by the arguments deployed by the Solicitor-General. This is a straight issue of principle about who should decide whether or not the immunities persist or obtain. It seems to me that the statute provides for it to be in the determination of the court and not the Government. Should there be a conflict between the two, the court would decide. However, in the light of uncertainties, it would be inappropriate to press the matter. I shall certainly take further counsel on the point and perhaps return to it a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I want to take this opportunity to press the Solicitor-General further on the circumstances that surround the clause regarding state or diplomatic immunity. In his response to the amendments, he said that the Government's policy was clear, and that war criminals must be brought to justice. That is a commendable policy and one with which we would all agree. However, we require further and better particulars. It appears that under our commitment and ratification process—the introduction of this legislation will mean that all UK citizens, whether soldiers or politicians, will be subject to surrender to the ICC—we as a country can play host to visiting diplomats, heads of state and others who we will not be able to touch with a bargepole, as they say in some quarters. I would like the Solicitor-General further to identify the circumstances in which a visiting vile man could come on a shopping trip to Harrods and remain at liberty and at large. All of us want to satisfy ourselves that that cannot happen in the UK. It would be a crying shame to have gone through all the processes of negotiating the statute of Rome, introducing the legislation and discussing it at great length, to find that there was a lacuna whereby a perpetrator of a crime, who had diplomatic and state immunity, could come here for a shopping trip. That would upset us all greatly.

Oona King (Labour, Bethnal Green and Bow)

Does the hon. Lady share my joy and pride at finding on closer inspection of the Bill that no such loophole would exist as long as the said war criminal was being investigated by the ICC, and the ICC made a request to the Government for his extradition? The said criminal would be brought to justice, notwithstanding the shopping trip to Harrods.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the hon. Lady. Sadly, she is merely a Back Bencher and not in government. I seek such reassurances from those on the Government Front Bench.

I want to explore how far we can push the argument. With regard to the perpetrators of a war crime who would not be subject to immunity on United Kingdom territory along the lines that the hon. Lady and I have been discussing, in some circumstances it may be desirable for such individuals to be subject to immunity pro tem. Over the past few years, there have been many negotiating processes, for example, at Rambouillet and Dayton. In an attempt to reassure myself and the Committee that peace processes can move forward, it is apposite to raise such issues to ascertain whether there would be room under the Bill and, in what circumstances, to enable a negotiating process to take place on a third party's territory. Instead of Rambouillet, could a peace process between two warring factions be held at Chesham and Amersham? We are considering the tension between a conflict resolution and justice. We must ensure that we have the correct vehicle for ensuring justice, but we do not want to inhibit a potential peacemaking or negotiating process that could result in the termination of a conflict and the saving of lives.

I hope that the Minister will deal with that issue because we must ensure that we are not cutting off a route to the many countries that will roll into the process. We are moving towards 60 and, as has been expressed, we are hoping eventually that the United States will decide that its concerns have been satisfied as, indeed, we hope that our worries will be under the Bill. That will be of small comfort, however, if we develop a court and a process that will inhibit the saving of lives and the cessation of violence and hostilities between parties.

The problem is of concern to me, and it may be to those to whom we offer asylum. We rightly continue to offer asylum to victims of conflict and persecution throughout the world, but people may wish to see the perpetrator of a crime brought to justice who might be invited here to negotiate a peace process. I want to ensure that the Bill does not remove any options for an exit route, which could bring about a cessation of hostility.

I refer to the matter because it was raised by the former Foreign Office Minister with responsibilities for Africa, the hon. Member for Neath , who, when asked about Dr. Savimbi, is alleged to have said:

``I would say to him: `If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that.'''

He is alleged to have said that to the Electronic Telegraph. I do not believe that that statement has been revoked, although the Minister may tell me differently. Certainly, that was the reported statement of the former Foreign Office Minister, who may have been trying to ensure that there was a way of concluding conflict.

If the statute, when it is enacted, removes the possibility of an exit route, it would be wrong to let the legislation slide through without exploring the limits and the possibilities of providing an exit route to individuals who have undoubtedly been part of revolting war machines and disgusting tactics used against their own people and others. There is no doubt that it is desirable to remove such individuals from the arenas concerned, and it is therefore necessary to consider the matter as a potential way of bringing hostilities to a conclusion. However undesirable it may be morally, it may be practically expedient to conclude matters. I am not advocating that as a course of action; I am merely trying to explore what possibilities would still exist if the legislation were firmly on the statute book.

There is also the question of the potential to disrupt diplomatic processes. Will the Minister reassure me that he does not see any reason to rewrite the diplomatic rules as they apply, or to develop further the way in which we do our business? It seems that the statute may deter face-to-face diplomacy if there is a fear that an individual may fall within the jurisdiction of the statute. Will the Minister therefore say how he has viewed the potential for the reduction of face-to-face diplomacy as a result of the treaty? What discussions has he or the Department had with other countries on the way in which they will handle such a situation? Our relationship with other countries vis-a-vis the statute is also of great importance. We cannot fulfil the conditions of the statute in isolation—we are dependent not only on the operation of the court but on the way in which other countries operate their regimes and diplomatic processes, and how they participate in events on the world stage.

I hope that this was a suitable debate in which to raise such issues, and I look forward to a response from the Solicitor-General.

Ross Cranston (Labour, Dudley North)

The hon. Lady makes several points, some of which we shall discuss later in relation to universal jurisdiction. She mentioned the case of the person coming on a shopping trip. We anticipate that, once the court is up and running and states have introduced into their laws provisions comparable to part V to deal with such crimes nationally, people who commit them will not be taking many shopping trips. I suspect that already, as a result of as the Pinochet case, for example, people who commit war crimes, crimes against humanity, genocide and so on are not even thinking of taking shopping trips. However, we shall return to that. As we have said, as a result of signing up, immunities in general will not operate.

The hon. Lady makes a valid point about how the operation of the Bill might affect the peace process and inhibit Dayton-type discussions, for example, but I believe that it has already been dealt with. Our view is based on article 16 of the statute, which states that when a resolution is adopted under chapter 7 of the charter—in the event of a threat to international peace and security—the Security Council may ask the ICC to suspend an investigation. If delicate peace negotiations are under way, the Security Council could pass a resolution, and Dayton-type discussions could take place. The hon. Lady makes a valid point, but it is dealt with by article 16.

More generally, a point of principle is involved. We would probably say that justice provides the best possible foundation for long-term peace.

Crispin Blunt (Conservative, Reigate)

To make it absolutely clear in discussing a case such as Dayton and peace and reconciliation, the only provision in the statute under which investigations can be deferred is article 16. It requires all permanent members of the Security Council not to exercise their veto for that resolution to be passed. The resolution must be renewed every 12 months to sustain that position. Let us consider a case that does not relate to an international problem on which all five permanent members and a majority of the Security Council are agreed, and processes such as Dayton that relate to a national peace and reconciliation process that the international community is not willing to approve, or a regional process for which Security Council approval is not affirmative without a veto. In such circumstances, it is under article 16 only that exceptions can be found, and such peace and reconciliation processes could not proceed in the way that Dayton did.

Ross Cranston (Labour, Dudley North)

Simply because the problem is regional does not mean that it would not fall under chapter 7 of the charter, and the Security Council might pass a resolution. The hon. Gentleman is right that the Security Council must make a decision, which requires unanimity. However, in the case of a Dayton-type situation, which was regional in the sense that it was European, or other regional conflicts, that will not necessarily act as a block on the Security Council passing the resolution.

The hon. Gentleman is right that the resolution would operate for only 12 months and would have to be renewed, but as I gave way to him, I was about to say that we would take the view as a point of principle that justice, generally speaking, provides the best foundation for long-term peace. We believe that identifying and bringing to justice those persons who have committed the most serious crimes possible is the best foundation for reconciliation in war-torn societies. It may help the hon. Member for Reigate if I add that the national tribunal for the former Yugoslavia was set up under chapter 7 of the United Nations charter. The hon. Member for Chesham and Amersham raised a valid point, but article 60 provides the answer.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Solicitor-General for his response, but he did not address my point about the suggestion made by the hon. Member for Neath when a Foreign Office Minister. What are his views on that proposed solution in relation to the provisions in the Bill?

Ross Cranston (Labour, Dudley North)

In Hansard, on 8 March, at column 382, my noble Friend Baroness Scotland of Asthal, the Under-Secretary of State, Foreign and Commonwealth Office, refuted the statement alleged to have been made by my hon. Friend the Member for Neath, the Minister for Energy and Competitiveness in Europe. I can hand the hon. Lady that passage, from which she will see that my hon. Friend did not make the statement about immunity to which she referred.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Schedule 2 - Delivery up of persons subject to criminal proceedings, &c. Question proposed, That this schedule be the Second schedule to the Bill.

Edward Garnier (Conservative, Harborough)

The schedule belongs with clause 24, and I shall ask the Government some brief questions. First, paragraph 2(3) on page 48 states:

``If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State . . . shall consult the ICC before giving directions for the execution of the order''.

In this context, what does ``consult'' mean? Does it imply that the Secretary of State may not do anything without the consent of the ICC and that he will take into account its answer in some way, or does it simply mean that the Secretary of State will inform the ICC of what he wants to do before doing it? My question applies equally to paragraphs 12(2) or 13(4), and to other examples that may exist within schedule 2 of the use of the words ``consult'' or ``consultation''.

Paragraph 2(5) states:

``This discontinuance under this paragraph of criminal proceedings in respect of an offence does not prevent the institution of fresh proceedings in respect of the offence.''

Will the Solicitor-General confirm that article 20 overrides that provision? That question relates also to paragraph 4(5).

Paragraph 5 deals with the effect on custodial sentences. How will the schedule affect the Rehabilitation of Offenders Act 1974? I appreciate that most of the sentences that ICC defendants will receive will be lengthy and may well be life sentences, so the Rehabilitation of Offenders Act 1974 may not bite. However, in the event that the ICC hands out a short sentence that comes within the current provisions of the Act, will the provisions of the Act apply to such a sentence?

Paragraph 12(2) in part 3 of the schedule states:

``The Secretary of State shall inform the court of the request and of the outcome of the consultations.''

Is the word ``inform'' used in the straightforward sense of a person simply telling somebody what is being done— to tell the court of the request and the outcome of consultations—or is there an extra meaning that should be read into the word? Such concerns are similar to those that I had about the word ``consult''. These questions may not detain the Solicitor-General for long, but I ask him to address them before we proceed.

Ross Cranston (Labour, Dudley North)

In terms of paragraphs 2 and 12, there are two ends of the spectrum. At one end, there is the matter of simply informing someone of something—``consult'' may mean that; at the other end is a situation in which the person informed has a veto. Consultation falls across the spectrum. One consults rather than simply informs because one discusses the matter with a person and takes into account what a person may say. As the explanatory memorandum makes clear, the purpose of consultations would be to

``determine when and how the surrender will take place.''

Consultation would occur so that matters would be discussed and taken into account before a decision was made. The ICC would not have a veto. However, paragraph 12 contains the word ``inform''—there is no consultation there. That deals with the first and fourth points made by the hon. and learned Member for Harborough.

The second point that the hon. and learned Gentleman made was about paragraph 2(5). There is a distinction between discontinuance of proceedings, and a situation in which proceedings are taken to completion. Under article 20 a person who is tried cannot be tried for a second time following an acquittal. However, one may start proceedings that are discontinued, which under our domestic law is not a bar on restarting proceedings.

Edward Garnier (Conservative, Harborough)

Would the normal abuse applications apply? If a matter was discontinued and subsequently restarted, would the defendant be able to apply to have the proceedings stayed on the basis that they were an abuse?

Ross Cranston (Labour, Dudley North)

In terms of the ordinary rules, the abuse argument would prevent the prosecution from starting again. The hon. and learned Gentleman knows that there are discussions continuing with the Law Commission on whether we should change our domestic proceedings on abuse applications, so that the prosecution could apply to have a judge's decision on abuse set aside. However, at present, a stay resulting from an abuse application means that the matter cannot be started again.

I will probably have to write to the hon. and learned Gentleman about the matter relating to the Rehabilitation of Offenders Act 1974, but I might be able to tell him about it later today.

Question put and agreed to.

Schedule 2 agreed to.

Clause 25 - Documents having effect as warrants, &c. Question proposed, That the clause stand part of the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have a brief and simple question. The clause deals with documents that have effect as warrants. The explanatory note states that

``This clause provides that a copy or a faxed version of a warrant or other document shall be treated as if it were the original and shall be admissible in evidence.''

With regard to that statement, will the Solicitor-General clarify the standing of electronic transmissions and e-mail? Although we are legislating for the long-term future, it appears that we are dealing only with instruments of communication of the past.

Ross Cranston (Labour, Dudley North)

The legislation appears to deal only with faxes, so it might not be completely up to date. I think that the matter has been debated. The issue of e-mails might be more thoroughly addressed in the future, but they would be covered by the legislation if they were confirmed by fax. However, I concede that we are not up to date. That is generally the case with regard to court procedures: e-mails are not recognised as serving documents. We will have to make progress on such matters.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am glad that the Minister has acceded to a point. It is a simple matter but important, especially bearing in mind the accelerating pace of advances in communications. I am unsure whether the matter can be resolved, but it is not contentious. If it could be dealt with by, for example, a small technical amendment, my party would be pleased to accept that. However, it is crazy that a Bill that is intended to address the long-term future does not deal with a form of communication that is readily available and increasingly used by Governments here and abroad. After all, e-mail is a cost-effective way of communicating.

Edward Garnier (Conservative, Harborough)

Would my hon. Friend accept that the easiest way to deal with the matter might be for rules to be provided for via secondary legislation? That would allow for the proper making of procedures, so that the delivery of instruments and so forth could be properly set out under subsidiary rule-making powers. Perhaps my hon. Friend or the Government are attracted to that proposal.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am willing to explore with the Government any possibility that would allow for modern communications to facilitate swifter contact between organisations. If my hon. and learned Friend's suggestion found merit in the Government's eyes, I would give it my support, although Ministers will want to consider his proposal further before agreeing to it.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.

New Clause 1 - Jurisdiction of the court

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Frank Cook (Labour, Stockton North)

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.''.'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

John Battle (Labour, Leeds West)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

Frank Cook (Labour, Stockton North)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

John Battle (Labour, Leeds West)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

John Battle (Labour, Leeds West)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

Crispin Blunt (Conservative, Reigate)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

John Battle (Labour, Leeds West)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That is what Admiral Sir Michael Boyce said.

John Battle (Labour, Leeds West)

Admiral Sir Michael Boyce has not got it quite right.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

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

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?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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?

Crispin Blunt (Conservative, Reigate)

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?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Frank Cook (Labour, Stockton North)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Frank Cook (Labour, Stockton North)

Which one?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

John Battle (Labour, Leeds West)

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?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

Edward Garnier (Conservative, Harborough)

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.

John Battle (Labour, Leeds West)

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

Edward Garnier (Conservative, Harborough)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

Gerald Howarth (Conservative, Aldershot)

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.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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.

Edward Garnier (Conservative, Harborough)

I shall concentrate on new clause 5, which is of a slightly different character from new clause 1. My hon. Friend the Member for Chesham and Amersham spoke about the jurisdiction of the court; I shall speak about the relationship between this place and the Government in the making of treaties. I shall, no doubt, be accused of being obsessed with the problem; I bring out that little hobby-horse in most of our sittings, and by the time we have completed the Committee stage it will be pretty fit. I want to develop the arguments because they are important, relating to the extent of parliamentary involvement with the Executive branch of government when the Government sign and ratify international treaties and make reservations or declarations under those treaties.

There was some discussion of the matter in the other place on 20 March, when broadly similar new clauses and amendments were discussed. The Liberal Democrat peer Lord Lester of Herne Hill advanced several arguments. Surprisingly, he said that he was not as full-hearted a democratic as my noble Friend Lord Howell of Guildford: whereas Lord Howell, in advancing the equivalent of new clause 5 in the other place, wanted to explore the relationship between Parliament and the Government's treaty-making powers, Lord Lester said that that was taking democracy far too far. That is interesting, although he might have taken his party a little too far.

Lord Lester said that a little while ago he had introduced a private Member's Bill in the other place that required the Government to print impact statements to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. He went on to say that the previous Government had accepted impact statements, and told the House that such statements were now laid with treaties so that parliamentarians had some idea of the object, purpose and impact of any given treaty. He went on to say that he hoped that in future important treaties that the Government were minded to ratify would be referred to a Select Committee in the other place, with a view to those treaties being properly examined. He was not prepared to go as far as we would like—in the case of statute of Rome, to require the Secretary of State, prior to ratification, to lay a report before Parliament that would detail any reservations or declarations that the Government propose to make, and to require that that report should be approved by both Houses of Parliament. The Government do not intend to make any reservations, so there would not be much in that part of the report. I am not yet sure whether the Government intend to make any declarations, unless they intend that any communications made to it by the ICC, be they delivery orders or requests, should be made in English. If any other such declarations are to be made, we have yet to hear about them. As the Bill left the other place, the Government were not of a mind to introduce any such declarations.

While Lord Lester dealt with the arguments that we are now having on a constitutional level, my noble Friend Lord Howell dealt with them on a more practical level. He was worried about the consequences of the introduction of the statute into our domestic law for our citizens, especially those in uniform. Introducing his amendment, he said:

``The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1290.]

We all understand that article 120 makes life a little difficult for legislators, as reservations may not be made to the statute of Rome. That is clear in the statute, but one must assume that the French, Israelis and New Zealanders signed up to the same statute, yet those three countries, among others, have issued detailed reservations—capital R reservations rather than small R reservations, according to the language used in the other place—on signature of the statute. Those reservations may be compared with the reservations or declarations to which the Attorney-General referred, which have been entered by state parties such as Austria, Finland, Belize and Norway.

Austria, for example, has issued a declaration or reservation stating that:

``requests for co-operation and any documents supporting the request shall either be in or be accompanied by a translation into the German language.''

The Attorney-General referred to that sort of reservation. The Kingdom of Belgium declares that:

``the Ministry of Justice is the authority competent to receive requests for co-operation.''

Belize declares that:

``all requests made to it in accordance with Chapter 9 be sent through diplomatic channels.''

All those declarations or reservations are uncontroversial. The Republic of Finland declares that:

``requests for co-operation shall be transmitted either through the diplomatic channel or directly to the Ministry of Justice''.

Those declarations stand in marked contrast to the reservations drafted by France, New Zealand and Israel.

I share with the Committee some of the reservations entered by France. The first of what are called ``interpreted declarations'' states:

``The provisions of the Statute of the International Criminal Court do not preclude France from exercising its inherent right of self-defence in conformity with Article 51 of the Charter.''

Secondly, the declaration states:

``The provisions of article 8 of the Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons nor impair the other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defence, unless nuclear weapons or the other weapons referred to herein become subject in the future to a comprehensive ban and are specified in an annex to the Statute by means of an amendment adopted in accordance with the provisions of articles 121 and 123.''

As we all know, article 8 sets out the list of crimes that can be dealt with by the ICC. The French declaration is contrary to that of the Government of New Zealand, which states:

``The Government of New Zealand notes that the majority of the war crimes specified in article 8 of the Rome Statute, in particular those in articles 8(2)(b)(i)-(v) and 8(2)(e)(i)-(iv), which relate to various kinds of attacks on civilian targets, make no reference to the type of the weapons employed to commit the particular crime. The Government of New Zealand recalls that the fundamental principle that underpins international humanitarian law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that, rather than being limited to weaponry of an earlier time, this branch of law has evolved, and continues to evolve, to meet contemporary circumstances. Accordingly, it is the view of the Government of New Zealand that it would be inconsistent with principles of international humanitarian law to purport to limit the scope of article 8, in particular article 8(2)(b), to events that involve conventional weapons only.''

Two nation states that are signatories to the statute take a wholly different and diametrically opposed view as to the appropriateness, within the confines of the jurisdiction of the court, of nuclear weapons.

John Battle (Labour, Leeds West)

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.

Edward Garnier (Conservative, Harborough)

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.

Standing Committee D

New Clause 1 - Jurisdiction of the court

Frank Cook (Labour, Stockton North)

I remind the Committee that we are also considering 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.'.''.

Edward Garnier (Conservative, Harborough)

Before lunch, I was drawing to the Committee's attention the differences between the reservations or declarations of different states. The Minister called them interpretative declarations, which various states have entered. I was referring in particular to the distinction between those entered by the Governments of France and New Zealand.

The Governments of those two countries have long-standing differences about nuclear weapons testing in the south Pacific, so it is not surprising that their views on nuclear weapons generally are different. Whether we call it a reservation with a capital R, a reservation in lower case or an interpretative declaration, we are faced with the position that two sovereign countries, both state parties to the statute of Rome—France has ratified and I think that New Zealand has also ratified, although I am not sure—are taking diametrically opposed views on matters including the use of nuclear weapons in the definition of war crimes. It does not much matter whether one of them is right and one is wrong; it will cause huge difficulties for the ICC when it is set up following complete ratification.

I briefly draw attention to one or two other problems of which we should be aware following the publication of those interpretative declarations. France

``considers that the term `armed conflict' in article 8, paragraphs 2(b) and (c), in and of itself and in its context, refers to a situation of a kind which does not include the commission of ordinary crimes, including acts of terrorism, whether collective or isolated.''

That is interesting because France has suffered problems with terrorism, not only from Islamic fundamentalists but from those connected with the Corsican freedom movement. The French Government do not love terrorism any more than do the Government of our country, where we have been the victim of terrorism from Ireland and elsewhere.

The French also say:

``The situation referred to in article 8, paragraph 2(b)(xxiii), of the Statute does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law.''

Article 8.2 (b)(xxiii) of the Rome statute refers to utilising

``the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''.

One might be concerned that directing an attack upon a civilian population could amount to a war crime—I use the term loosely—by the terms of the Rome statute, but the French have made it quite clear that they do not accept that that will necessarily be the case in all circumstances.

There were relevant examples in the war against Iraq. As I understand it, Saddam Hussein deliberately placed civilians in buildings of military significance to give some form of spurious protection to those buildings. To say the least, that was bad luck for the civilians who were killed. Against their will, they were placed in a position of vulnerability when the allies legitimately attacked a site of military significance. The French are now making it clear that they will not be frightened by a Saddam Hussein who misuses his population to inhibit a French military objective. That touches on the point made by my hon. Friend the Member for Reigate (Mr. Blunt) last week: he said that the ICC and its requirements might inhibit freedom of military action. Nobody on the Opposition Benches in Committee wants military commanders to feel free to commit war crimes but, on occasion, there will be legitimate military objectives that will be inhibited unless we take the same robust line as the French.

Crispin Blunt (Conservative, Reigate)

This is an essential issue on which we must focus. Article 8.2(b)(xiii) of the statute of Rome says that a person guilty of a war crime is someone

``Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''.

I do not need to tell you, Mr. Cook, that it is not much good if one loses a war because one was not able to take a military objective owing to the fact that someone else was committing a war crime. One must be able to execute operations to win a war. To be told that we would be equally guilty of a war crime if we took out such an area—that is the implication of the statute—is a serious issue, and that is why the French clarification is so important.

Edward Garnier (Conservative, Harborough)

My hon. Friend's intervention leads me on to my next point. France's fifth interpretative declaration is as follows:

``The Government of the French Republic declares that the term `military advantage' in article 8, paragraph 2(b)(iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof.''

Article 8.2(b) states:

``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts''

will be ``war crimes'', as will the following in 8.2(b)(iv):

``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''.

No objective tests can be applicable to sub-paragraph (b)(iv) when one has to deal with adjectives such as ``excessive''.

To use an historic example, I am concerned that the modern equivalent of the bombing of the Ruhr or of the Mohne dam by the RAF might, once the ICC is up and running, constitute a serious violation under article 8. If a sensible and just decision is to be taken in relation to an allegation against a war commander—be he a civilian or military leader under article 8(b)(iv)—it will require an exchange of opinion as much as an assessment of fact. I appreciate that any opinion should be based on fact. No wonder the French have issued an interpretative declaration.

Their sixth declaration is:

``The Government of the French Republic declares that a specific area may be considered a `military objective' as referred to in article 8, paragraph 2 (b) as a whole if, by reason of its situation, nature, use, location, total or partial destruction, capture or neutralization, taking into account the circumstances of the moment, it offers a decisive military advantage.''

In our excitement and enthusiasm in ensuring that war criminals are brought to book, we must not lose sight of the fact that war, even in its defensive definition, is a nasty business. People get killed in war. If the United Kingdom, still less France, is attacked, there is no reason why we should not take steps to defend ourselves with considerable brutality. I do not suppose that anyone is denying us the right to respond in kind, but situations—I use that expression in the manner employed by the statute of Rome—will occasionally arise in which all manner of nasty things happen.

As I said, I am concerned that unless we, like the French, are sufficiently confident to issue interpretative declarations, our military capability will be hamstrung, and I am not sure that that is this Government's intention. I fully accept their motives in wanting to get the Bill on the statute book as quickly as possible, and in wanting to become one of the first 60 ratifiers of the statute of Rome. We have been in Committee for some time and the Bill has been round the course in the other place. I am concerned that, in their altogether laudable desire to achieve their ends, the Government are mindless—in the sense of unwitting—of the fact that we cannot enact the Bill or adhere to the statute of Rome in a vacuum.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

When I was moving new clause 1 this morning, I did not have the advantage of a translation of the original French text. At the time, I thought it impolite to read the French text to the Committee without the benefit of a translation. However, after translating small portions of the text, the Library staff confirmed my suspicion that the opt out and the accompanying measures in the French legislation will not exonerate a French person who has committed a war crime. It was said in the debate that the French authorities want to take advantage of the transitional period to check that the guarantees introduced in the statute are effective, and to avoid any possible abuses impacting adversely on the French situation. Does my hon. and learned Friend agree that the French are pursuing this matter in a sensible manner?

Edward Garnier (Conservative, Harborough)

Yes, I agree wholeheartedly, and I say that as someone who has many reservations about certain aspects of French domestic and foreign policy—under both the current French Government and their predecessors. None the less, when French people and French Governments of whatever political colour consider the issue that is most important to them—the integrity of the French Republic—they do not shrink from putting French interests first. That does not mean to say that in doing so they are careless of the need to abide by civilised standards of conduct in peace and in war.

In due course, I shall turn to the seven-year opt out under article 124, but there seems nothing inimical in the French's interpretative declarations. Nothing has served to undermine the French Government's enthusiasm for, or the cogency of arguments in favour of, setting up the court. I regret that, even if my arguments may brush this Government's imperial hem from time to time, in terms of votes I am powerless to persuade them to change their minds.

I should remind the Committee of one or two other matters that the French thought it important to get on the record before signing up to the treaty. Their sixth interpretative declaration continues:

``The Government of the French Republic considers that the provisions of article 8, paragraph 2(b)(ii) and (v)''—

which are:

``(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives''

``(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives—

do not refer to possible collateral damage resulting from attacks directed against military objectives.''

That reinforces the point that I was making a moment ago: war is a beastly business. When using heavy artillery to direct high explosives at a legitimate military target from some miles away, it is inevitable that not every missile, projectile or shell will hit the intended target, and undefended civilian dwellings and buildings may be damaged as a consequence. The French have had the common sense to recognise that and to say to the world at large, ``Get real.'' Regrettably, we do not seem to be sufficiently courageous to do that.

The seventh interpretative declaration states:

``The Government of the French Republic declares that the risk of damage to the natural environment as a result of the use of methods and means of warfare, as envisaged in article 8, paragraph 2(b)(iv)''—

that is:

``(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated—

must be weighed objectively on the basis of the information available at the time of its assessment.''

The French are asking the court to do precisely what I was talking about a moment ago, when I was concerned that sub-paragraph (b)(iv) required the application of a subjective test, not an objective one. If the Government recognise the good sense of the thrust behind declarations 1 to 7 as put out by the French—

Committee suspended for a Division in the House.

On resuming—

Edward Garnier (Conservative, Harborough)

I have outlined the French interpretative declarations and, beyond reminding the Committee of my remarks this morning, I will not refer to the New Zealand declarations because they are on the website for all to see. No doubt all members of the Committee will be familiar with the New Zealand interpretative declarations.

I shall give the Committee an idea of the different sorts of declarations that are appearing. That entered by the state of Israel is more like an essay on the history of Israel. It states:

``Being an active consistent supporter of the concept of an International Criminal Court and its realisation in the form of the Rome Statute, the Government of the State of Israel is proud to thus express its acknowledgement of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity.''

After describing how Israel was one of the originators of the concept of the international court, it continues:

``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool. Today, in the same spirit, the Government of the State of Israel signs the Statute while rejecting any attempt to interpret provisions thereof in a politically motivated manner against Israel and its citizens. The Government of Israel hopes that Israel's expressions of concern of any such attempt would be recorded in history as a warning against the risk of politicisation, that might undermine the objectives of what is intended to become a central impartial body, benefiting mankind as a whole.''

The declaration carries on in a similar vein, while supporting the concept behind the ICC.

I do not want to belittle any of those declarations, and certainly not the one made by the state of Israel. Those made by Austria, Belize and Finland are simply technical and procedural and tell the world how they wish to receive communications from the ICC, while there are other, rather discursive, declarations, of which Israel's is an example. We then have the type made by France and New Zealand. I do not suggest that our Government should have made a declaration along the lines of Israel's, and it is not necessary, given the way in which the statute is framed, for us to have entered declarations or reservations along the lines of those of Belize or Finland.

However, we should not dismiss, wantonly or lightly, the way in which the French have approached the matter. What is behind these and other considerations is not narrow nationalism, or even an unwillingness to support—as I am sure that we all do—the principles behind setting up the court, but a simple acceptance that modern actions by troops and armed forces are extremely complex, sensitive and difficult. The French have been courageous enough to tackle the issue head-on and confront those difficulties. It will not do for us, either as a Government or Parliament, to suppress those difficult questions.

Modern war involves many levels of response, and is a hugely complex issue, but, as I said before the Division, it is a beastly business. We must not, in the comfort of this Committee Room, or the policy-making rooms in Departments or party political headquarters, forget what we are about. We are considering the introduction of a code of conduct in relation to killing people. The universal jurisdiction, to which my hon. Friend the Member for Reigate referred, is no more or less than an assessment or realisation that we are talking about power, backed by military might. There can be no such thing as universal jurisdiction or a universal court unless it is backed by military power. In a civilian context, it is difficult to enforce the law without a police force, so it will be extremely difficult to enforce the law of the ICC without military might.

That has been true ever since the concept of international jurisdiction began in Roman times. The Romans were able to develop the concept of international jurisdiction in the suppression of piracy in the Mediterranean because they had the fleets to do so. In the days of our expanding empire 200 or 300 years ago, we were able to protect our trade routes and maritime trading fleet from pirates only because the Royal Navy ensured that we were in charge.

Let us not pretend, in signing up to the ICC, that we can do so in any spirit other than one that confronts the nastiness of war, the need for military might and the political will to back up our policies.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Does the hon. and learned Gentleman think that the experience of the former Permanent Court of International Justice and, post-1945, the International Court of Justice, militates against his argument that international courts require their judgments to be enforced by military power to be effective? Neither of those courts enjoyed that sort of backing and the majority of their judgments have been observed. There have been exceptions when the matter took a long time, such as the Corfu channel case, but the hon. and learned Gentleman's argument does not reflect 20th century history.

Edward Garnier (Conservative, Harborough)

I disagree with the right hon. Gentleman, because the courts that he touched on were not courts that dealt with the consequences of war, but courts that often dealt with how to prevent war. That is a different matter, and the distinction is worth remembering.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Some of the cases have dealt with the consequences of war. The Corfu channel case dealt with the mining of the Corfu straits, and that was a military matter. Whether or not the ICC operates against the background of military interchange is irrelevant to its authority. The authority of those two courts stemmed from the substantial numbers of people who subscribed to their founding statutes and who had expressed advance willingness to live by their judgments.

Edward Garnier (Conservative, Harborough)

I misheard the right hon. Gentleman and did not hear the geographical location that he mentioned. I thought that he was referring to an abstruse Japanese channel that I had not heard of. Although I have now corrected my understanding of the case to which he referred, I shall not be moved from my argument—even though I know that the Corfu channel would be of interest to any formal naval man who was in the room.

I remind the right hon. Gentleman that defendants appear before the international criminal tribunal for former Yugoslavia only because NATO troops go in, pick them out and arrest them. At last, we see the new Serbian Government charging their own soldiers, and last week, or the week before, the domestic authorities arrested 183 Serb military folk. That is an advance, and complementarity is being exercised before the ICC has been set up. The tribunal in The Hague may have encouraged such actions.

None of the previous defendants would have reached The Hague if the allies had not had been present in military strength. That is not controversial; I would have thought that it was undeniable. I am not sure whether the right hon. Gentleman is right or wrong, but he disturbs my point.

I do not wish to progress along the line taken by the right hon. Gentleman's noble Friend Lord Lester of Home Hill about exercising the royal prerogative. That is my hobby horse, and I have mentioned it sufficiently for the Committee to know my views.

I remind the Committee of the manner in which the Government briefly dealt with the important matter in the other place. The Attorney-General said that noble Lords had pointed out that article 120 of the Rome Statute states:

``no reservations may be made to this Statute. Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the fact—already found in some declarations—that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one.

We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1301-02.]

That was what the Attorney-General said more than a month ago. It may be that the Government's thinking process has moved on a touch. I remind the Government that the attitude of the French is not destructive—like them, the British are a nuclear power, have the ability to project military power well beyond the boundaries of our country, and should have a more rational and self-confident approach to the statute.

Gerald Howarth (Conservative, Aldershot)

Can my hon. and learned Friend tell the Committee what effect the reservations entered by the French have on their obligations under the treaty? They are described as ``interpretive declarations''. Is it a case of the French getting their retaliation in first in terms of the interpretation of various words in the statute?

Edward Garnier (Conservative, Harborough)

If I were a member of the new Labour party, I would say that it was called ``sending a message''. The French Government have entered the negotiations not because they like to ride in the air, but as a symbol of their diplomatic will. They are expressing their attitude about their adherence to the treaty and how they think that it should affect them. The declaration under article 124 is the only one of immediate practical effect following the introduction of the treaty. Once the seven-year period has passed, however, their interpretive declarations will affect the way in which French courts consider the matter when their citizens, or citizens of other countries, are tried in them as part of the complementarity process.

The declarations are clear: they can be matched up with articles in the statute, and, a Frenchman—and, more importantly, a French general—can see precisely where he stands. That says to me that the French Government are prepared to support wholeheartedly their soldiers, airmen and naval commanders in the carrying out of their military duties on behalf of the French Republic. That is not in this Government's mind, and I suspect that, although a given Secretary of State for Defence—even a Labour one—will not act capriciously and disloyally towards the troops that he or the Prime Minister requires to go into battle on our behalf, it must be comforting to French soldiers that there is a wording that makes it clear beyond doubt that they should not feel inhibited in the least in what they do. Any French solider who commits a war crime will be subject to French law, but, when the French courts decide whether there has been an infringement of French law, they will no doubt want to look at the declarations and the evidence relating to the particular operation under scrutiny. In the light of those declarations, they will no doubt err on the side of caution before convicting a French general, politician or soldier.

As I said a moment ago, the Government's response to Opposition amendments dealt fairly briefly with that point. The Government seem to rely on the kind of language used by Louis XIV—``I have said what I have said, and that is an end of it.'' I am not sure that that is a satisfactory way to deal with legislation, especially when, frustratingly, the legislation concerned cannot bite on the statute of Rome. It is interesting that the Liberal Democrats in the other place were happy to go along with the Government's line, despite the history of Lord Lester's practice with which we were provided in that debate. I, on the other hand, am worried that we are giving the Government the ability to give away the powers of this country, without allowing Parliament to have any purchase on the matter.

I conclude by quoting Lord Howell, who said:

``Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent?''

The lawyer, Lord Lester, was concerned that, if the course that we are now advocating were accepted, it would set a precedent. Parliament used to be a master of its own proceedings. It did not have to be worried about precedents; it just passed another law. My noble Friend went on:

``I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.

The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1305-06.]

There we have it. It is a matter of attitude whether we should behave in a particular way towards the statute.

We are taking a hugely important step in respect of the ICC. If we at any stage allow our gaze to be distracted by our enthusiasm to pass the Bill and ratify the treaty, so that we are negligent of the needs of our armed forces and careless with the demographic needs of Parliament to have some control over the Executive—which is difficult in this present Parliament—we are doing not only ourselves, but those who sent us here, a huge disservice.

Crispin Blunt (Conservative, Reigate)

It is a pleasure to speak to new clause 7 and to follow my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) who spoke to new clause 1 and new clause 5 respectively. Many of the themes that they used to support their arguments go to the heart of the International Criminal Court.

The Minister explained that we are protected by complentarity and that people will be tried first in a British court. In the usual run of events, that will be fine. If the court works as we want it to, there will be no problem—but what if there is a problem? The Government cannot say in Committee or elsewhere that the statute will work all right and there will be no problems with the ICC. They cannot guarantee that. That message runs through the declarations that have been made and the reservations that have been entered by other states upon signature.

New clause 7 refers specifically to the declaration made by the state of Israel, which may be the classic case of a state's concern about the statute. Unlike most other countries, Israel has been engaged in an almost constant battle for its survival: it has had to fight for its existence on at least four occasions. Therefore, it is unsurprising that it is the state that is the most concerned. It is supreme irony that it is the appalling crimes that were committed against the Jewish people that provided the strongest impetus for the creation of the ICC.

Paragraph 2 of the Israeli declaration upon signature was not quoted by my hon. and learned Friend the Member for Harborough, but it is especially important. It states:

``As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950's, actively participated in all stages of the formation of such a court. Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the holocaust—the greatest and most heinous crime to have been committed in the history of mankind—enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute. Responsibly, possessing the same sense of mission, they currently support the work of the ICC Preparatory Commission.''

It is a serious indictment of the statute that the state that was born out of the greatest crime against humanity of the 20th century saw fit to add the following words, which my hon. and learned Friend did quote:

``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states.''

The new clauses should not be discussed with reference to the court working perfectly, much as we all want it to. Rather, the Committee must discuss the detail of the Bill in the context of our obligation to discharge our duty to defend the United Kingdom and its global role in promoting human rights and employing its armed forces to defend liberty. Before the Committee allows the Bill to progress to the Report stage in the House of Commons, it must be confident that the court will work as intended, and that if it does not, some cover is in place for our armed forces.

We cannot put real cover in place, because we have signed the statute and it is a done deal. However, during the debate on my first amendments during the third sitting, I asked the Government to plant a flag in the ground to make it clear how we expect the court to develop. Israel has done that, as, to a degree, has France. New clause 7 draws specific attention to Israel's declaration, and it merely asks the Government to make a declaration, when the treaty is ratified, that we are aware of the Israeli Government's statement about the court, and that we will

``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.''.'.

Nothing more can be done, except in relation to article 124, which I will discuss shortly, and the ability to protect our armed forces from the provisions of article 8 for seven years. All we can do is to declare that we will sign and ratify the statute, but in the course of our proceedings in Committee send a warning that we will not give the ICC and the states parties to it a blank cheque to behave in a way that is inimical to the proper interests of the United Kingdom.

Louise Ellman (Labour/Co-operative, Liverpool, Riverside)

I refer the hon. Gentleman to a discussion in a previous sitting. Does he reject the assurances given by the Minister when reference was made to the importance of the pre-trial chamber, the appointment of judges and prosecutor and the importance of impartiality in those matters?

Crispin Blunt (Conservative, Reigate)

I do not reject those assurances, but they cannot be absolute. What the negotiators on behalf of the United Kingdom tried to achieve byu adding the pre-trial chamber to the statute during the Rome negotiations is another element in the protection against the court becoming the political tool of certain states. However, I would argue that the pre-trial chamber does not actually do that. It is supposed to put a lock on the prosecutor, but that does not prevent the three judges of the pre-trial chamber, if a victim appeals to it, from instructing the prosecutor and going on to conduct inquiries if the prosecutor decides not to conduct an investigation at the beginning of the prosecution. The pre-trial chamber, therefore, does not act simply as a lock on the prosecutor, but acts as a body that can itself receive the complaints of victims who are likely to request the court to initiate an investigation. The court might decide to initiate investigations in circumstances in which our soldiers were involved, even when we in the United Kingdom had decided that they should not face trial because we had decided the actions were wholly proper, and when our political leadership had made it clear that they thought that they were acting within international law. In such a case, the pre-trial chamber would not operate in the way intended.

I want to add new clause 7 to the Bill to give a clear indication of our concern about the direction that the court may take. My hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham speaking to the other new clauses in the group have made important points to which I want to add. Will the Minister explain the Government's understanding of the negotiations on article 124, which contains the seven-year opt out? I assume that France was the nation that pushed for that article and that exception. We understand from the record that the measure is intended to give the French seven years in which to arrive at a judgment on whether the court is working properly.

Mr. Battle indicated assent.

Crispin Blunt (Conservative, Reigate)

I see the Minister nodding in assent. The plan was that if the project went sour very quickly, after seven or even six years, and became a vehicle to chase after the United Kingdom, France and the other permanent members of the United Nation Security Council, a nation might withdraw under article 127 and ensure that its soldiers were not tried in an international court that failed to meet the expected standards of impartiality.

The reason why that is a real concern can be seen in the declarations made by the states themselves. My hon. and learned Friend the Member for Harborough went through the French reservations in detail, but one can see from those entered by New Zealand that both those countries approach the matter from different directions, especially in relation to the use of nuclear weapons. The Government of New Zealand draws

``support for its view in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (1996) and draws attention to paragraph 86, in particular, where the Court stated that the conclusion that humanitarian law did not apply to such weapons `would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.'''

That directly contradicts France, which makes clear its view that it is allowed to use nuclear weapons in its own defence.

The Minister cannot say that there is no potential problem; there clearly is if as they are likely to, the majority of non-nuclear states take the New Zealand line on the matter. The states that will be the most enthusiastic about the treaty and therefore the first to ratify it are liable to be those that take the most forward position on these issues. Their interpretation will be in line with that of New Zealand—I use nuclear weapons merely as one example—rather than that of France.

By putting a declaration into the Bill, we set an example to all the other states, not least those of the Commonwealth, that are waiting for us to pass our Bill so that they can see what it looks like before they pass a copy—in a sense—through their own legislatures as part of their process of ratification. The message that we send out is therefore immensely important. If we make it clear that we, as a nation that has a similar role to France in terms of international commitments to peacekeeping and the United Nations, will stand by France and make a similar declaration, such as appears in new clause 1, we could expect other nations that are looking to the United Kingdom Parliament to help them decide which direction to take in introducing treaty ratification legislation to make a similar declaration.

Even if new clause 1 is added the Bill, neither we nor the Minister can protect our armed forces for all time and ensure that they will face British, rather than international, justice for the crimes that they commit. We all hope that there will be no circumstances in which British soldiers, their officers or their civilian political commanders will be brought to justice by the ICC. However, the number of engagements in which we have taken part in the past serves to indicate how many we will undertake in future: it would be as well for members of the Committee to remember that there has been only one year since 1945 in which a British soldier has not died on active service somewhere around the world.

In terms of the part played by our armed forces, we are a very committed country. We cannot pretend that our role is always uncontroversial and has the wide support of the international community. We have only to look at what is happening in the skies over Iraq to appreciate the controversy that can flow from military operations that we regard as wholly proper that are aimed against one of the most despicable dictators that the middle east has thrown up in the 20th century. We must remember that many of our partners, not least the French, think that the actions of the United States and the United Kingdom are nugatory in their own terms, and that our operations do not command any degree of active support in the middle east itself.

I urge the Minister to consider the new clauses carefully. New clause 1 would send a signal to our armed forces that we are going to see how the ICC works before we put them within its jurisdiction in so far as war crimes are concerned. As the Minister rightly pointed out, that does not mean that they escape justice; they remain within the remit of English law in respect of being brought to justice for such crimes. New clause 1 would deal with the problems of interpretation to which my hon. and learned Friend the Member for Harborough referred in connection with article 8.2(b)(xxiii), and with the points made by the French in connection with article 8.2(b)(ii) and (v). They deal with collateral damage and the actions of armed forces throughout the 55 years since the end of the second world war.

In conclusion, I return to the question of Israel. In the second half of the 20th century, Israel has probably had to fight more desperately for its survival than most other states. Since 1945, we have enjoyed the privilege of not being in that position. Almost everyone in this Room was not even alive at the time of the second world war, and it is all too easy for us to believe that we will never again have to fight desperately for our nation's survival, or in alliance with others for the survival of our way of life. Until 1986, I served in the British Army of the Rhine, preparing against the Soviet hordes' piling over the inner German border. It became fairly clear that, should such an invasion take place, one's life expectancy as an Army reconnaissance officer would not be especially lengthy. We carried out our duties for real, and trained to deploy in the full expectation of such an invasion. In other words, it is not that long ago that we, in alliance with other nations, were preparing to fight for our very survival.

Because we have always been part of a coalition with overwhelming force at its disposal, and because we have almost always been on the victorious side, commanders have had time to consult a lawyer at their shoulder to discover whether their proposed actions comply with international law. That is true to an increasing degree—indeed, it is true of all the conflicts in which we have participated. Perhaps the best example was the operations over Kosovo: the target lists for the United States air force were pored over at a level as high as the White House, and whether a particular target could be engaged was, no doubt, the subject of legal advice, so it is no surprise that it took what seemed an inordinately long time for the air force to respond to target information.

However, if we become involved in a fight for our survival, we cannot afford to require our military commanders to consult the lawyers to discover whether their plans are legal. The more desperate the conflict and the less control we have over events, the rougher and readier judgments become. If we believe that all conflicts will be like the Gulf in 1990-91 or Kosovo in 1999, we are fooling ourselves. A time may come when we confront an adversary who is our equal. We may also encounter adversaries who use asymmetric threats and fail to respect the laws of war and the rulings of the International Criminal Court.

In the end, we simply do not know how we will deal with such challenges. However, we do know that the United Kingdom is a civilised member of the world community with a proud record of establishing human rights and standing firm for freedom with the blood of its armed forces and its treasure—goodness knows how much treasure we have spent during the 20th century in the cause of freedom. If we—our Parliament and country; this cradle of democracy—end up on the back end of an ICC that is in the hands of people who have a political agenda as feared by the state of Israel, we will not have done our nation any service.

I hope that the Minister will find a way of accepting new clause 1, which is important to our armed forces and will send a signal that Britain's attitude towards its armed forces is consistent with that of France. The Minister said that he would look to use words such as those suggested in new clause 7 to make a declaration that we will not accept the court becoming the political tool of those whose agenda is different from ours.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Perhaps because I belong to the generation that lived through the last world war and personally recollect some of the incidents of war and its aftermath—such as the Nuremberg trials—I take a different view about current priorities from those expressed by the Conservative Members who have spoken. They are concerned that the ICC might abuse its power, and they think that their uncertainty about that is sufficient to make it wise not to submit to its jurisdiction for seven years. That, however, must be weighed in the balance against the importance of strengthening the world's deterrents against war crimes.

The record of international institutions seems more exemplary than that of the individual nation states that comprise them. My great concern is that the laws of war will be ignored or paid mere lip service by belligerent countries if we do not take the enforcement process forward.

Crispin Blunt (Conservative, Reigate)

Will the right hon. Gentleman consider the seven-year exemption for the armed forces? Seven years will be a tiny part of the history of an institution that will be built for the future and for the whole time in which the world order remains as it is. Surely it is not unreasonable to want to see how the court develops. The soldiers whom we want to exempt from the ICC will remain subject to the justice of the countries who sign up to and ratify the statute.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am, perhaps, less bashful about the British example than Conservative Members. It would be highly desirable for the British Government, between now and the end of the seven-year period, to participate directly in the formulation of the ICC's procedures. We should not hang back to see how other, lesser nations—to use the language implicit in the new clauses—handle such issues. We have influenced the shape of the statute; let us influence the shape of the procedures and show other participating countries that this method of dealing with international outrages enjoys our full support.

We should not invoke the doctrine of unripe time, nor say that this is a suitable system only for other people, for lesser breeds without the law. This is a suitable system for us and for other countries like ours. It is quite wrong to oppose the interests of our troops in the operation of this system.

Gerald Howarth (Conservative, Aldershot)

I hope that the right hon. Gentleman does not think that Conservative Members regard other states as lesser in their commitment to the values underpinned by the statute. I hope that he will accept that our concerns arise from the fact that United Kingdom and French troops are more likely to be called upon and United States troops will undoubtedly be called upon. Many of the other countries' troops will not be called upon, or if they are, only small numbers of them will be involved.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I do think that Conservative spokespersons have indicated that they regard the other countries that will participate in the ICC as less reliable than us when it comes to implementing the best procedures. They have argued that other people cannot be trusted to operate the statute without political bias and motivation, and that such people will do so not according to the rule of law, but as a result of various pressures. That is what Conservative Members are arguing, which means that they regard other countries as less bound by the rule of law and justice.

Tony Worthington (Labour, Clydebank and Milngavie)

Does the right hon. Gentleman, like me, doubt the argument that has often been put that United States and British troops are more likely to be involved in those activities? If one examines which troops are involved in UN activities, one discovers that the Bangladeshis and the Nigerians are heavily committed. Those forces are not dominated by Britain and the United States--that is not the pattern.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. Gentleman makes an exceedingly powerful point. It is interesting that he represents Clydebank and Milngavie, which is part of our country that was subjected to outrageous abuses of the laws of war in the second world war. The weight of argument for the rapid implementation of the statute is in the interests of both soldiery and civilians. We do not want to see our soldiers engaged in more international fighting than we can possibly avoid. That is one of the underpinnings that help the arbitrament of violence in the international community in place of war.

I heard two comments, one of which came from the hon. Member for Chesham and Amersham, which disapprovingly referred to the litigious age in which we live. I wish it were true that the settlement of international disputes were by the law rather than by force, which is the method that has characterised the 20th century. Certainly, it is preferable that such matters, including international crime, should end up in the courts, and not in victor's justice. The victors are not always guiltless. For many long years, the victors in eastern Europe were barbarous Russians who inflicted holocausts scarcely less terrible than those of the Germans, to which the hon. Member for Reigate referred. That was victor's law but the courts would have been preferable.

I do not think that the hon. Member for Harbourgh offered his comments in an entirely pejorative sense, but he spoke with some distaste of a codification of the law on the killing of people. It is true that that adds to the corpus of the laws of war, but it is nothing new. There were laws of war in the middle ages, which were to some extent observed with greater rigour than such laws have been in early modern times. It has been part of mankind's progress to build on the development of the theories of the jurists, the Jesuits, Suarez, Vittorio and Grotius in developing laws of war. What has always been missing is the means of giving effect to the agreed norms.

To ask us to wait for another seven years is to betray a lack of urgency in the face of a problem that is very present. It is not a theoretical problem; scarcely a year goes by without violations of the laws of war.

Edward Garnier (Conservative, Harborough)

I fear that I was wasting my time even more than I thought. The right hon. Gentleman's remarks bear no relation to my contribution. I did not suggest that I disapproved of adding war crimes to the corpus of law. The point that I was making, which the right hon. Gentleman has not addressed, is that this court can be effective only if it is backed up by might or power. The jurists in mediaeval times were able to improve the way in which war was conducted because their thoughts were backed up by practical power. We cannot get away from that.

I do not mind a Liberal Democrat insulting me or misconstruing what I have said, but the right hon. Gentleman's comments should have some bearing on what I actually said. I invite him to reconsider his remarks.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am happy to reconsider what the hon. and learned Gentleman had to say. If I have misconstrued his remarks, I certainly do not wish to pursue the point. However, I do not resile from the earlier point that I made in answer to his argument about might being essential when international law tries to make itself effective. I do not think that that is necessarily the whole truth. The existence of laws acts as an inhibition on infractions. The possibility that perpetrators of crime may be brought to justice has a bearing on international behaviour. That case is supported by the record of the International Court of Justice and the Permanent Court of Justice.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I, too, shall examine the record carefully to see what the right hon. Gentleman attributed to me in my contribution to the debate. I was expressing concern on behalf of Sir Charles Guthrie and Admiral Sir Michael Boyce, who seemed to feel that we live in an increasingly litigious society. That was reflected in the comments of Admiral Sir Michael Boyce when he gave evidence to the Select Committee. The right hon. Gentleman needs to be very careful before he imputes a motive to my hon. and learned Friend or me. It would have been better if he had attended rather more of the Committee's proceedings and heard the thrust of our arguments throughout. I hope that he will carefully consider what he has just attributed as the motive of my intervention on the new clause. He is incorrect.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I have sat for many hours, and will no doubt sit for many more, without complaint, listening to arguments that are made perfectly in order but not unfamiliarly. Indeed, the arguments have been deployed with such frequency that I think it unlikely that I would have misconstrued them. The hon. Lady, who spoke for nigh on 35 minutes on new clause 1, made few points that she had not made in discussing earlier amendments or at another stage of the Bill's consideration.

There seems to be no reason to believe that the implementation of the Bill and the ratification of the statute will put our troops at risk of a lower standard of justice than that which they would expect from the British courts. There is little evidence to suggest that that anxiety is strongly held in the country's military circles. If there were such evidence, it would have been more comprehensively deployed in our debates.

Reference has been made en passant to Sir Michael Boyce's evidence to the Select Committee. I venture to suggest that his was not a considered contribution to our discussions, and important though his views are, he does not seem to have focused squarely on the issues before this Committee.

John Battle (Labour, Leeds West)

I have the minutes of the exchanges that took place with Admiral Sir Michael Boyce. The question was:

``Do you have any other areas that have not emerged from the discussion we have just had where you think it would be right in order to maintain operational effectiveness, in order to maintain the military ethos in this country and the morale of the people serving in the armed forces, that we should provide additional legal protection against some of these hazards?''

Admiral Sir Michael Boyce replied:

``I am as confident as I can be at the moment that we are taking what actions we need to in the light of legislative Bills coming forward to have exemptions where appropriate. Three or four years ago we were not well set up.''

He repeats similar assurances later. It is therefore unfair to keep citing Admiral Sir Michael Boyce as though he were opposed to the provisions in the Bill.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am extremely indebted to the Minister for putting those words on the record. He removes the last shred of evidence in support of the view that the military are worried about the matter. Candidly, if the military were seriously worried about it, we would have heard about it directly.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The right hon. Gentleman fails to appreciate the debate that has taken place. I have some of the cuttings that surround the discussions—headlines in The Daily Telegraph such as ``Forces chiefs warn war crimes Bill will put troops' lives at risk'', ``Forces fear war crimes threat'' and ``Could British pilots face trial for bombings?'' I could go on. I am willing to let him have copies of those articles. He fails to appreciate the great debate that has surrounded the matter and the fears that have been voiced in evidence, in public and in military circles.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. Lady mentioned all those matters in her contribution on Second Reading. To be candid, she has produced no further evidence, only rather tenuous references to unnamed people. I do not believe that the Committee should give weight to rumours that have emanated from her friends in the press, because they are without substance or weight. It is futile to reiterate such points.

Crispin Blunt (Conservative, Reigate)

Having been a special adviser to the Ministry of Defence and a soldier, I believe that the right hon. Gentleman is unfair if he expects the Chief of the Defence Staff and other serving soldiers to break cover and make it clear that they are against the Government's policy. They advise the Government in private, and carry out the Government's instructions, as long as they are within the law. The right hon. Gentleman is wrong to expect the Chief of the Defence Staff to be able to make the point, and also to be able to make it in public.

The most that one gets from serving soldiers is stories such as those referred to in the press. From my experience, the serving military have a pretty limited focus on the matters we are discussing. Most of them will be unaware of proceedings, just as commanding officers were wholly unaware of what we were planning to do to their powers when we passed the Armed Forces Discipline Act 2000.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. Gentleman's case was answered by the Minister. He read the question that had been put to Admiral Sir Michael Boyce, which would have allowed him to express precisely the concerns that have been dribbled around the Committee, and he would have felt no inhibition. Serving officers have a loyalty to the House when they are questioned by Select Committees, and may speak freely about any concerns that they may have. That is not an innovation and it is well known. Conservative Members have nothing on which to build their gossamer case.

Tony Worthington (Labour, Clydebank and Milngavie)

May I assist the right hon. Gentleman to whip up even more frenzy? Does he agree that a real problem with the Bill is that we may create a situation in which the only people who appear before the International Criminal Court are those from losing nations and poor nations? We should give an undertaking that our troops, American troops and French troops must, at some stage, be subject to the Bill.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am grateful to the hon. Gentleman again. Far from stirring up frenzy, I think that I have emulated the late Lord Whitelaw by stirring up apathy.

The point made by the hon. Member for Clydebank and Milngavie (Mr. Worthington) is perfectly valid. If we submit to the jurisdiction of the court, we say to the world that we are prepared to put our own troops in the same position as those of other subscribing nations. There is no reason why we should seek to exempt them, because we feel that the justice that will be meted out by the ICC will be of the highest standing. Our confidence may lie in the improbability of our troops being charged with crimes against the laws of war.

The Conservative party is unwilling to subscribe to the statute and the Bill in terms, and prefers to wave a jingoistic and nationalist flag--which it usually does in a different context. It is, at best, willing the ends, but refusing to deliver the means. I hope that such arguments, which have been round the course several times, are blowing themselves out in Committee, and that we progress rapidly to debate the Bill on Report.

Gerald Howarth (Conservative, Aldershot)

It is wonderful that the right hon. Gentleman has been sparked into action and into something of a frenzy, although he is probably the only source of apathy, and he has not attended all our sittings. In his last few days as a Member of Parliament, I am sure that he has many responsibilities that he wishes to discharge before taking leave of us. We shall be sad to see him go, but it is unfortunate that his parting shot is to cast aspersions on my colleagues.

I readily accept that the right hon. Gentleman takes a different view from Conservative Members. He places greater reliance on the effectiveness of the court, and he does not believe that there is any likelihood of an abuse of power. I remind him that it is our responsibility to ensure that measures are not passed into law that are likely to imperil our troops on whom we call to take action in support of Britain's national interest or in the defence of these islands. That is entirely right and proper. Our constituents expect us to take such action, and it is our job as the official Opposition to probe every angle to ensure that the Bill is watertight and that our fears are allayed.

We must consider how matters may develop in future. It is not sufficient to take the words of the statute at face value as though that is how the situation will remain for all time. That is not a prudent way in which to proceed. I strongly support new clause 1, and we have put forward a strong case for it to be accepted. It would not challenge the fundamental nature of the Bill. It would not challenge the treaty. Indeed, its provisions are specifically provided for in the treaty.

I am not sure whether Ministers said that the UK Government or the French were in the van of ensuring the existence of article 124. The French have entered specific reservations, but why was it right for them to do so? The right hon. Member for Caithness, Sutherland and Easter Ross is more of a Euro-fanatic than I.

Edward Garnier (Conservative, Harborough)

That is not possible.

Gerald Howarth (Conservative, Aldershot)

It is possible, although I have excellent Euro credentials. The right hon. Gentleman dismissed lightly the worries of our French counterparts. The French were right to enter such reservations, and I do not understand why this country cannot do the same. We are not rejecting the treaty or the Bill for all time, but merely saying that we should take advantage of article 124 and see how things go.

My hon. and learned Friend the Member for Harborough said that the French, given how they want such slightly abstract phrases to be interpreted, will give comfort to their troops. It is a pre-emptive strike. We, I fear, will hobble our troops. The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) said that the existence of these laws is an inhibition--I hope that I have quoted him correctly. I am sure that he is right. We all want them to be inhibitive—we want them to constrain military action so that it does not transgress the rules of war as laid down in the statute. However, we do not want to inhibit the actions of our troops in such a way as to put them at greater risk and inhibit them in the prosecution of their duty, which is to fight.

My hon. Friends have referred to the evidence given in Committee by the Chief of the Defence Staff. I am sorry that the Minister sought to dismiss the Chief of the Defence Staff's concerns, as he expressed them clearly. On page 145 of the minutes of evidence to the Select Committee on 6 March in relation to the Armed Forces Bill, Sir Michael Boyce stated that it was unlikely that a British service man would be brought before the ICC because the national court would have the opportunity to investigate the case first. My hon. Friend the Member for Grantham and Stamford (Mr. Davies) then asked:

``Is it good enough to hear that it is `unlikely to happen', or would you prefer to have a more concrete exemption or derogation or protection in law?''

Sir Michael responded:

``I cannot say that `unlikely' fills me with huge confidence. I would be much happier with a completely unequivocal statement, but I guess that is probably the best I will get.''

He continued:

``If there are ways which guaranteed that the word `unlikely' could be removed, that would be more comforting.''

The Chief of the Defence Staff could not be more explicit in his reservations, but he acknowledges that that is the best that he is likely to get. He is, of course, answerable to the Government, and will not express publicly his reservations unless he feels strongly about them and is advised by others.

As for the contention of the right hon. Member for Caithness, Sutherland and Easter Ross that we have no evidence to adduce, I freely admit that I would not rely on the veracity of The Guardian—I put rubber gloves on when I am forced to read it. However, given the comments of my hon. Friend the Member for Reigate (Mr. Blunt), who served and has contacts in the armed forces, and given the conversation that I had with a recently retired senior officer in the Army, it is nonsense for the right hon. Gentleman to suggest that the armed forces are not expressing real concerns. That is why new clause 1 is important—it would provide a breathing space to see how the court pans out.

Provided that our proceedings run long enough and we progress sufficiently expeditiously to arrive at schedule 8, we shall deal with some practical examples of how the incorporation of certain war crimes in our statute book could present us with problems. It is important to think in practical terms when considering the military's reservations.

My hon. and learned Friend the Member for Harborough referred to the concerns of the French about the deployment of nuclear weapons. The only occasion on which nuclear weapons were deployed was against Japan in 1945, when horrendous damage was caused. We acknowledge that huge casualties—that is the euphemism—were inflicted on the civilian population, and environmental damage was caused.

The Minister must answer the following question: if the British Government were to decide, in a future conflict, that their only option was to use nuclear weapons, could the service personnel responsible for deploying them be liable to prosecution under the Bill? No British court would prosecute the captain of a bomber that had delivered theatre nuclear weapons, because he would have acted under the auspices of the British Government and Parliament. That is where the problem would arise: the ICC might accuse the United Kingdom of refusing or being unwilling to prosecute, and of shielding people who have been responsible for widespread environmental damage and the death of many civilians. That is why we have reservations about the court's involvement in such matters, and the Minister must reassure us on that.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Will the hon. Gentleman clarify his comments? Was he speaking of nuclear weapons alone, or of methods of war that a commanding officer might deem necessary to achieve his military ends? It sounded as though he was referring to the latter situation. If that is the case, it appears that he is claiming that the laws of war should not constrain British troops, and few service men would subscribe to that view.

Gerald Howarth (Conservative, Aldershot)

The right hon. Gentleman might have misunderstood me. I was referring to actions taken by British troops that are fully authorised by the Government of the day. I was not thinking only of nuclear weapons, although their use provides the most obvious example of the type of military attack that I had in mind. The effects of the bombs that were dropped on Hiroshima and Nagasaki make it clear that it is almost impossible to deploy nuclear weapons without incurring civilian casualties and considerable environmental damage.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. Gentleman is getting into very dangerous waters. He appears to be suggesting that if the Government authorises a particular form of warfare, it must be justified, regardless of the laws of war. That doctrine was rejected at the Nuremburg trials, and in particular with respect to the Ardeatine cave massacre, when the Berlin Government authorised—indeed, instructed—the shooting of many Italian hostages to slow down the German army's defeat in Italy. The perpetrators of that massacre were hanged. In my judgment, that was a reasonable punishment for the crime.

I think it unlikely that a British Government would similarly transgress the laws of war, but if they were to do so, I fail to see any valid argument for not subjecting them to the arbitrament of justice.

Gerald Howarth (Conservative, Aldershot)

I would understand and share the right hon. Gentleman's strength of feeling if British troops were to commit war atrocities, such as those that are set out in article 8, which include torturing captives and forcing them to fight on our side against their own people.

However, my point is that Ministers keep assuring us that the court will not apply to us. In the other place, Baroness Scotland reassured Lord Shore by stating that

``The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.]

I can foresee a case in which that might happen and have tried to give an example—perhaps, thank God, it is an extreme example because it does not look as though nuclear weapons will be resorted to in the foreseeable future. It was thanks to the previous Government that we maintained a strong nuclear defence, which ensured that such a situation did not occur. It could arise, however, in other circumstances—recent examples are the bombing of Belgrade and the Chinese embassy. Is a radio station a military target if it contains only civilians but is pumping out military intelligence information? We may think it justified to bomb such a target, whereas the court may take a different view. What happens then? Can we rely on the assurance of Baroness Scotland?

I conclude by referring to the important remarks made by Lord Shore during the same debate. He was involved in the second world war and mentioned the two categories of war to which my noble friend Lord Tebbit referred. Lord Shore said:

``But there is also a third category—all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.'' —[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.]

The Committee must bear in mind the fact that if we are not to hobble our troops and put them at additional unjustified risk, and if we are to protect the interests of our country, we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.

John Battle (Labour, Leeds West)

This is the 21st Standing Committee on which I have served, and occasionally the Committee has risen to the debate. The Opposition's amendments have cut to the heart of some serious concerns and questions, and I thank them for that. We have not frivolously wasted time, but have tried to get to grips with serious issues. The right hon. Member for Caithness, Sutherland and Easter Ross made an eloquent, telling and passionate intervention, and his commitment to the Bill is second to none. No one would dismiss him as a dewy-eyed, young idealist. He may be an idealist, but everyone would respect him as a man of practical reason, whose experience and wisdom is worth listening to.

The right hon. Gentleman said that our aim should be to strengthen deterrence. We hope that the court will not be used, but act as an international deterrent. He argued that an international institution, such as the one that we are trying to build, will do more to meet that aim than can any individual nation state. I agree with him and hope that that will be the banner behind which we consider and support the Bill and carry it through in practice.

The right hon. Gentleman said that we should not invoke the doctrine of unripe time. I think that he was saying that we cannot defer matters for ever until we find the perfect statute that all other countries in the world have signed and then agree to join it. We do not have the luxury of being in that position. We should be putting in place a deterrent—I would hope a preventive measure—which is backed up by argument. At one point, I nearly leapt up to intervene in his speech. It may amuse other members of the Committee to know that in my mis-spent youth I studied the works of the medieval theologian, Thomas Aquinas, who was reinterpreting Aristotle on the just war. He tried to argue the role of reason against the use of force. He suggested that reason could overcome force and that we should not accept the view that might is always right. He implied that human beings together could in a reasonable way transcend violence. That is what the Bill is about.

I am sure that we all agree with the hon. Member for Aldershot (Mr. Howarth) that we should not pass measures into legislation that will imperil our armed forces. I do not always agree with him, but his sudden enthusiasm for the French is rather strange and surprising, and most welcome. He rightly said that definitions of the crimes will be considered later in the Bill under schedule 8. As usual, we are debating in the middle of the Bill measures that will be tabled as Opposition amendments in later proceedings.

I shall do my best to reply to the arguments advanced in favour of the three new clauses. We shall continue to emphasise that we are determined to ensure that our armed forces are protected properly under law. That is the case in Britain and we want it to continue ad infinitum. I reiterate that the Government have never intended to take out the seven-year opt out on war crimes provided under article 124 of the Rome statute. There is no need to do so. To use a parliamentary and legal word, we are ``content'' with the definition of war crimes under the statute. We do not need to prepare ourselves to accept them, as the French suggested that they did. They are crimes under international law by which our military are already bound.

I am sure that the Committee agrees with the principle that we condemn war crimes and believes that those who commit them should be punished. We should not exempt ourselves from that. If we decide not to be bound by the war crimes provisions, we shall weaken the case internationally when condemning war crimes committed by other states. The right hon. Member for Caithness, Sutherland and Easter Ross made a telling intervention. I hope that the argument was not being advanced for exemption from the rules of war, because our armed forces sign up to such rules and know what they are dealing with. We know that war is nasty and brutal. It is within the brackets of the rules of engagement and the laws of war. We must never step back from that.

Crispin Blunt (Conservative, Reigate)

Presumably the Minister will reject the new clauses, given that he is making the case for the United Kingdom not taking a view under article 124 or making a declaration. Will he put it clearly on the record that he does not agree with the position taken by the New Zealand Government in their declaration about how the articles should be interpreted?

John Battle (Labour, Leeds West)

I shall come on to New Zealand. The hon. Gentleman asked me about France. I reinforce the fact that only one country has taken the opt out so far. We are aware of no other country planning to do so. None of our other NATO allies has done so and eight have ratified within NATO.

Opposition Members might like to reflect on Lord Kingsland's words. In the other place on 20 July, during the debate on the adoption of the Rome statute, he said:

``There is, however, one immense drawback . . . the drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes.''—[Official Report, House of Lords, 20 July 1998; Vol. 592, c. 626.]

Even the Front Bench spokesman in the other place agreed with the Government in 1998 that there was no place for an opt out. We agree, and I hope that I can encourage Opposition Members to agree with their Front Bench spokesman in the other place.

The matter is not subject to division. We can be proud of our armed services and their record in abiding by international law in their operations. Our armed forces are already bound and trained to observe international law, and do so. The international criminal court statute does not make criminal any activity now carried out legitimately under that law by service personnel. Views in the other place were tested on that point on Report. We cannot make clearer our view on the opt out.

On the history of the opt out, I remind hon. Members of the words of my right hon. Friend the Foreign Secretary in the debate on 20 July 1998:

``I shall not pretend to the House that we put forward that concession or that we would have wished to see it as part of a negotiating position''

—referring to the opt out—

``but it does not strike at the heart of the court—

as the hon. Member for Aldershot conceded—

``and was well worth agreeing to in order to get aboard a number of countries that would not otherwise have supported it.'' —[Official Report, 20 July 1998; Vol. 316, c. 812.]

We are creating an international institution, and we must negotiate to do so. Our views are more than plain, and we shall continue to spell them out if necessary.

The matter was one for New Zealand. We cannot answer for every other country's interpretation and say whether it might be the same as ours or different or why a country has expressed its views in the way that it has. Whether we reject the declaration of New Zealand is irrelevant to what we do here, but we cannot answer for New Zealand directly.

In interventions on the right hon. Member for Caithness, Sutherland and Easter Ross, Opposition Members waved about a sheaf of press cuttings. I hope that that sheaf of press cuttings contains a letter from The Guardian—I shall not repeat the comments of the hon. Member for Aldershot—which is a printed document, from the former head of the British Army legal services, Major General Tony Rogers, which states:

``When carrying out attacks on military objectives, we are already under a treaty obligation not to cause disproportionate incidental loss and damage to the civilian population. The Geneva Conventions have been put to the test recently. I am not aware we had any difficulties complying with our treaty obligations during the Gulf War of 1991 or the Kosovo war of 1999''.

That speaks for itself.

Gerald Howarth (Conservative, Aldershot)

I invite the Minister to consider why the major general used the word ``disproportionate'' in respect of incidental loss of life when the treaty contains no such word.

John Battle (Labour, Leeds West)

I am sorry?

Gerald Howarth (Conservative, Aldershot)

The word ``disproportionate'' mentioned in the letter that the Minister just quoted does not seem to appear in article 8.2(b)(iv).

John Battle (Labour, Leeds West)

It is implicit in article 8.2(b)(iv), which refers to:

``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''.

I suggest to the hon. Gentleman that in writing a letter to The Guardian and using the word ``disproportionate'', the major was putting a few words together to form one word, but the intention was more than plain.

The hon. Member for Reigate asked a similar question and, if I remember rightly, he was pressed by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) about the case of the soldier and his colleague whom he knew well—I think it was his driver—who was subject to international criminal jurisdiction, and whether that prevented the individual from making the right decisions. The hon. Member for Reigate said that the answer was no. That exchange clarified what we have said all along—the creation of the ICC will not inhibit the proper conduct of duties by our armed forces. The hon. Gentleman assented to that in an exchange on the Floor of the House.

Crispin Blunt (Conservative, Reigate)

The matter is extremely important. There would have been no difference to Corporal Henry in the circumstances under the ICC, and it made no difference that he was subject to the Yugoslav court. However, the moment that someone such as Corporal Henry is taken before the ICC because of a complaint by the families of people who may have been killed by him in action, and we find ourselves, having decided that he had committed no offence, in the position that he was tried by the ICC, for ever after every soldier would be concerned about how he took part in action. The concern is about what would happen if such an event occurred.

John Battle (Labour, Leeds West)

If a soldier in Britain commits an offence, he comes before our courts.

Des Browne (Labour, Kilmarnock and Loudoun)

To allow the response to the intervention to be retained within the same context, one must bear in mind that the same soldier, when pursing his legitimate aims, was subject to the jurisdiction of the International Criminal Tribunal for former Yugoslavia, the jurisdiction of which was not complementary to the jurisdiction of our courts, but was overriding. The soldier was subject to exactly the same risks after being exposed to them by the actions of the previous Government.

John Battle (Labour, Leeds West)

My hon. Friend's point about troops who are under ICTY jurisdiction has proved that it does not hamper operations. In such a respect, Corporal Henry would not be any more likely to face trial by the ICC than he was of prosecution by the ICTY.

I pray in aid General Colin Powell, who commented on the code of law in the Department of Defense report to Congress on conduct of the Persian Gulf war. The matter relates to the notion of the hon. Member for Reigate about military personnel with a lawyer over their shoulder. Colin Powell said:

``Decisions were impacted by legal considerations at every level, the law of war proved invaluable in the decision making process.''

That statement stands by itself. United Kingdom service personnel are investigated and will be prosecuted in the UK for breaking the rules and laws of war now. That does not prevent them from doing their job. The rules of engagement are a product of international and domestic law and of operational requirements. Given rules of engagement are made to comply with the law through that rigorous procedure of checking through the Ministry of Defence, the prospect of those rules providing the basis for a case against a soldier, sailor or airman who follows them is inconceivable.

On my desk there is a handbook entitled ``Documents on the Rules of Law'', which has been around for some centuries. A corpus of opinion has built up around these matters, and it may be worthwhile in the context of the launch of the ICC to spell that out as background, so that we are all well aware of the context in which our personnel will operate. I pray in aid Judge Richard Goldstone, who was the prosecutor for the international tribunal for former Yugoslavia. He was asked on the ``Today'' programme on 8 March what he thought of the fears of the top military brass about the proposals that we are discussing. He said:

``I have no doubt that the fears are without justification at all. Firstly the war crimes defined in the Rome Statute are really the most serious crimes intentionally committed. In the second place . . . the ICC . . . will not have the jurisdiction at all...over a British citizen if the British military or civil courts investigate in good faith any allegations made.''

He said that he hoped that the ICC would get under way in 12 to 18 months. Any investigation, regardless of its outcome, conducted by a country into one of its own citizens robs the ICC of any jurisdiction. We must not forget that rule of complementarity.

Crispin Blunt (Conservative, Reigate)

I agree with all the points that the Minister has made about how the court should operate, but he should consider what would happen if the court did not operate as intended.

John Battle (Labour, Leeds West)

We must also consider the parameters of the court. I sometimes think that the Opposition fear loopholes where there are none: for example, they expressed concern in relation to naval warfare, with reference to your good self, Mr. Cook. There is explicit provision in relation to article 8 for war crimes to be interpreted within the established framework of the international law of armed conflict including, as appropriate, that law as it applies to armed conflict at sea. Therefore, the Navy is covered.

On Second Reading in the House of Commons, my right hon. Friend the Foreign Secretary stated clearly and unambiguously:

``British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.''—[Official Report, 3 April 2001; Vol. 366, c. 222.]

That will happen first, so the ICC will not get a look in. That point is sometimes neglected by the Opposition.

Gerald Howarth (Conservative, Aldershot)

I am sorry to press the Minister on the matter, but I must challenge the assertion that the ICC cannot possibly second-guess a bona fide examination by our national courts. I cannot accept that there are no circumstances in which a case considered in good faith in this country and dismissed could not be subject to being second-guessed by the ICC.

John Battle (Labour, Leeds West)

The rules state that the ICC will consider only cases that the country in which the accused resides is ``unwilling and unable'' to prosecute. We have been clear about that in our discussion of handing over and arresting people, and we cannot go back over that ground. The ICC will not get a look in, because such cases will be tried here first under the rules and laws of war in this country. Our rules of engagement in international military operations comply with United Kingdom domestic and international legal obligations. In the past, that has resulted in rules of engagement that differ between national contingents of our forces. We must not forget that British forces and operational deployments are subject at all times to military law, which is United Kingdom domestic law within the context of the Geneva convention and its annexes to which we have signed up previously.

I emphasise that the ICC statute does not create a new law. It does not ban the use of weapons that have been in our arsenal or been the subject of our procurement process. The laws dealing with weaponry are created under the United Nations convention or are part of our customary international law. No new ground will be created, and arguments to the contrary are smokescreens or red herrings. I agree with the right hon. Member for Caithness, Sutherland and Easter Ross that we can argue that there are loopholes in the Bill, but when those loopholes have been rebutted they should not be used to suggest that our intention is not to let the court get off the ground. I do not suspect that to be the Opposition's motive: I accept their arguments in good faith and believe that, like us, they want to ensure that we achieve the best Bill possible. I hope that I have given Opposition Members the reassurances for which they have asked on new clause 1.

New clause 5 would require the Government to seek parliamentary approval of reservations and declarations before ratification. Under article 120 of the Rome statute, no reservations may be made to the statute; accordingly, the Government will not be making any, nor will we be taking the war crimes opt-out under article 124. My right hon. Friend the Foreign Secretary made it clear on Second Reading that we expect to make a declaration on ratification in accordance with article 87 on such matters as our wish that ICC documents to be sent to us in English. Similar declarations on ratification have been made by eight other states. When ratifying an international treaty, it is usual practice for states to make an interpretive statement showing their understanding of certain provisions should they wish to do so. We have to make a final decision whether we shall produce such a statement. Of the 29 states that have ratified the statute, only two have made interpretive statements—and the second was a response to the first.

One of the reasons why so few states have made interpretive statements is that the ICC is not obliged to take such statements into account. As reservations to the statute are not permitted, states cannot make any declaration that purports to modify the legal effect of the statute—nor do we wish to modify the legal effect of the statute. We have no difficulty with it as drafted. There was a consensus in favour of it, which is why we signed it, and it was welcomed in this House and in another place in 1998.

Edward Garnier (Conservative, Harborough)

We all know about article 120, and several members of the Committee referred to it earlier. Why did those other countries produce such declarations if they are of no effect?

John Battle (Labour, Leeds West)

Again, I am being asked to answer for the statements of other countries. I can answer only for our intentions, and I could not have made it clearer that it is not the practice of the current Government, nor has it been the practice of previous Governments, to make subject to prior parliamentary approval declarations that we intend to make on ratification of international treaties. What the new clause asks of us has never before been required of a Government. Declarations to previous treaties have not been subject to that procedure, including the treaties on which the crimes under the statute are based, such as the Geneva convention, the additional protocols and the convention on the safety of United Nations and associated personnel. Opposition Members have signed up in the past to the provisions that we are asking them to sign up to now without seeking prior parliamentary approval, and it is not necessary that they do so now.

As for new clause 7 and declarations, my noble Friend Baroness Scotland said in the other place that the Government would be happy to keep the Opposition in touch with our thinking. That position remains the same. We are listening, but we do not see the need to deal with the matter in the Bill. We shall return to it at the appropriate time.

We and numerous other countries spent years negotiating the Rome statute, the rules of procedure and evidence and other documents to give the necessary safeguards to ensure that the court will fulfil its mandate in a professional, independent and impartial manner. We supported the court on that basis. The House welcomed the principle in July 1998 and we debated it again in October 1999 and on Second Reading. Rather than question whether we want to ratify it at all, as the right hon. Member for Caithness, Sutherland and Easter Ross said, the new clauses should be withdrawn. They are unnecessary and could weaken the Bill substantially. Given that, in the other place, assent has been given to our proposals rather than the proposals in new clause 1, and given that, in new clause 7, Opposition Members have assented to exactly the provisions that were inserted in the Bill previously, I see no reason for them to change their approach now.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

We have had a good debate on the new clauses. I do not intend to detain the Committee with a lengthy response to the Minister's comments. I can see the relief on the faces of members of the Committee.

We have attached a great deal of importance to new clauses 1 and 5, and we do not feel that either is overly ambitious. They constitute simple requests to put safeguards in the Bill. In reference to the unlikely but possible event of a junior person coming before the International Criminal Court, the much-quoted Admiral Sir Michael Boyce, in his evidence to the Select Committee, said:

``If there are ways which guaranteed that the word ``unlikely'' could be removed, that would be more comforting.''

All that we have sought to do is to provide that comfort.

I am sad that the Minister is not able to accept the new clause. We have flagged up our concerns throughout the proceedings and I am not satisfied by what the Minister has said. To indicate the strength of feeling, especially on new clauses 1 and 5, I want to put the new clause to a vote.

Motion made, and Question put, That the clause be read a Second time:—

The Committee divided: Ayes 5, Noes 12.