International Criminal Court Bill [Lords]

Public Bill Committee, 3 May 2001.

Standing Committee D

New Clause 2 - Government responsibility to maintainlaw and order

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

In proposing new clause 2, I would like to apologise to the Committee for my unavoidable absence this afternoon. The Government, in their wisdom, have timetabled a discussion on the Floor of the House that means that I am required elsewhere. The fact that I will not participate in the final sitting is meant as no disrespect to the Chair, the Minister, or any member of the Committee.

As you can see, Mr. Cook, I am not rigged for silent running—I am running rather noisily. I would like to thank you for good-naturedly chairing the Committee. Last week British Gas mistakenly informed my husband that I was the late Cheryl Gillan; in the course of proceedings, I know that you have been called the late Mr. Cook, but I hope that you will never be described as I was—not in the next 10 years, at least.

I thank the Ministers for their forbearance and their constructive and informative approach to the Bill on most occasions—[Interruption.] If the Solicitor-General finds that the cap fits, I am sure that he will wear it. Even in their absence, I thank my hon. Friends for providing strong support, and I thank my hon. and learned Friend the Member for Harborough (Mr. Garnier) for ably leading the discussion on the delicate legal issues arising from the Bill. I thank everybody for their help and support, and I am sure that this afternoon will proceed even more rapidly without me.

I hoped that the Minister of State, Foreign and Commonwealth Office, would seriously consider accepting new clause 2. He has not approached me, so I presume that there is not a snowflake's chance in Hades of him accepting it. However, it would include in the Bill almost the identical words as those in article 8.3 of the Rome statute, which reads:

``Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.''

The new clause reiterates that, but widens it slightly. It reads:

``Nothing in the ICC Statute shall affect the responsibility''.

I presume that that is the intention of article 8.3; the new clause is our interpretation of it.

The purpose of the new clause is to offer protection. Earlier this week, we saw a first-class job carried out by our police service in controlling a potentially serious and riotous situation on the streets of London—civil unrest. The police are to be congratulated on a successful operation carried out legitimately and against the background of last year's similar protests and violence, which resulted in mayhem and fairly dreadful criminal activity on the streets of our capital city.

The purpose of the new clause is to highlight the circumstances surrounding civil disorder and the actions that any future Government may need to take to keep the peace and to defend the country. We are trying to ensure that the country can maintain control over its internal matters without the inhibition of potential interference from the ICC. In circumstances involving an event of greater gravity than this week's demonstrations—in Northern Ireland, for example, or in any other part of the UK for that matter—it is important to ensure that the ICC could not begin an investigation, raise charges or issue warrants to prosecute personnel who had been engaged in any controlling activity.

The matter was pursued in another place by my noble Friend Lord Howell of Guildford, who expressed it extremely well vis-a-vis Northern Ireland. I have no hesitation in referring to his words. He said:

``The current inquiry into the events of Bloody Sunday in 1972 in Northern Ireland is revealing various new facts and aspects''—

as all members of the Committee will be aware. He continued:

``It could conclude that no further action is justified and all the truth, rumours and legends have come out. Our Government would then decide that that was the end of the matter. Could the International Criminal Court then step in on such a matter of civil order and pursue the investigations on the grounds that they had not been dealt with thoroughly enough? The amendment''—

the drafting of which is the same as the new clause—

``would ensure that should another such event occur . . . and should the animosities, miseries and hatreds of that event be perpetuated, the Government would be within their rights in maintaining and establishing law and order throughout the United Kingdom.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 50.]

The Government's response to the amendment in the other place was brief: they merely gave an assurance. Conservative Members still feel that it should have been included in the Bill and, given that the Minister is so keen to follow the statute, cannot understand why it has not been so included. When people examine the legislation in future, it is surely better that the Government's intentions in formulating it should be clear. If there is no problem with the new clause—which is the impression that I gained from the Government's reaction in the other place—I do not understand why the Minister cannot accept it, and must ask him to explain.

John Battle (Labour, Leeds West)

The new clause repeats the language of article 8.3, except that the phrase

``Nothing in paragraph 2(c) and (e)''

is replaced with

``Nothing in the ICC Statute''.

It concludes with the words ``at its disposal.'' I put it to the hon. Member for Chesham and Amersham (Mrs. Gillan) that the new clause would have absolutely no legal consequence whatsoever. Keeping the big picture in mind, we must always remember that the Bill will not be retrospective. When the hon. Lady referred to the inquiries in Northern Ireland, she read the words, ``should another such event occur''. That was helpful, because the Bill covers only future events, not those that have already happened. That applies even to inquiries into current events.

I am happy to give the hon. Lady the assurance that the Opposition seem to be seeking: nothing in the ICC statute affects the Government's responsibility or ability to maintain law and order and national defence by legitimate means. For the avoidance of any doubt, article 8.3 of the statute, which relates to war crimes and internal conflict, provides the cover. We should note that the same reassurance is given in additional protocol 2 to article 3 of the Geneva conventions, to which we are party. Of course we believe that it is important for the ICC to have jurisdiction over crimes committed in internal armed conflicts. The vast majority of conflicts in today's world are not between states but internal, within countries' borders. The provisions in the Rome statute and additional protocol were designed to give states reassurance that the specific provisions regulating internal armed conflicts in no way affect their responsibilities to defend their territory and maintain law and order by legitimate means.

Such a reassurance is appropriate in an international treaty, but it would be entirely unnecessary and inappropriate to replicate such a provision in domestic criminal legislation. That is not just the Government's view; there is common precedent for it. As we have already mentioned, the Geneva Conventions (Amendment) Act 1995, which implemented the two additional protocols to the Geneva conventions, was passed and agreed to by the previous Government. That Act did not repeat nor specifically refer to article 3 of additional protocol 2 for an obvious reason: it would have been unnecessary.

I see no reason to depart from the previous Government's stance on such matters. There are no substantial or convincing arguments that Opposition Members have actually changed their minds on it. I hope that that will reassure the hon. Lady that the amendment is unnecessary, and that she will feel able to withdraw it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister's response is not unexpected and, at the very least, highlights the need for future interpreters of this law—when it becomes law—to ensure that the treaty is read alongside it. More importantly, our consideration of the Bill in Committee will play an important role in such interpretation, and confirm the Government's pick-and-mix attitude to the statute. Pepper v. Hart was a sensible ruling.

It still seems illogical for the Minister to rely on something that is in the statute of Rome and not included in the legislation, and to assure us that it is taken into consideration and implied in the Bill, when he rejected, for example, new clause 1 and the operation of article 124 of the statute. I do not want to turn this into a workshop on article 124, on which we have already had lengthy discussions, but it seems that there are inherent dangers in the Government's approach to the ratification process. They rely on wording contained within the statute on one occasion but not on another. That leaves potential difficulties for future generations.

The Minister has, however, revealed his hand. I am sure that he has strict riding orders not to accept any form of amendment to the Bill. I therefore beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3 - Defence against unlawful use of force

Edward Garnier (Conservative, Harborough)

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

The new clause would create a defence against what would otherwise be an unlawful use of force, or one that was alleged to be unlawful. It would allow a person to defend himself, others or property if it were

``essential for accomplishing a military mission''.

There are many obvious examples of such a thing.

Subsection (2) sets out the defence

``on the balance of probabilities'',

which is, as I think that we would all accept, the test for establishing any defence in criminal law.

Subsection (3) creates a defence

``to any allegation under the ICC statute''

about a person's conduct. The defence of duress from

``a threat of imminent death or . . . imminent serious bodily harm''

is created. Subsection (3)(b) refers to a person acting

``necessarily and reasonably to avoid this threat.''

As Conservative members of the Committee have mentioned before, we are concerned about the conduct of our armed forces, and the new clause has their concerns in mind. It cannot be right to have no defence available that one was defending oneself or others in what the ICC would otherwise judge as an unreasonable use of force.

I am acutely aware of clause 56 of the Bill, of article 31 of the statute of Rome, of section 3 of the Criminal Law Act 1967, and of the common law. Although I am somewhat reassured by existing English law, we must consider the context of the new ICC jurisdiction and the way in which it will touch on prosecution of our own subjects or those who are likely to be tried in English courts under the complementarity rule. I therefore seek reassurance that the Government have those points in mind, and will be able to translate the current state of English criminal law into the new jurisdiction.

Ross Cranston (Labour, Dudley North)

I can give the assurance that the hon. and learned Gentleman seeks. We have deliberately not introduced into the Bill the defences available under article 31 of the ICC statute. As the hon. and learned Gentleman has said, we are incorporating domestic law defences under clause 56—an approach adopted in previous legislation such as the Geneva Conventions Act 1957—because existing defences under our own law, which the courts use every day, are the best defences for individuals. Of course, under domestic law, defences of self-defence and of duress already exist.

I am sure that the hon. and learned Gentleman's assertion that the defendant must establish the defence of self-defence on the balance of probabilities was a slip of the tongue. If the issue is raised, the onus is on the prosecution to exclude that particular defence. Any move away from such a defence would reduce the protection of individuals.

Edward Garnier (Conservative, Harborough)

I wish it had been a slip of the tongue. I relied blindly on speeches made in the other place, and I wish that I had been a little more careful in my preparation.

Ross Cranston (Labour, Dudley North)

The hon. and learned Gentleman realises that the onus is on the prosecution to exclude the defence of self-defence—a principle set out in section 3 of the Criminal Law Act 1967 and in common law. The substance of subsection (1) of the new clause is therefore already dealt with in domestic law, as is the substance of subsection (3), given that duress is also recognised in domestic law.

Gerald Howarth (Conservative, Aldershot)

Can the Solicitor-General remind me whether the principles underlying Pepper v. Hart apply to proceedings in Committee, as well as to ex cathedra statements by Ministers at the Dispatch Box on the Floor of the House?

Ross Cranston (Labour, Dudley North)

Yes, Pepper v. Hart covers statements made in Committee. Defences available in domestic law are incorporated into the statute only where the legislation is ambiguous, but in this case the legislation is clear.

Given that the new clause does not pick up certain defences such as intoxication and mental incapacity, it could be argued that it would reduce the protections available to individuals under our law on the principle that by specifying certain defences, other defences, which are recognised by our domestic law, would not be available under the Bill. There is therefore a danger that the new clause would be self-defeating.

We do not pick up the defences specified in article 31, and, as I have said, domestic law recognises all of them. It could be argued that we are not dealing adequately with defendants, which returns us to the complementarity argument. If we do not deal with people properly, the ICC can say that it has jurisdiction under article 17, which is another problem with the new clause.

Gerald Howarth (Conservative, Aldershot)

Is the Solicitor-General saying that notwithstanding the fact that there is no defence of intoxication in our domestic law, because article 31 specifically provides for that defence, our courts would also be required or able to rely upon that in respect of someone being tried in the United Kingdom?

Ross Cranston (Labour, Dudley North)

The position on intoxication in our domestic law is quite complicated. There is limited recognition of a defence of intoxication, but it depends on whether the intoxication is voluntary or involuntary. It also depends on an arcane aspect of our criminal law as to whether the offences are ones of basic or specific intent. In as much as there is a defence of intoxication under article 31, I can give the assurance that that is reflected in our domestic law.

The only difference in terms of the new clause moved by the hon. and learned Member for Harborough concerns the provision about defensive operations. In moving the clause, he has picked up the language of article 31, but used it in the opposite way to that intended in the Rome statute. Article 31.1(c) states:

``The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph''.

That is fairly straightforward. Our armed services are not involved in aggressive, as opposed to defensive, operations. That sort of defence, which is encapsulated in the new clause, is unnecessary. Incorporating it would be inconsistent with our obligations under the statute.

The defence encapsulated in the new clause is not recognised in our domestic law.

Gerald Howarth (Conservative, Aldershot)

I am hugely heartened by the Solicitor-General's confidence that British troops will not be involved in defensive action.

Ross Cranston (Labour, Dudley North)

No—the other way round.

Gerald Howarth (Conservative, Aldershot)

We would not be able to be involved in any aggressive action. I am sorry; I misunderstood the hon. and learned Gentleman.

Ross Cranston (Labour, Dudley North)

In conclusion, I assure the Committee that those defences are available in our domestic law, save for that one exception. Previous Governments also adopted our approach, and on that basis I ask the Opposition to withdraw the new clause.

Edward Garnier (Conservative, Harborough)

We had two purposes in initiating this debate. One was intentional, the other was not. The main intention was that we should hear the assurances that the Solicitor-General has given us, for which I am grateful. The other purpose, the unintentional one, was to demonstrate that I had not done my homework. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4 - Reporting of consultation between the ICC and Secretary of State

Edward Garnier (Conservative, Harborough)

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

The new clause allows me once again to take out of the Committee stable my hobby horse on the problem of trying, when debating legislation, to get some purchase on a treaty—which, of course, we cannot do. I hope that the Committee will take as given my concerns about that; perhaps they could read earlier copies of the Official Report.

John Battle (Labour, Leeds West)

We are well aware of them.

Edward Garnier (Conservative, Harborough)

I am glad to hear that the Minister is well aware of my concerns. I have a suspicion that he increasingly shares them.

The Opposition's worries about the issues lying behind the new clause were well explained by Lord Howell of Guildford in the Committee proceedings in the other place on 12 February, starting at column 115. I shall briefly paraphrase his arguments, and invite the Minister to respond a little more fully than did Lady Scotland of Asthal.

New clause 4 is self-explanatory. It allows a brief discussion on the issues that we have already discussed. It is a continuing concern of mine, as I have tediously mentioned, that we are debating these matters in a vacuum. The Government should be aware of the concerns of this legitimately elected Parliament that it can do nothing about how the Government exercise their prerogative powers. The new clause attempts to make some headway in redressing the balance between the powers of Government and of Parliament.

I have no doubt that it is much celebrated in the Labour party, but it is much regretted by the Opposition, that there has been a huge change in the balance of power between Parliament and the Executive during the past four years. Parliament has almost become a rubber stamp for the activities of the Prime Minister's official spokesman.

Tony Worthington (Labour, Clydebank and Milngavie)

The hon. and learned Gentleman will have to improve his performance.

Edward Garnier (Conservative, Harborough)

I did not know that the hon. Gentleman was performing; he has yet to get on to the Richter scale in this Committee.

We saw a wonderful example of how the Executive completely overrides Parliament during yesterday's Prime Minister's Question Time.

Frank Cook (Labour, Stockton North)

Order. I am having difficulty working out how the hon. Member's comments relate to new clause 4.

Edward Garnier (Conservative, Harborough)

Let me ease your difficulty, Mr. Cook. You might remember that, on Tuesday, I discussed the opinions of the French and New Zealand Governments on whether the use of nuclear weapons came under the definition of war crimes in article 8 of the statute. It seems highly relevant—to Conservative Members, at least—that the United Kingdom is one of the few nuclear powers and that the decision to launch a nuclear attack in response to such an attack on us or for another legitimate strategic military reason lies with only one person: the Prime Minister. Entirely coincidentally, a question arose yesterday as regards the announcement by the President of the United States about the nuclear shield.

Frank Cook (Labour, Stockton North)

Order. I understand all that—I lived through it. However, I am still puzzled as to its relevance to the issue of reports and consultation between the ICC and the Secretary of State.

Edward Garnier (Conservative, Harborough)

If the Prime Minister decides to send off nuclear missiles, and civilians are killed as a consequence, he could, if one agrees with the New Zealand Government, be guilty of a war crime. However, if one agrees with the French Government, he could not be. I am using shorthand, but if the New Zealand argument wins the day, the ICC might require the Prime Minister to respond to the warrant. New clause 4 refers—surprise, surprise—to the delivery of warrants, although not to the delivery of nuclear weapons. However, in the context of the Bill and the ICC's jurisdiction, one cannot dissociate oneself from the two.

It is interesting that even in huge strategic military questions—

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

Will the hon. and learned Gentleman give way?

Edward Garnier (Conservative, Harborough)

In a moment; I am having fun. Even when dealing with matters of huge importance, such as the use of nuclear weapons, one cannot wholly forget that the ICC will have to have procedures that bite on the potential defendant if it is to work.

The treaty is unamendable, but the Bill is not. The Bill is the only means that we have to inform the world of our concerns about the way in which the treaty exposes the Prime Minister, who has the nuclear key.

A moment ago, I mentioned Mr. Alastair Campbell—by inference, if not by name—because he seemed to take a different and more powerful view of protection against nuclear weapons than the Prime Minister.

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

The circumstances that the hon. and learned Gentleman envisages are ridiculously remote. Does he accept that any decision to fire nuclear missiles from this country would involve retaliation, and that our NATO allies would have a view about that? Furthermore, if there were any retaliation, the last thing that anyone would be worried about would be serving warrants. Presumably they would be more worried about radiation fallout and millions of dead people.

Edward Garnier (Conservative, Harborough)

That is an interesting point. If the last thing that we should be thinking about is serving warrants, what is the point of the Bill and the statute? That comes back to very point that I made on Tuesday, although the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was exercising his customary absence, no doubt for important reasons. He did not seem to take my point. The statute works only with the exercise of military power behind it. [Interruption.] You know, Mr. Cook, from my performance this morning, that none of this has been rehearsed.

Frank Cook (Labour, Stockton North)

I could be persuaded otherwise.

Edward Garnier (Conservative, Harborough)

I do not want to engage in side discussions outside the terms of the Bill, but as I understand it, the only choreography that has been engaged in between political parties with respect to the constitution of the United Kingdom—and certainly with reference to the British mainland—has been between the Liberal Democrat and Labour parties. The Conservative party has maintained a healthy distance from both. [Interruption.] I am being diverted. I promised the Committee a brief discussion on the new clause. The Minister is well aware of the points raised in the other place in support of the new clause. I enjoyed my brief discussions with the hon. Member for Ilford, South (Mr. Gapes) and others, including you, Mr. Cook, although, now that I have done that, my reputation is in danger of becoming something other than I should wish.

John Battle (Labour, Leeds West)

I thank the hon. and learned Member for Harborough—

Frank Cook (Labour, Stockton North)

Order.

John Battle (Labour, Leeds West)

I apologise, Mr. Cook. I shall try to remember to face you and not the Back Benches.

The hon. and learned Gentleman moved the amendment with refreshing and characteristic frankness, but buried in his wide-ranging comments was a theme that he has consistently presented to the Committee and that goes wider than the Bill: the relationship between the powers of Government and Parliament. He has also consistently raised the way in which we sign up to statutes internationally, procedures by which we might change them before they come before us, and our relationship to them. Those are largely legitimate questions that might be raised elsewhere in the House in the future.

The new clause would require the Secretary of State, following consultation with the ICC, formally to lay before the House of Commons a report on a proposed or actual warrant. As the hon. and learned Gentleman acknowledged, Lord Howell of Guildford introduced an identical provision in Committee in the other place. The premise on which the new clause appears to founded is the Secretary of State's refusing a request for surrender. It is important to mention that, because I cannot emphasise enough the question of complementarity: the court comes into play only if this country refuses—if it is unable or unwilling—to take action.

I assure the Committee that, when appropriate, matters relating to requests from the ICC will be brought to the attention of Parliament in the usual way, without the need for a report to be formally laid before Parliament. That has been the practice on many occasions in the past. It is what happened in the case of General Pinochet: the reasons for the decisions of my right hon. Friend the Home Secretary were brought to the attention of the House and the usual procedures were used; private notice questions and other mechanisms were employed. The procedures under the new clause for laying an additional report before Parliament could undermine the effectiveness of a proposed ICC warrant.

I shall give an example from a real case involving a warrant issued by the international criminal tribunal for Rwanda for the arrest of a Rwandan person accused of genocide. We were aware for some months before the warrant was issued that the person was likely to be indicted. Had we been following the procedures proposed in new clause 4, we should have had to lay a report before the Select Committee on Foreign Affairs giving details of the proposed warrant. That report would, no doubt, have excited press interest and examination, greatly increasing the likelihood of the suspect absconding. If the procedure were to become as formalised as is specified in the amendment, it could be self-defeating.

In addition, we should remember the principle of complementarity, which will ensure that the ICC will be able to assume jurisdiction only when a state is found to be genuinely unwilling or unable to conduct an investigation. We do not anticipate being in that position. The Rome statute was the result of delicate negotiation. A balance had to be achieved that would protect our service personnel, but allow the ICC to retain its teeth in relation to states that might try to carry out domestic investigations in bad faith in order to protect their own personnel. The balance is right. We do not need to introduce the new clause and to do so might undermine the procedures that we want to see followed.

Edward Garnier (Conservative, Harborough)

I am crushed. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn

New Clause 5 - Ratification: reservations and declarations

New Clause 8 - Amendments of the ICC Statute

Crispin Blunt (Conservative, Reigate)

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

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

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

John Battle (Labour, Leeds West)

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

Crispin Blunt (Conservative, Reigate)

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

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

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

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

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

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

John Battle (Labour, Leeds West)

San Marino?

Crispin Blunt (Conservative, Reigate)

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

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

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

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

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

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

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

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

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

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

Crispin Blunt (Conservative, Reigate)

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

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

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

Edward Garnier (Conservative, Harborough)

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

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

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

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

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

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

Crispin Blunt (Conservative, Reigate)

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

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

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

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

Gerald Howarth (Conservative, Aldershot)

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

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

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

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

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

Gerald Howarth (Conservative, Aldershot)

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

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

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

with the following particular caveat—

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

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

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

Ross Cranston (Labour, Dudley North)

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

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

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

Crispin Blunt (Conservative, Reigate)

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

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

On that matter, Parliament must properly be consulted.

Ross Cranston (Labour, Dudley North)

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

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

Crispin Blunt (Conservative, Reigate)

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

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

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

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

Crispin Blunt (Conservative, Reigate)

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

Motion and clause, by leave, withdrawn.

Frank Cook (Labour, Stockton North)

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

Edward Garnier (Conservative, Harborough)

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

Frank Cook (Labour, Stockton North)

Yes, indeed.

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

Schedule 3 agreed to.

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

Schedule 4 agreed to.

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

Schedule 5 agreed to.

Clause 38 ordered to stand part of the Bill.

Schedule 6 agreed to.

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

Schedule 7 agreed to.

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

Clause 49 - Power to make provision for enforcement of other orders

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 59, in page 25, line 14, at end insert

`, and

(c) orders relating to the payment of reparations to victims of crimes within the jurisdiction of the Court and from the Trust Fund established under Article 79'.

In speaking briefly to the amendment, I take the opportunity to pay tribute to some of the organisations that have taken the time and trouble to take a great interest in the passage of the Bill—Simon Burrell at the One World Trust, Clare Crawford at Save the Children and Christopher Hall at Amnesty International, as well as Christian Mitchell, who has been very instrumental in helping to prepare for the scrutiny of the Bill. I particularly pay tribute to Sherman Carroll of the Medical Foundation for the Care of Victims of Torture, who has been pressing for the amendment and has been the inspiration behind it.

Clause 49 empowers the Secretary of State to make regulations to enforce fines, forfeitures or reparation orders issued by the ICC against a convicted individual. The Foreign Secretary takes credit for the stand that he supported taken by the British delegation at the Rome conference in 1998, especially on article 75 of the statute, which covers reparations to victims. However, article 79 envisages the establishment of a trust fund by decision of the assembly of states parties for the benefit of victims of crimes within the jurisdiction of the court and of the families of such victims.

Article 79 provides that the trust fund will be established by a decision-making process, and that the court may order money or other property to be collected through the fines or forfeiture, which will be transferred by order of the court to the trust fund. The trust fund itself was to be managed according to criteria that are eventually to be determined by the assembly of states parties. Given that the Foreign Secretary was keen to claim credit for the British stance over reparations, it is surprising that clause 49 should be silent on the United Nations trust fund as laid out in article 79.

Clause 49 will lead to a number of regulations, most being related to the fines and forfeitures to be levied against convicted perpetrators, and others making provision for reparations to victims. I know that the Medical Foundation and other bodies would welcome the opportunity to comment on the regulations. I may not be in the Room when the Minister responds to the amendment, but I hope that he will offer such an opportunity to the Medical Foundation and its representatives.

The foundation has examined and treated about 25,000 survivors of torture and organised violence since 1986, and last year 5,026 new patients from 96 countries sought its help. It hopes that the regulations will reflect the long-term need for rehabilitation of the many thousands of survivors of torture and other gross violations of human rights who reside within the jurisdiction of our courts.

John Battle (Labour, Leeds West)

I would compliment organisations such as Amnesty International, Save the Children and the Medical Foundation. However, I remind the hon. Lady that the Bill is part of a legislative process. To the best of my knowledge, those organisations have been kept in close contact throughout the formation of the legislation. They were engaged in the consultation process, and they also had access to officials in the other place as the legislative process went through the other place and the House of Commons. They have had at least two or three meetings with officials during the process. We will do our best to meet their concerns.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful for that intervention. I do not complain about access. However, the Minister has still not satisfied some of their concerns. I therefore feel justified in putting their concerns on the record. Indeed, it seems that no one else will speak for them, so I am obliged to put forward what I believe are sensible recommendations. I know that they have urged the Government to refer explicitly in the Bill to the future of the UN trust fund. They believe that the financial assets of the convicted perpetrator will often not be enough to met the compensation needs of victims and their families.

The Canadian Government have already created such a fund in the context of the ICC. If Canada can do it, why cannot we? If Canada can do it, why cannot we? The Medical Foundation and others certainly believe that the Government should do something similar. Even if the Minister does not want to create a separate British trust fund, the Bill should at least refer to the international fund and to article 79. There should certainly have been an indication of our intention to contribute to such a fund, because the finances are unclear.

It is not only the Medical Foundation that has voiced concerns. Amnesty International's copious and detailed notes on the ICC state:

``The ICC can also award compensation to victims from a special Trust Fund. Canada's implementing legislation provides for a national Crimes Against Humanity Fund. This will receive money obtained through enforcement of ICC orders and voluntary donations. Canada's Attorney General is empowered to make payments from this Fund to the ICC's Trust Fund, to victims and to their families. We are disappointed that the UK Government has not followed this positive example.''

This is not the first time that the matter has been raised with the Government; it was raised throughout the consultation process, although I felt that that process was short and rushed, and it resulted in a fairly scrappy document being prepared for January 2001. There is only a small reference to the issue in the discussion of clause 46. Paragraph 64 deals with the Government's response and states:

``The criminal injuries compensation scheme would also apply if the crimes of violence were committed in the UK. In view of the domestic mechanisms already in place, the Government sees no practical benefit in creating a domestic ICC Trust Fund.''

That is not in the spirit of the negotiations, the fund's inclusion in the originating statute or the way in which organisations carried out their lobbying. I hope that the Minister will not be as brief as the Government were in their response to the consultation process.

The proposed Scottish legislation is also silent on the fund. It would be helpful if the Minister could lay out the position in Scotland as regards the trust fund and reparations and explain how that will dovetail with the existing provisions.

I will not be present for what I trust will be the substantive part of the Minister's response, although he might get a couple of minutes if I sit down now. However, my hon. and learned Friend the Member for Harborough will pursue the matter. If the Minister does not satisfy us, we might need to put the matter to a vote.

I am glad to have had the opportunity to speak about this issue on behalf of the Medical Foundation and others who have found that their requests have fallen on deaf ears, despite consultation with the Minister. I understand that he might be hidebound and unable to alter the Bill because of his riding orders, but he should examine the issue seriously, particularly in the light of the well-meaning and reasonable representations that have been made to the Government.

Edward Garnier (Conservative, Harborough)

I want to ask one or two questions about article 79 of the statute and about the trust fund set up by treaty. What would we accept as a trust fund under English law? Are there trustees and so forth, or are we talking simply about a bank account that is administered by the ICC? Many things are called trusts although they are not trusts in law. The National Trust is a classic example because it looks like a trust but is simply an organisation. It is perhaps a corporate organisation, but it is not a trust.

Secondly, if it is a trust fund in the English sense, where will the money be deposited? Will it be invested, or will it be kept in an interest-accruing account; and, if so, where will that account be held? If the trust is allowed to make investments, where will those investments be made? Will they be made through the London stock exchange, the Frankfurt exchange or internationally through a number of exchanges? A number of obvious questions occur to one as one investigates the trust fund.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee, without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee D

Clause 49 - Power to make provisons for enforcement of other orders

Edward Garnier (Conservative, Harborough)

Before we adjourned, I had invited the Minister to examine the relevant article of the statute of Rome, which touches on the trust and the trust fund, and asked several questions about it. I do not need to say any more as the Minister knows the general thrust of my questions. He will also have listened to the points made by my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan).

John Battle (Labour, Leeds West)

I refer first to the role of non-governmental organisations, which have made representations about the theme of the trust. On 22 March 2001, in a speech before the United Nations Commission on Human Rights, I said:

``I cannot over emphasise the importance of the positive contribution of NGOs to human rights...I believe they are our eyes and ears on the ground and the voice of our conscience. It is vital that we all give a hearing to and listen to that voice.''

Amnesty International, the Medical Foundation for the Care of Victims of Torture, Save the Children and other bodies have been involved in the background work to the clause. They are the eyes and ears on the ground and often draw the attention of the world to those victims who suffer as a result of gross war crimes and genocide. I pay tribute to those organisations. Throughout the negotiations on the Rome statute and during the preparation of the Bill, the Government have listened to the voice of NGOs.

Last year, the Minister then responsible for such matters, my hon. Friend the Member for Neath (Mr. Hain), held three separate meetings with NGOs, specifically on the ICC. I made a point of meeting a wide range of NGOs, including Amnesty International and the Medical Foundation for the Care of Victims of Torture, as soon as I took over the responsibility for human rights issues. I discussed the ICC with them. I emphasise that point: they have had—and rightly so—regular contact with the Bill team and the organisations that are grouped in the coalition for an ICC. We welcome that and encourage them to remain engaged throughout the process.

We have considered carefully all suggestions made by NGOs before, during and since the consultation process began and have taken on board many of their helpful and constructive propositions. Amendments were made in the other place that related specifically to their concerns. Such matters were taken on board and built into the Bill. However, I know as one who was involved for many years in NGOs that we shall not be able to go as far and as fast as they would want. Their role is to lead us into new areas and ours is to consider such issues and reach decisions within our parameters.

We have been aware of the views of NGOs for some time and I am glad that, at last, we are discussing the concerns, interests and needs of the victims. Obviously, it is the victims of war crimes in places such as Rwanda and East Timor that have made the case for the ICC so compelling, but it cannot be only about punishment and deterrents. We have spent much time discussing arrests and warrants, but he ICC is about giving justice to victims and building the basis of future reconciliation.

My right hon. Friend the Foreign Secretary mentioned on Second Reading that the matter of reparations for victims of ICC crimes is one on which our negotiators in Rome worked particularly hard. We are pleased that article 75 of the statute secures the right of victims to reparations and that article 79 provides for a trust fund to be established for the benefit of victims. It is enshrined in article 79 that the trust fund will exist.

I entirely understand the motivation of the NGOs and the Opposition and the tabling of the amendment. We, too, care passionately about such matters, but the Bill enables us fully to implement our obligation with regard to articles 75 and 79, and the amendment is not needed to put that in the Bill.

Clause 49(1)(b) specifies that the Secretary of State will make provision by regulations for the enforcement of

``orders by the ICC against convicted persons specifying reparations to, or in respect of, victims.''

As the ICC can issue orders only for reparations against convicted persons, that covers all possible situations in which the ICC may ask us to enforce such an order. Similarly, as a result of regulations, we shall be able to enforce any fines or forfeitures ordered by the ICC against a convicted person. The Secretary of State will automatically transfer the proceeds obtained to the ICC or, if requested by the ICC, to the ICC trust fund.

I confirm to the hon. Member for Chesham and Amersham that we would be happy to share the draft regulations, once they are prepared, with the Medical Foundation and to other interested parties, and receive their comments and consultation.

The hon. and learned Member for Harborough (Mr. Garnier) asked detailed questions about how the trust fund would function, such as how it would be set up, whether it would have a bank account, and where the investments would be. Those details have not been decided, but will be determined by the assembly of states parties when the criteria for the trust fund are determined. Another reason to ratify early is so that the hon. and learned Gentleman's questions—which are fair—may be put in that context when the body is properly up and running.

Provided that those criteria permit voluntary contributions, as we expect, the Government and any individual, company or institution will be open to contribute voluntarily to the ICC trust fund for victims. There will be no obstacle to our contribution to that fund in the same manner in which, over the past three years, we have already contributed £200,000 to the UN trust fund to help least developed countries to participate in negotiations about the ICC.

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

Will my hon. Friend explain what could be lost by not accepting the proposal on the trust fund, and what difficulties might be encountered if we attempted to amend the Bill?

John Battle (Labour, Leeds West)

The amendment is unnecessary, because the measure is implicitly built into the Bill. Discussing the matter makes it explicit. There will be no misunderstanding of intentions—a trust fund will be set up. The hon. and learned Member for Harborough is correct that the fund should have a bank account with proper signatories, and there should be a clear, transparent knowledge of how access to the money is achieved.

My hon. Friend the Member for Liverpool, Riverside (Mrs. Ellman) invited me to examine the wording of the amendment. It is incorrect to mention orders relating to payments from the trust fund. There is a technical matter that accepting the amendment would denature the Bill, because payments from the trust fund to victims will be a matter for the ICC, rather than state parties. I do not wish to get legalistic and technical and say that I reject the amendment because it does not fit in the Bill perfectly legally. I am simply trying to take the spirit of the amendment; we share that spirit and we believe that the Bill fulfils it.

I was asked questions relating to Canada, which has progressed further than us. Canada, which has progressed further than us. If I recall correctly, it has already signed up, and it has passed into an Act of Parliament its assent and support. It is further down the line; we are not there yet. We are asked whether we can get up to speed with Canada; the very purpose of the Bill is to ratify and be among the first 60, as Canada already is, in order to get there. I do not want to be held back.

We do not believe that creating a domestic trust fund would result in practical additional benefits for victims. First, as I said, all the money collected in Britain through the enforcement of ICC orders will automatically be transferred to the ICC. Secondly, our domestic courts that hear cases under the Bill will already have powers to order compensation and restitution to victims under our laws. It is therefore unnecessary for this country to create a separate domestic trust.

Thirdly, we believe that voluntary contributions will best be made to the trust fund established by the ICC, which will obviously hear more cases internationally and involve a far greater number of victims, and will be for countries that are ``unwilling and unable''. As a country, we should be a generous contributor to that fund, rather than setting up our own fund.

I hope that the Committee will accept that we go a long way with the spirit of and intention behind the amendment. On technical grounds, it would not stand up in law, although that is not my rebuttal of the case.

The amendment is unnecessary. We accept its spirit, but we believe that that spirit is built in. I hope that the proposal will fulfil the intentions of not only the Opposition but the NGOs that have campaigned for it. The key proposal is for a trust fund set up by the ICC and supported by the British Government as a party to and signed-up and ratifying member of the Rome statute. That is our intention with the Bill, and I hope that we can proceed and fulfil it.

Edward Garnier (Conservative, Harborough)

I listened with great care to the Minister's comments and will report back to my hon. Friend the Member for Chesham and Amersham. I am procedurally barred from withdrawing an amendment moved by my hon. Friend, but I am sure that the Committee will not want me to press the matter to a Division.

Frank Cook (Labour, Stockton North)

Standing Orders do not allow me to permit withdrawal of an amendment in the absence of the hon. Member who moved it, so I must put the Question.

Amendment negatived..

Clause 49 ordered to stand part of the Bill.

Clause 50 ordered to stand part of the Bill.

Schedule 8 - Genocide, crimes against humanity and war crimes: articles 6 to 9

Gerald Howarth (Conservative, Aldershot)

I beg to move amendment No. 31, in page 72, line 13, leave out subsection (i).

Frank Cook (Labour, Stockton North)

With this it will be convenient to take the following amendments: No. 32, in page 72, line 16, leave out subsection (ii).

No. 33, in page 72, line 24, leave out subsection (iv).

No. 34, in page 72, line 30, leave out subsection (v).

No. 35, in page 73, line 24, leave out subsection (xxi).

Gerald Howarth (Conservative, Aldershot)

Schedule 8 incorporates into English law the crimes set out in articles 6 to 8 of the statute of Rome. Some of those crimes have already been taken from the Geneva conventions, and I understand that some of them have already been incorporated into United Kingdom—I should perhaps say ``English''—law.

I hope that the Committee understands that the amendments have a variety of objectives. On the face of it, no one could possibly condone any of the crimes set out in the articles—some of the most heinous crimes ever committed. Many were ostensibly committed during the second world war, but we have seen elements of those crimes more recently in Sierra Leone and in the Balkans where British troops have been deployed to try to restore order.

I spoke to the commanding officer of the 1st Battalion Parachute Regiment, Colonel Gibson, when he returned from Sierra Leone, and he told me of the sense of anger that he and his fellow members of the regiment felt. He said, ``The atrocities that we saw committed by the terrorists in Sierra Leone made our blood boil.'' Children with their arms and other limbs mutilated and other such atrocities gave them a real sense of purpose in the mission that they had been called upon to carry out on behalf of the British people and the Government. As the Committee knows, one member of the Special Air Service died in that operation, so it was not without risk, or, indeed, loss of life. It was made clear to me that they felt a strong sense of purpose in seeking to put right the injustices that had been wreaked on the civilian population of Sierra Leone.

In no sense do I resile from the horror of the atrocities listed, but some of the amendments are designed to be probing amendments while others are designed to extract a response from the Government to deal with the real concerns that have been expressed by senior military officers. The Committee will be pleased to hear that I will not rehearse the arguments again or regurgitate quotes from senior officers that have been heard extensively in Committee. The Committee knows that real concerns have been expressed, as I explained to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). A senior Army officer who recently retired told me of his concern that the measure could hobble our troops—those going into battle to try to put right some of the ills that afflict the world.

Some of the arguments that I wish to deploy in favour of the amendments were rehearsed earlier when we debated new clause 1. At the end of my contribution, I said that

``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.''

I entirely accept what the Minister said in response:

``We shall continue to emphasise that we are determined to ensure that our armed forces are protected properly under law.''—[Official Report, Standing Committee D, 1 May 2001; c. 247-48.]

I do not suggest that the Government do not fully subscribe to that view, but they have not taken on board the potential scenario that we have tried to present. Many years hence—perhaps decades—when the Bill is passed by Parliament and is on the statute books of English law, there may be cases that we try or refuse to try, should we decide on balance that there is no case to answer. It would then be open for the court to say that we were shielding people—who knows how the courts will interpret the question of shielding. We could be accused of shielding military personnel , such as infantry involved in a particular action, or, more likely, those engaged in the delivery of weapons that are capable of inflicting massive destruction—and, in that regard, I am thinking particularly of our Royal Air Force pilots, but sailors serving on ships that fire long-range missiles are another example.

Crispin Blunt (Conservative, Reigate)

As is the Royal Artillery.

Gerald Howarth (Conservative, Aldershot)

Yes, the Royal Artillery, too, is capable of inflicting great damage.

With regard to those examples, who can say whether a future court, the composition of which we cannot foresee, might judge that the British Government had not carried out its duties under the statute. It might feel—or the international community, as it is called, might feel—that we were shielding people, and that they had not been brought properly to account, or that their cases had been inadequately considered.

I am not claiming that the court as it is envisaged now would be likely to reach such conclusions, but Ministers must answer the concerns raised by me, several of my party colleagues and many other people with regard to what might happen in certain circumstances. The general public's understanding of such crimes has moved on, and I will refer later to the bombing of Dresden, because it is important to consider potential scenarios.

I take as my first example the sinking of the Belgrano, which cost 300 lives. There was a dispute at the time, and there was also a dispute afterwards, which was notably orchestrated—or articulated might be a better word—by the hon. Member for Linlithgow (Mr. Dalyell). It was claimed that HMS Conqueror had acted improperly in torpedoing the Belgrano. The hon. Gentleman and others suggested that the Belgrano was steaming away from the Falklands, and that it was sunk because the British Government wished to torpedo potential peace talks. I cite that example because it illustrates that there could be different views about what might constitute some of the crimes that are set out in the schedule. If the Belgrano was steaming away and offering no threat, was it justified that it was sunk and 300 Argentine lives were lost?

I have had the benefit of consulting a small publication that is available at the Library. I wish to make a small plug for the Library at this point—it does a fantastic job for all of us in the House of Commons and it is a wonderful resource. It provided me with the most recent book on the Falklands war, which is a slim volume by Michael Parsons. On page 61, he states

``There is, however, little evidence that the proposals put forward by President Belaunde were acceptable to the Argentine junta. Nor is there any conclusive evidence that the British War Cabinet knew about them in any detail before the General Belgrano was attacked.''

If it were a matter of international dispute whether the British Government knew in advance that the Belgrano was steaming away and offered no threat, there is a clear possibility that, although a British court could decide that it was wholly improper to bring charges against the captain of HMS Conqueror, the ICC might, conceivably, take a different view. Where do we stand then? All our arguments about delivery, warrants and so on therefore become pertinent, as we would be obliged to deliver up the captain of HMS Conqueror if the court felt that he had committed a war crime. I accept the point that the Belgrano was clearly a military target, but I invite the Solicitor-General and the Minister of State to cast their minds forward and think about how a court in future might consider such matters? If, in future, attacking a military target when it is offering no threat and is steaming away is a crime, our military forces will be called on to exercise such restraint as to add considerably and in an unjustified fashion to the risks to which they are subject in prosecuting a war. War is an evil business, but it is sometimes a necessary evil. Nevertheless, if one is to prosecute a war, one must do so with full conviction, take risks and make split-second decisions. I offer that as a first example.

I offer also the example of the bombing of the Belgrade television station, which I mentioned on Tuesday. Paragraph 2(b)(ii) of article 8 refers to

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

Who is to say that a television station is not a military objective? There was a great feeling during the second world war that Lord Haw Haw was doing damage to this country. I cannot remember whether, during the Falklands war, the television station was attacked, but it is matter of dispute whether a television station is a military or civil objective. Under the rules of the court, it is not within our power to determine that. If the broadcasting station was a huge complex, which was deemed essential to attack, and, as a result, a considerable number of civilian lives were lost in what is euphemistically called collateral damage, paragraph 2(b)(iv) might apply. It reads:

``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''.

Who will determine whether such incidental damage will be defined as clearly excessive? The ICC will do so. The likelihood is that we will be inhibited from taking action against quasi-military targets or targets that the commanders of our forces, including the War Cabinet, regard it as essential to attack.

That poses a real problem. The Gulf war was the first war to be conducted on the television screens of people's homes in the United Kingdom and elsewhere. As the Committee will remember, few lives were lost, and most of the allied lives lost were as a result of what is euphemistically called friendly fire. However, as a result of that war, the public overwhelmingly came to the view that it is possible to prosecute a war completely clinically without any collateral damage. Perhaps the bombing of Belgrade, its bridges and so on, slightly altered public perceptions.

There is a belief in this country that modern weapons are so sophisticated that one can send a cruise missile down the streets of Baghdad and get it to turn right at a traffic light and into a ventilation shaft down to the root of a building. If one is lucky that does happen, and sometimes did during the Gulf war. The work done in my constituency at Farnborough by the Defence Evaluation and Research Agency, and elsewhere in the United Kingdom and the United States, may show technology advancing at such a rate that it will become possible to prosecute war in an even more clinical fashion.

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

Will the hon. Gentleman make clear where his remarks are leading? Earlier, he agreed that the proposed ICC would interpret the matters to which he now draws our attention—whether crimes constitute war crimes in given circumstances. However, he appears to be opposed to including whole categories of possible crimes in the Bill. Is he fundamentally opposed to essential parts of the Bill, and therefore to essential parts of the proposed ICC?

Gerald Howarth (Conservative, Aldershot)

I am sorry that the hon. Lady takes such a simplistic view. I am genuinely trying to do what I said at the outset, use probing amendments to illustrate my concerns about how the incorporation of the Bill's provisions into our law would affect the way in which our courts work. I do not have much of a problem with that, but I wanted to highlight the fact that behind the provisions are the identical provisions of the statute, which will govern the ICC. Although I am content that our courts will interpret situations in a sensible fashion, I have raised doubts about transferring so much power into the hands of the ICC, which could prosecute our battlefield commanders even though we had concluded that no international war crime had been committed by our troops.

That is the dilemma that I pose. Whether I support the whole idea is by the by. The Government must say whether they have considered such possible scenarios, how they would react to them, and whether they have the same concern as my hon. Friends and I about the potential impact on our armed forces.

Mr. Mark Hendrick (Preston) rose—

Mr. Desmond Browne (Kilmarnock and Loudoun) rose—

Gerald Howarth (Conservative, Aldershot)

I give way to the hon. Member for Preston (Mr. Hendrick) because he rose to his feet more quickly.

Mark Hendrick (Labour, Preston)

I take that as a compliment.

Would the hon. Gentleman have the same concerns if a British ship had been sailing away from an exclusion zone and 300 Royal Navy personnel had died; or if, during a conflict, the headquarters of the BBC were blown up, causing suffering to hundreds of British journalists and perhaps military personnel gathering intelligence? Would he call for the rogue state involved to be hauled before a court such as the ICC?

Gerald Howarth (Conservative, Aldershot)

The hon. Gentleman does not half tempt me. The idea of the BBC being blown up is far too attractive for some of us in opposition to resist—I take it that the hon. Gentleman is referring to the Blair broadcasting corporation. However, I do not want my levity to be misconstrued. I was paying tribute to the hon. Gentleman's fitness when I commented on the speed with which he jumped up—

Mr. Browne rose—

Gerald Howarth (Conservative, Aldershot)

That was a bit slow.

We are discussing serious matters. I would regard the events described by the hon. Member for Preston as a hostile action, but war is war and fine judgments have to be made. It is difficult for those of us and for members of the public who have not served in the armed forces to understand that people join Her Majesty's forces in the full knowledge that it is not like joining Marks & Spencer or BP—such organisations do not call upon their personnel to lay down their lives. The hon. Gentleman will have heard my hon. Friend the Member for Reigate (Mr. Blunt) say that when he was sitting on the front line, at the foot of the iron curtain, at the very pivot of the massive tension between east and west, he knew that he was in line to be wiped out in the first wave. People who join the armed forces understand the risks that they run.

Mark Hendrick (Labour, Preston)

I speak as a former Ministry of Defence worker who trained at DERA, which has been mentioned and which used to be called the Royal Signals and Radar Establishment. I had regular contact with and worked alongside many military personnel there, so I understand those comments. However, the hon. Gentleman has not answered my question. Would he call for the head of the rogue state I described to be brought before a court—the ICC or any other court—and would he do the same if some other broadcasting station, to which he might be more sympathetic, were attacked?

Gerald Howarth (Conservative, Aldershot)

It would depend on how much that action was a factor in the war as a whole. I am trying express the reservations that I hold, which have been expressed to me by members of our forces. The Minister will accept that the way in which our forces prosecute the tasks laid upon them is constrained; nevertheless, as human beings they could, if faced with a difficult situation, be guilty of some atrocity. Although I do think that we are rather splendid, I do not suggest that we are such a superior people that none of us is capable of committing such a crime—after all, we have prisons full of criminals. I have grave reservations. Rather than people being called to account at a war tribunal, it would be better for them to be dealt with by our armed forces in the course of the battle.

Des Browne (Labour, Kilmarnock and Loudoun)

I apologise to the hon. Gentleman for not being present throughout his remarks—I had to answer an important message—but I suspect that I have heard the argument before in this Committee. None the less, my question is genuine. How many of the provisions of the amendments are already part of our domestic law? The part of the Bill in which they fall relates to our domestic law.

I know what the hon. Gentleman wants to achieve, but if he gets his way with the amendments, probing or otherwise, the one thing that we can guarantee is that the only jurisdiction over the alleged offences will be that which rests with the ICC, because he will have taken them out of domestic law if they are not incorporated in it in any other way. The amendments are not the appropriate vehicle for the discussion that the hon. Gentleman wishes to have—but that may be a matter for you, Mr. Cook.

Gerald Howarth (Conservative, Aldershot)

I expect that the hon. Gentleman was taking a message from Mr. Alastair Campbell. The Prime Minister does all the time.

The hon. Gentleman makes an interesting point. I accept that the offences are being incorporated into United Kingdom law and will therefore by tried by UK law, but that is being done to give effect to the statute. That is what we have been told all along.

John Battle (Labour, Leeds West)

The hon. Gentleman needs to be clear about the subject of part V of the Bill, which is headed ``Offences under domestic law''. We are not simply accepting the statute, but addressing our own law.

Gerald Howarth (Conservative, Aldershot)

I am grateful to the Minister, but it is clear that the offences are being put into our domestic law to reflect the statute.

Des Browne (Labour, Kilmarnock and Loudoun)

Perhaps I can assist the hon. Gentleman, although I am not a Minister and he will want to hear confirmation from someone on the Front Bench. As I understand it, we are ensuring that the offences are part of our domestic law so that we can do exactly what he wants us to do: accept our responsibility to develop jurisprudence in relation to them and, if necessary, prosecute our own people in the domestic courts. We can—I shall say this slowly—ratify the statute without part V. The hon. Gentleman's argument for the amendment is self-defeating.

Gerald Howarth (Conservative, Aldershot)

I am grateful to the honourable lawyer for giving me some guidance. I accept the principle of complementarity. Nevertheless, if we are to incorporate the offences into our domestic law, it would be sensible to guard against future ambiguity by making it clear that we want the courts to err on the side of understanding our troops' concerns.

Amendment No. 34 would delete article 8.2(b)(v), set out in schedule 8, which covers:

``Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives''.

If, for example, an undefended village were harbouring terrorists, where would a commander who attacked the village stand in relation to that provision of our domestic law? No one would suggest that the terrorists were defending such villages or buildings; rather, we would say that they were using them as a shield. Would our commanders face action as a result of attacking? In the attack on the command centre in Baghdad during the Gulf war, many civilian casualties occurred, but it was thought to be an important communications centre and therefore deemed a military target. If the offence were incorporated into our domestic law, would we be satisfied that the courts would take the view that that was a legitimate target, or, indeed, that the collateral damage caused was not ``clearly excessive'', in the words of sub-sub-paragraph (iv)?

My final example is that of Dresden during the second world war. I spent some of my formative years in Hamburg in Germany. When I first went to Dresden in 1956, I saw the devastation that had been caused to the city. Area bombing—one description that is given to the wholesale bombing of cities—was the subject of an argument that raged after the second world war and continues today. A very interesting article on Sir Arthur Harris—commander of Bomber Command during the second world war and known to some as ``Bomber'' Harris—entitled ``Exploding the Myths'' was published in the February-March edition of Legion, the Royal British Legion magazine. Hamburg neighbours to whom my parents spoke were in no doubt that the German people realised the damage that was being inflicted on our cities and the damage that Hitler's Government were doing to their own people only after German city centres were bombed and substantial civilian fatalities were incurred.

The point made by the hon. Member for Kilmarnock and Loudoun (Mr. Browne) was a fair one—even if he was a little slow in getting up—but will area bombing be outlawed for ever if we incorporate the provision into our domestic law? The United States air force 1,000 bomber raid on Berlin on 3 February 1945 resulted in the deaths of 25,000 Berliners. Today, that might well be considered excessive ``incidental damage''. I am sorry to use such phrases and I do not mean to dismiss the loss of 25,000 lives, but to hamper our people so that they cannot prosecute a battle in that way would be a very serious matter. To do so could make it difficult to defend ourselves or our interests on a wider front.

It is part of the argument about the role of Bomber Command—I know that you take great interest in these matters, Mr. Cook—Albert Speer, who was in charge of German industrial production from 1942, gainsaid critics who said that Bomber Command was ineffective. According to the article to which I have referred, he said that

``the strategic bomber was the cause of all our setbacks''

and that the failure to stop the bombers was

``the greatest lost battle on the German side''.

Are we enacting domestic legislation that would inhibit any future British Government carrying out such action? It might be the collective view of the Government of the day, supported by the will of the people, that such action was the lesser evil and the only available option.

A future British Government might decide that bombing of the type that took place in Nagasaki and Hiroshima was necessary to destroy a great evil. Would the legislation inhibit such bombing? Huge damage was done to those cities, but which of the two evils is greater? Group Captain Sir Leonard Cheshire, who was on board the United States bomber that dropped that awful bomb on Hiroshima, went on to do fantastic charitable works and was a great and respected figure in the world of charity in this country. The bombing of Hiroshima was clearly a source of great anguish to him. None the less, it was felt that it was the only way to bring that war to an end and prevent a greater evil.

Mark Hendrick (Labour, Preston)

In the light of the outcome of the example that he gave and assuming an Allied victory, does the hon. Gentleman agree that Adolf Hitler—had he not shot himself in his bunker in Berlin—would have been more likely than Winston Churchill to have been brought before an ICC?

Gerald Howarth (Conservative, Aldershot)

The hon. Gentleman makes a fair point. If we were to stick rigidly to it, I envisage that there would be arguments on both sides. The atrocities that Hitler committed were definitely atrocities, and what was done in the name of our forebears in the second world war was done to destroy Adolf Hitler's tyrannical regime, but some would argue that the bombing of Hiroshima or Nagasaki was unnecessary and that those responsible should be called to account. It was said earlier that through the ICC we are trying to avoid tribunals of the victorious or victor's justice. That is my reservation.

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

Does the hon. Gentleman accept that there are already international laws against the indiscriminate bombing of civilians? Does he also accept that the current Government and previous Conservative Governments signed up to international agreements and treaties such as the nuclear non-proliferation treaty, the review conference on the nuclear non-proliferation treaty and various other international agreements that limit our actions? His remarks about nuclear weapons leave me uncertain about whether he advocates a first-strike policy in all circumstances, which, in many senses, would be an international crime. He is arguing against the imposition of any constraints or international restrictions on the Government?

Gerald Howarth (Conservative, Aldershot)

The hon. Gentleman and his hon. Friend the Member for Kilmarnock and Loudoun are missing the point. I have not suggested that; I have posited a scenario. The hon. Gentleman asks whether I accept that the use of first-strike nuclear weapons would be a crime against humanity. If Hiroshima and Nagasaki were not first strike, what were they? I would not rule out first-strike nuclear weapons: they were the basis of our nuclear deterrent which ended the cold war, destroyed the iron curtain and liberated the peoples of eastern Europe from lengthy subjection to communism. Many Government Members would disagree with our actions in government during those glorious 18 years, but, through the work of my right hon. and noble Friend Baroness Thatcher, for whom I had the privilege of working, we brought about wonderful changes and ended the cold war.

John Battle (Labour, Leeds West)

Tell us about the poll tax.

Gerald Howarth (Conservative, Aldershot)

We never contemplated the use of nuclear weapons as a first strike against the poll tax protestors, but the right hon. and noble Baroness Thatcher might have it in mind as a possibility, if all else failed.

I shall conclude my argument with the remarks of the noble Lord Shore—a distinguished member of the Labour party who happens to be sound on certain issues. I quoted him on Tuesday, and shall do so again now. He said:

``If I was to take seriously all those new listed war crimes in article 8.2(b) onwards—all of them, not just some of them—I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 359.]

The Minister should answer that point. I would be grateful if he did so.

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

Two important points occur to me as counters to the arguments deployed the hon. Member for Aldershot (Mr. Howarth).

First, the hon. Gentleman introduced several hypotheses involving military circumstances in which this country might need to act as a result of decisions taken by politicians in war, describing that as ``necessary''. He advanced that proposition as though there were no background to constrain the decisions of democracy. The reality is that we have long subscribed to the international laws and customs of war and we recognise their existence in tribunals other than the ICC. The schedule from which the hon. Gentleman wants to delete certain provisions that codify existing laws is nothing new: it restates international law as it is widely understood and has been accepted by post-war Governments. By deleting such provisions, he would revoke the existing international law of war.

Secondly, it is strange that the hon. Gentleman takes exception to such matters being considered by the ICC, which is constituted by many member nations. It was agreed by the party of which the hon. Gentleman is a member that, in respect of violations of the laws of war, especially under the Geneva convention of 1949 ratified by a Conservative Government in 1958, protocol 1 of which was ratified in 1998, our troops should be subjected not to an international court, but to the court of any state party to the Geneva convention. If it is acceptable to allow any state party to the Geneva convention to have jurisdiction over our troops when they violate the laws of war, it is a lesser step to allow an international court, given all the international checks that exist over it, to adjudicate in similar cases.

The hon. Gentleman is inflating the risk. I am not saying that his proposal is completely negligible, but he has got things out of proportion. The trail has already been blazed. Given the risk of a miscarriage of justice being perpetrated against British troops, many steps have been taken that are more significant than those that we are contemplating under the Bill,

Ross Cranston (Labour, Dudley North)

I refer first to the simple but critical point spotted by my hon. Friend the Member for Kilmarnock and Loudoun. We want to ensure that United Kingdom courts can always investigate allegations against a British national so that the ICC cannot have jurisdiction. If we accept the amendment and delete certain offences, the result would be that domestic courts could not prosecute cases; thus, the cases would fall within the ambit of article 17 of the treaty in that we would be ``unwilling or unable'' to deal with them, with the result that the ICC would have jurisdiction.

The hon. Member for Aldershot referred to the situation in Sierra Leone. We believe that the crimes set out in the schedule are justified in terms not only of a dry, legal analysis but of the horrors that are still occurring throughout the world. It is a moral argument. As the hon. Gentleman acknowledged, we are discussing serious and barbaric crimes. I regard the amendments as probing, not substantive, and the best way in which to deal with them is to assure the Committee first about the offences. Before doing that, I direct its attention to article 22.2 of the treaty, which states clearly:

``In case of ambiguity, the definition shall be interpreted in favour of the person being investigated''.

In addition, article 22 of the Rome statute states that the provisions are to be interpreted strictly—a principle of strict instruction. That goes straight to the point of creativity about which the hon. Gentleman was concerned.

The ``Elements of Crime'' prepared by the preparatory commission set out clearly the elements necessary if someone were to be convicted. I say as an aside that the United States was content with the outcome of the preparatory commission and agreed the elements. I suspect that it saw them as one way of confining creativity by the court. Let us consider the crime under paragraph 2(b)(ii) of schedule 8, which corresponds with article 51 of the first Geneva protocol. To prove the crime, the prosecutor must first demonstrate that the perpetrator was

``intentionally directing attacks against civilian objects''

or attacking individual civilians who were not taking direct part in the hostilities. The first element is the intention, while the second is the civilian population or the individual civilian's aspect. The third element is that the perpetrator intended those civilians to be the object of an attack. The elements of the crime are set out clearly and the preparatory commission has done further work to try to denfine them.

Gerald Howarth (Conservative, Aldershot)

Is the Solicitor-General saying that the type of area bombing that was carried out during the second world war on Dresden, Hamburg and other German cities could never happen again, although not necessarily as a result of the Bill? I am interested to know the answer.

Ross Cranston (Labour, Dudley North)

Let me deal with the three examples given by the hon. Gentleman. The sinking of the Belgrano would not fall within the provisions that he seeks to delete from the Bill, because it was a military object.

The attack on the television station in Belgrade would not fall within paragraph 2(b)(iv) of schedule 8. The expression

``clearly excessive in relation to the...military advantage''

would not catch that attack because the television station was pumping out propaganda for the Serbian regime. As I said to the Committee the other day, the prosecutor for the international criminal tribunal for the former Yugoslavia has decided not to take the process forward in relation to that attack.

In relation to the second world war Bomber Command, it was partly as a result of the range of events that took place in the second world war that we have the Geneva protocols. The approach taken by all major countries was that war must be more civilised, and the hon. Gentleman's party, when in power in 1957 and 1995, incorporated those protocols into domestic law. I commend it for that and the Labour party at the time supported it. Civilised countries took the view that the provisions were necessary so that, should war occur—it is unfortunately inevitable in our world—it would be conducted in a civilised way.

Des Browne (Labour, Kilmarnock and Loudoun)

Before my hon. and learned Friend moves on from the importance of the provisions in terms of international law, would he comment on an aspect of the argument that I have not yet heard articulated in the Committee? The provisions are in international law, and whether they are incorporated into our domestic law or are in the jurisdiction of the ICC does not matter. The provisions serve not only to generate parameters for the behaviour of our armed forces, but to provide a level of protection for our armed forces and our civilian population. If Parliament undermines the provisions and effectively decriminalises the acts, we reduce the level of protection for our armed forces in combat and that our civilian population has in a time of conflict.

Ross Cranston (Labour, Dudley North)

I agree fully. The provisions incorporating the Geneva protocols have that civilising effect, and we have signed up to them. We are signed up to them for a number of years. I will develop that point, which was raised by my hon. Friend the Member for Ilford, South (Mr. Gapes) and by the right hon. Member for Caithness, Sutherland and Easter Ross. In the provisions that the amendment would delete, article 8.2(b)(i) set out in schedule 8 is taken from article 51 of the first additional protocol to the conventions. It relates to a grave breach under article 5.3 of the protocol. That was incorporated into our law in 1995, under the Geneva Conventions (Amendment) Act 1995, so it is already an offence under domestic law. The effect of the amendment would be to reverse our domestic legal provisions.

Paragraph 2(b)(iv) of schedule 8 is based on article 51.5(b) of the first additional protocol, and relates to a grave breach of the Geneva convention under article 85.3. The provision is a milder form of the provisions in the Geneva protocol. The language in the Bill states:

``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians...would be clearly excessive''.

That ``clearly'' does not appear in the Geneva protocols. We have an element of an offence that is imposing a far higher threshold on criminal culpability, because of the words ``clearly excessive'' in relation to the

``concrete and direct overall military advantage anticipated''.

The amendments, which I accept are probing, would remove offences that are already in our domestic law as a result of legislation introduced by the previous Government.

It was suggested that the matter would have a chilling effect on the operations of the armed forces. My hon. Friend the Member for Kilmarnock and Loudoun quoted from the former head of the British Army Legal Service the other day, and my hon. Friend the Minister of State quoted the words of Colin Powell. My hon. Friend the Member for Preston reminded us that we are addressing the effect on not simply the armed services, but workers at the Ministry of Defence, Ministers who may be involved in approving attacks and Law Officers. Therefore, I have personally considered the effect of the provisions being incorporated into domestic law, and I assure the Committee that the creation of the ICC will not inhibit the proper conduct of duties by the armed forces or Ministers. The provisions have nothing to do, in terms of the defined elements, with unfortunate and avoidable mistakes that may occur in wartime or with the second-guessing of decisions taken in good faith by the armed forces. They are about punishing people who carry out attacks in the full knowledge—that relates to article 8.2(b)(iv)—that the civilian damage will be disproportionate. Such people are those who systematically shelled and blew up virtually every building in Vukovar, during the war in Croatia. The action was not for legitimate military reasons, but to allow people to vent their ethnic hatred.

As I said at the outset, the amendments would reduce the protection for the armed forces, and I ask that they be withdrawn.

Gerald Howarth (Conservative, Aldershot)

I am grateful to the Solicitor-General for responding to my points. He was right to observe that the amendments are probing, rather than substantive, and I hope that his comments will reassure our armed forces. He said that he did not believe that the provisions of the schedule would inhibit our forces in a legitimate prosecution of their activities. I am sure that I have not got the words exactly right, but he certainly used the word ``inhibit'', which is the one that springs to mind. I hope that he is right. I am disappointed that the Government are not prepared to enter a reservation or interpretative declaration, to use the French expression, as the French have, because it would have been helpful to have done so. I accept the point that he and the hon. Member for Kilmarnock and Loudoun made—that we are discussing matters that are essentially for United Kingdom courts to judge. I hope that, if the Bill is passed and we are ever in the unfortunate position of engaging in a sufficiently large conflict in which such issues might arise, our courts will interpret the provision in the way that the Solicitor-General suggests and that it will not inhibit our armed forces. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Clause 51 - Genocide, crimes against humanity and war crimes

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 53, in page 27, line 11, leave out from first `Kingdom' to end of line 12.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take the following amendments: No. 42, in page 27, line 11, leave out `a United Kingdom resident'.

No. 43, in page 27, line 12, at end insert

`, or

( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in England and Wales.'.

No. 54, in clause 52, page 27, line 29, leave out from first `Kingdom' to end of line 30.

No. 46, in page 27, line 29, leave out `a United Kingdom resident'.

No. 47, in page 27, line 30, at end insert

( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in England and Wales.'.

No. 55, in clause 54, page 28, line 36, leave out from first `Kingdom' to end of line 37.

No. 56, in clause 58, page 30, line 28, leave out from first `Kingdom' to end of line 29.

No. 48, in page 30, line 28, leave out from `or' to end of line 29 and insert—

`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in Northern Ireland.'.

No. 57, in clause 59, page 31, line 4, leave out from first `Kingdom' to end of line 5.

No. 51, in page 31, line 4, leave out from `or' to end of line 5 and insert—

`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in the United Kingdom.'.

No. 58, in clause 61, page 32, line 5, leave out from first `Kingdom' to end of line 6.

Crispin Blunt (Conservative, Reigate)

We come on to an important debate about the scope of the jurisdiction of the law of England and Wales, as it will be implemented—in effect, a discussion about universal jurisdiction. In the course of the debate, we shall see the colour of the Government's ethical money.

The right hon. Member for Caithness, Sutherland and Easter Ross and I have tabled two different series of amendments that would widen the Bill's scope in respect of people who would fall within its jurisdiction. My amendments are wider than those of the right hon. Gentleman, who will, I am sure, speak to his own amendments. I apologise to him if he finds that some of his foxes have been shot on a field before he is able to rise to speak.

We must consider the development of the Bill in respect of universal jurisdiction in its various stages. Interestingly, the consultation draft of the Bill would have introduced universal jurisdiction for the crime of genocide. Under clause 46 of that draft Bill, jurisdiction is claimed for the United Kingdom in respect of the crime of genocide, crimes against humanity or war crimes, across the piece. In the Bill that we are discussing, as it applies to genocide, clause 51, and amendment No. 53—

Des Browne (Labour, Kilmarnock and Loudoun)

I notice that the hon. Gentleman speeded up his argument when he drew our attention to the relevant clause in the draft Bill. Perhaps he would revisit that, take me through it slowly and explain how that clause generated universal jurisdiction for the crime of genocide. I do not understand, but I am open to being educated.

Crispin Blunt (Conservative, Reigate)

Clause 45(4) of the draft International Criminal Court Bill states that

``This section applies —

(a) to acts done in England, Wales or Northern Ireland, and

(b) to acts done outside the United Kingdom by United Kingdom nationals or persons subject to UK service jurisdiction.''

However, clause 46(1) states that

``This section applies to any offence under section 45 (genocide, crime against humanity or war crime).''

As far as I understand it, there is no limitation in that.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman has speeded up again.

Crispin Blunt (Conservative, Reigate)

The matter is not central to the arguments that I want to make. The hon. Gentleman will have heard the discussion that has taken place, and he will have noticed the change in the way that the matter has been presented.

If I have misunderstood clause 46 of the draft Bill by interpreting it as giving universal jurisdiction with regard to genocide, it is perhaps understandable, as I think that we already have that universal jurisdiction. The Solicitor-General is shaking his head. However, I think that we do already have it with regard to torture. I am grateful that he is nodding to affirm that.

My inexpert reading of the draft Bill led me to believe that the intention of clause 46 was to give us universal jurisdiction with regard to genocide. Although that might be a mistaken view, I wish to draw the Committee's attention to the difference between the draft Bill's definition of those who fall within the remit of those crimes and that which is contained in the Bill. I have read out the definition of that in clause 45 of the draft Bill. However, the Bill's definition is more inclusive. Clause 51(2) refers to acts committed

``outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.''

The Government have introduced the issue of residency into the Bill, which widens its scope. Why are we going to end up leaving the Bill like that? If the legislation is good enough for citizens of the United Kingdom, and if its purpose is to ensure that people who are guilty of those crimes are unable to escape justice, the United Kingdom's legislation should claim universal jurisdiction, as other countries' legislation claims. That is the purpose of my amendments.

The issues of residency and presence relate also to the amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross.

Des Browne (Labour, Kilmarnock and Loudoun)

This is an important debate. The hon. Gentleman is going to argue that the English courts—rather than the United Kingdom courts—should have universal jurisdiction over all those crimes. He must explain why he would want to do that, when it would manifestly undermine the international court that is being established.

The other part of the Bill is more important. It creates universal jurisdiction—at least with regard to the state parties—in an international court that brings people to international justice, rather than to the domestic justice of a single country that decides to bring a prosecution on behalf of the whole world.

Crispin Blunt (Conservative, Reigate)

It is interesting to hear the arguments of the hon. Gentleman—who is, I understand, a Scottish lawyer—in favour of limiting the jurisdiction of the whole process of the law that we are applying to such serious crimes. He is advocating a position in which people guilty of those crimes will find it easier to escape justice.

Des Browne (Labour, Kilmarnock and Loudoun)

That is not true.

Crispin Blunt (Conservative, Reigate)

But it is true, and I will explain why.

John Battle (Labour, Leeds West)

It is not true at all, because we are not saying that Britain will use the court to try everybody accused of those crimes. However, if a person were accused of those crimes, and their own country was unwilling or unable to try them, we would return them to the ICC and they would be tried there, appropriately, rather than the UK doing the job for the whole world. Surely that is the purpose of building an ICC as an international institution.

Crispin Blunt (Conservative, Reigate)

There are two problems with the Minister's arguments. The first is technical and relates to the detail of the extradition treaties to which we are referring. As I understand it, and on the basis of the advice being tendered by Michael Birnbaum and Peter Carter to Amnesty International and other organisations, there is a lacuna in the law on extradition treaties. That is not the case with non-treaty bases of extradition, but extradition treaties that we have with different countries—including our most important ally, the United States—are not fireproof. We would have to change all those treaties, by agreement with states that might not necessarily be party to the statute, for the Minister's position to be sustained. That is a technical flaw in the Minister's argument.

Secondly, the Minister's position is strange. Despite having stated throughout our discussions what the intention is, he now adduces arguments saying that it is not suitable for the UK to put the criminals whom we are discussing on trial in this country if the ICC is unwilling or unable to do so.

In putting the legislation in place, we will have to be prepared for the ICC to go any one of three ways. First, it could work in the way in which we wish it to. In those circumstances, we would not want to exercise our jurisdiction, if we claimed it by changing the legislation to include my amendments. Everything would pass properly to the ICC, which would work in exactly the same way as the British courts.

We have discussed at length the possibility of the ICC becoming the tool of people who seek to advance the barriers and definitions of laws in ways in which we would find very uncomfortable, given the UK's previous and current role in global security.

There is also a third option: the ICC might become completely useless. Its institutions might not work properly and the prosecutor chosen might be unwilling or unable to bring people to justice. With the greatest respect to everyone involved in the legal profession, the wheels of international jurisprudence wind terribly, terribly slowly. The ICC might be no different to any other international court and take for ever to get into action, while defendants find out how to use its rules and escape justice. Are Labour Members really saying that, in those circumstances, we in the UK—our courts, our justice system, our country that is signing up—are somehow incapable of exercising fair jurisdiction over people who have committed such crimes?

Des Browne (Labour, Kilmarnock and Loudoun)

There is a fourth option, which is that other countries might follow the example that the hon. Gentleman is presently giving. Other countries that do not have our standards or history of fairness could adopt universal jurisdiction. What protection would there be for our armed forces, who might find themselves subject to the universal jurisdiction of just the sort of country that the hon. Gentleman and his colleagues have, for weeks now, been describing as a great threat to our forces' ordinary activities?

Crispin Blunt (Conservative, Reigate)

I have news for the hon. Gentleman. That has already happened. Countries are already claiming universal jurisdiction. As I understand it—the Minister will correct me if I am wrong—29 states have so far ratified the statute. Only four do not, in one respect or another, claim universal jurisdiction over crimes covered by the statute.

I am going to have a bit of fun with this. One of the four countries not to have claimed universal jurisdiction is San Marino. The other three are Gabon, the Marshall Islands and Senegal. Which camp does the hon. Gentleman expect the United Kingdom to sit in? With Senegal, San Marino, the Marshall Islands and Gabon or with Belgium, Canada, New Zealand, Switzerland, Germany, Argentina, Austria, Belize, Botswana, Dominica, Fiji, Finland, France, Ghana, Iceland, Italy, Lesotho, Luxembourg, Mali, Norway, Sierra Leone, South Africa, Spain, Tajikistan, Trinidad and Tobago and Venezuela? Which side of the argument does the hon. Gentleman want the UK to be on? He has put forward the extraordinary case that he expects us to be on the side of people who will let those criminals escape justice.

I shall examine the detail of why, at this stage, the Bill is flawed on the issue of residence. In a submission published by Amnesty International, Michael Birnbaum QC gives a clear example of the difficulties with the Bill's definition of residence. The amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross would deal with the issue of residence by amending the wording of the Bill to

``present in England and Wales''.

Under the right hon. Gentleman's amendments, if one of those criminals were to enter the UK he would fall within our jurisdiction by his presence. That could not happen if we do not amend the Bill.

John Battle (Labour, Leeds West)

What happens when one of those people arrives? I hope that the hon. Gentleman is not under the illusion that such a person would escape justice, because that is not so. The issue is whether that person would be tried in a British court or handed over to the ICC as a non-British national. Either way, he would face trial.

Crispin Blunt (Conservative, Reigate)

The Minister cannot guarantee that. It is a matter for the Attorney-General to decide whether prosecution should take place in the UK.

John Battle (Labour, Leeds West)

And the ICC.

Crispin Blunt (Conservative, Reigate)

The Minister cannot guarantee any more than I can that the prosecutor or the pre-trial chamber in the ICC would bring those people to justice.

Des Browne (Labour, Kilmarnock and Loudoun)

Will the hon. Gentleman give way?

Crispin Blunt (Conservative, Reigate)

No, not for the moment.

What if UK citizens are the victims of crimes that fall within articles 5, 6, 7 and 8 of the statute? Their global contribution through Voluntary Service Overseas and other non-governmental organisations is second to none. If we want justice for British victims, but the ICC is not prepared to provide it, why should we limit our jurisdiction? That is the question that the Minister must answer because, as it stands, the Bill limits our jurisdiction and is flawed on the issue of residence.

Before the Minister intervened, I was dealing with the amendment tabled by the right hon. Member for Caithness, Sutherland and Easter Ross.

John Battle (Labour, Leeds West)

Will the hon. Gentleman give way?

Crispin Blunt (Conservative, Reigate)

If the Minister will forgive me, let me complete my argument on residence and then I shall let him intervene.

If the wording were amended from ``resident'' to

``present in England and Wales'',

that would deal with the legal nightmare of defining whether someone is a UK resident. There is a heap of different definitions of residency under the law in this country. We would give lawyers a field day by leaving the term ``United Kingdom resident'' in the Bill.

John Battle (Labour, Leeds West)

That is a serious issue, and I am grateful to the hon. Gentleman for raising it. However, I want to know where he is coming from. His hon. Friend the Member for Chesham and Amersham, who normally speaks for the Opposition on such matters, is absent this afternoon. I assume that the Conservative party is at one on the Bill, but varying degrees of reservation have been expressed about the principle of the ICC. If the Bill did not proceed through the House of Commons, would the Conservative party put a commitment in its manifesto unilaterally to create a court to try people for crimes against humanity? Would the Conservative party establish universal jurisdiction without the support of anyone else in the world? Is that the Conservative party's position?

Crispin Blunt (Conservative, Reigate)

Happily, I am not responsible for the manifesto, so I am not in a position to answer the Minister's questions. However, it is interesting how defensive he has become. He suddenly seems to understand the limitations of the Bill, which he has justified in the broadest possible ideological and idealistic terms—and I have every sympathy with those arguments. During the Committee's proceedings, we have highlighted practical problems with the statute as it stands and we have tried, and so far failed, to include in the Bill some protection for the United Kingdom if the ICC goes sour, which none of us hope it does. However, when push comes to shove and the Government are presented with the opportunity to ensure that the United Kingdom can have jurisdiction to try people who are guilty of such crimes—wherever they were committed and whoever committed them—the Minister declines to take it.

I do not want the Bill to be passed in its current form: I want the amendments that I have tabled to be accepted. That would enable Parliament to have a say over changes to the Bill, and to make a clear declaration on how the United Kingdom expects it to work.

I also want the Bill to have universal jurisdiction. If it is good enough for citizens of the United Kingdom and for the laws to which we will subject our own armed forces, frankly it is good enough for everyone else as well. That argument has been accepted by the Governments of New Zealand, Canada, Belgium, Switzerland and Germany—and, indeed, by that of the United Kingdom in respect of torture.

David Lammy (Labour, Tottenham)

I want to find out exactly where the hon. Gentleman is coming from. Simplistically speaking, there are three positions on universal jurisdiction, which he has confused. The honourable position on universal jurisdiction appeals to the common good regarding crimes against humanity. It says, in effect, that someone in England should be tried by us, regardless of whether they are a national. I suspect that the hon. Gentleman has no sympathy with that. The second position, which comes from the right, is a superior position that is consistent with much of what we have heard from Conservative Members.

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Cook. The hon. Gentleman's opening remarks suggested that he does not believe what I have been saying, and I ask him to withdraw them.

Frank Cook (Labour, Stockton North)

I am somewhat puzzled by that point of order. Will Mr. Lammy clarify what he said that may have caused offence? I have been listening intently, but I shall listen even more intently this time.

David Lammy (Labour, Tottenham)

I suggested confusion, not some ulterior motive.

The second, superior, position originates from the imperial viewpoint that this country is best. The right position is an internationalist one based on the concept that such people should be tried in the international arena for all the world to see. I believe that the hon. Gentleman misses that point.

Crispin Blunt (Conservative, Reigate)

I hope that my point of order was mistaken, but I thought that the hon. Gentleman's first point implied that I do not believe the arguments that I am adducing in support of universal jurisdiction. I am sure that on reflection he would not wish to suggest that I would do anything other than believe that the amendments should be passed and that there should be universal jurisdiction in respect of these crimes.

Des Browne (Labour, Kilmarnock and Loudoun)

I do not want an argumentative debate with the hon. Gentleman, but I want to understand exactly what he is arguing for. He seems to be arguing for universal jurisdiction in respect of these offences, no matter where the alleged perpetrator is. There would be no qualification by residence or presence in the United Kingdom. Regardless of where the person concerned lived in the world, we would have jurisdiction. Is that the hon. Gentleman's position?

Crispin Blunt (Conservative, Reigate)

That is my position, and it is the effect of my amendment. If the hon. Gentleman thinks that that is something new, he should consult section 134 of the Criminal Justice Act 1988, on torture, which states:

``A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.''

The hon. Gentleman must therefore understand that the principle of universal jurisdiction has already been conceded. If we do not accept it, we will be in the absurd position of being able to claim jurisdiction over someone guilty of torture, but not jurisdiction over someone guilty of murder.

If General Pinochet had fallen into our hands in a manner that was outside the Bill's definition but within the remit of British justice, we could have tried him for torture of his alleged victims. However, if he had murdered rather than tortured them—if he had put them to sleep as one puts to sleep a dog at the end of its life—we would have been unable to try him. That is manifestly absurd. Torture is but a tiny part of the crimes of which people are guilty under articles 5 to 8. Do we not want consistency in our legislation?

Mark Hendrick (Labour, Preston)

I entirely agree with the hon. Gentleman's analysis, but not necessarily with his conclusions. If he and his party have such concern for universal jurisdiction, why in 18 years of Conservative Government did they not bring to justice any of those who committed torture in, say, China?

Crispin Blunt (Conservative, Reigate)

I am puzzled by the hon. Gentleman's intervention. It was his Government who entertained President Jiang Zemin so royally, and who suppressed demonstrators on the streets of London, Cambridge and elsewhere. We should take no lessons from the hon. Gentleman and his party, but let us get off that disagreeable note.

Under universal jurisdiction, we will be able to claim the right to protect British citizens who are victims of such crimes, wherever they are in the world. We do not want to limit such jurisdiction to presence in the United Kingdom. That said, I shall support the amendments of the right hon. Member for Caithness, Sutherland and Easter Ross if mine are not accepted.

We do not want to suffer the difficulties that Michael Birnbaum and Peter Carter have described. Let us consider the example of about 2,000 mercenaries who participate in a genocidal attack in the Congo. Their commanders are a Canadian, a Senegalese and a South African. Three of the mercenaries are British citizens, and one is an Australian who has a house in London, in which he lives for two months of the year. After the massacre, the Canadian buys a house in Manchester, in which he lives for seven weeks prior to his arrest. Under the clause as drafted, only the three British soldiers could be prosecuted. If the amendment were accepted, the Canadian and the Australian could also be prosecuted, assuming that residence could be established.

John Battle (Labour, Leeds West)

Will the hon. Gentleman give way?

Crispin Blunt (Conservative, Reigate)

In a moment.

Whatever the merits of the example, the issue is that anyone else who participated in the massacre could visit the United Kingdom with impunity, provided that he was careful not stay long enough to qualify as a resident.

John Battle (Labour, Leeds West)

The hon. Gentleman has given the impression that such a person would not be prosecuted, but the reality is that, under the Bill and the statute, he would be referred back to the ICC. Do not forget that even for British citizens who are challenged under such laws, there is a dialogue with the ICC. A person would go before the ICC and be tried there; they would not get off scot-free, which is the impression that the hon. Gentleman leaves lingering.

Crispin Blunt (Conservative, Reigate)

The Minister again makes the assumption that he has made throughout the Committee's proceedings: that the ICC will work precisely as he expects it to. That is not an assumption on which he can rely. If we want to bring British perpetrators of these crimes to justice, why should we limit our jurisdiction and ability to do so? By passing the Bill in an unamended form, that is what he invites us to do. He will have received representations from Amnesty International, the Medical Foundation for the Care of Victims of Torture and others, and will know that they are dissatisfied that we are not to sign up to universal jurisdiction. The purpose of universal jurisdiction for the United Kingdom is the purpose of the court itself. It is to ensure that people who are guilty of these crimes have even fewer places to hide and cannot hide, in any way, from British justice, which is—as the Minister knows—complementary to the ICC. If the ICC cannot bring an individual to justice, for whatever reason, we should be able to do so.

I am not advancing a unique position, but one that has been taken by the Government of New Zealand, and other Governments to whom I referred earlier. As has been acknowledged, we must consider that what we do in Parliament will be watched extremely carefully by other countries. If we include universal jurisdiction in the legislation, that will introduce the statute and bring about its ratification, our example will be followed by dozens of other countries and that will ensure that those guilty of crimes are much less likely to escape justice. That is what we want to achieve, so the amendments should be accepted.

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

I listened with great interest to the hon. Gentleman and I look forward to hearing the arguments deployed by the Minister in his reply. Although the jurisdiction of the ICC and our own jurisdiction were extensively debated in another place, the underlying rationale for extending the jurisdiction, in the way that my amendments try to do, may not have been adequately considered. It was widely welcomed in another place, and outside, that the Government abandoned their original proposals for jurisdiction in the British courts. It will be remembered that when the Bill was originally published, it was limited to ICC core crimes and to where they had been committed in England and Wales, and outside of the United Kingdom by a United Kingdom national, or by someone subject to United Kingdom service jurisdiction. That aroused hostility, of which the Government will be aware. Non-governmental organisations—some of which have been referred to by the hon. Member for Reigate—and the Bar Council, the Law Society and many other bodies expressed genuine concern that the original Bill limited the application of domestic offences in such a way.

The Government amendments have gone some way to address and meet some of the problems that have been highlighted. It is true that Government amendments have gone some way to address and meet some of the problems that have been highlighted. The amended Bill would allow our courts to prosecute non-nationals in respect of ICC crimes when the individual concerned subsequently becomes resident in the United Kingdom and is resident at the time the proceedings are brought, and when the acts involved would have constituted an offence if they had been committed in the part of the United Kingdom in which the individual is resident. However, the amendments that have been incorporated into the Bill do not go far enough. I want to spend a little time on the problems of the test of residency before I address the rationale for the amendments, which I think that the Minister has been trying to raise in interventions.

In another place, Baroness Scotland of Asthal said that the Government intended to adopt a residence-based test to match the definition used in the War Crimes Act 1991 and to afford flexibility to the test. It must be remembered that the 1991 Act was adopted in a very different situation from that in relation to the Bill. Incidentally, the residency test was also imported into the Sex Offenders Act 1997—the ``sex tourism'' legislation—which is somewhat similarly constructed. In the case of the 1991 Act, it is true that the basis for jurisdiction is residence. However, that is beside the point, for two reasons. First, the Act was, of necessity, retrospective, whereas the Bill, when enacted, will apply only to offences after it comes into force. Secondly, the purpose of the Act was to prosecute Nazi war criminals, who, even if they had not obtained United Kingdom citizenship, had made a permanent home here.

The Bill is intended to create a new international order for the prosecution of international crimes. The cornerstone of that scheme is the principle that was referred to—complementarity—and the presumption, I believe, that the state retains primary responsibility for the prosecution of ICC crimes. The preamble of the statute recalls that

``it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes''.

With respect, that is the answer to those who have been questioning the rationale for the amendment—it is to give effect to that purpose of the statute.

We must not drag our feet in accepting our responsibility to prosecute those responsible for the most heinous international crimes. That is not a partisan point. There is no question of moral superiority being asserted by me or my party, or by the hon. Member for Reigate. Those points have been made in another place by members of the Labour party, notably Lord Archer of Sandwell, who said:

``This is an opportunity to offer a lead to other countries in an exciting new, international venture...We should not sidle towards the matter at the edge of the crowd; we ought to be looking to give a lead here.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 74.]

Nor would we be alone if the Government were to accept the amendments that I have tabled and incorporate them into the Bill. Several other countries with similar legal systems and similar histories have accepted universal jurisdiction on a wider basis than residence. New Zealand, Belgium and Canada have already so legislated, and Germany and South Africa have expressed an intention to follow their example. The Belgian statute, which is currently subject to a challenge before the International Court of Justice and the New Zealand International Crimes and ICC Act 2000, both adopt universal jurisdiction without qualification. We would not be out of line therefore in following the route that I am recommending.

David Lammy (Labour, Tottenham)

Does the right hon. Gentleman accept that internationalism can be based on the nation state partaking internationally as well as on the global state acting internationally?

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

I take the hon. Gentleman's point. I certainly aspire to the sort of internationalism to which he is attaching his argument. It is undoubtedly desirable that international institutions should co-operate effectively. However, under the preamble to the statute, the parties to the treaty already recognised that their primary concern was the effective implementation of the rules of law and war. In making the nation states primarily responsible for such implementation, they were acknowledging how far we are from the sort of international order to which the hon. Gentleman and I aspire. It was a practical consideration in the minds of the drafters of the treaty rather than an ideological one based on old habits of colonial thinking.

Des Browne (Labour, Kilmarnock and Loudoun)

The right hon. Gentleman must accept that the preamble to the statute is capable of another interpretation, which is that the duty of each state is to exercise its existing criminal jurisdiction over those responsible for international crime. The preamble can be used to encourage countries to take universal jurisdiction. Equally, it could be understood to mean that there is a recognition that states should exercise the jurisdiction that they have over international crimes. I am genuinely interested to know from the right hon. Gentleman whether, during the discussions on the Rome statute, the issue about the state parties requiring each other to take universal jurisdiction was discussed? It does not figure in the articles of the statute, but that matter may have been debated.

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

I believe that such a matters was discussed. It is certainly not a requirement of the statute because it was difficult to obtain from the signatories universal acceptance of that principle. It is right to say that the preamble is not conclusive of the issue, but it leans heavily in the direction of recognising that, if that system of law is to work, full participation of the member states is an important part in achieving its efficacy. Different countries have interpreted that responsibility in different ways. I am not saying that there is a mandatory requirement to do so, but that is the thrust of the statute.

Mark Hendrick (Labour, Preston)

Is the right hon. Gentleman suggesting that not only the United Kingdom, but all other signatories to the ratification should take on universal jurisdiction? That would negate the need for the ICC because every state would try the person itself. If that were the case and such people were tried within the state concerned, is he not worried that there would be huge inconsistencies among all the signatory states in the level of justice and the punishment that criminals would receive?

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

I must answer that in the negative. It should not be part of our purpose to determine how other countries conform with the statute. In debating these matters, I focus on what I regard as our obligations—the best way for us to seek to extend the rule of law.

The hon. Member for Preston will no doubt wish to develop his own arguments in the course of the debate, but he made an important point. On the diversity of interpretation or performance, if he was arguing that if every country pursued these crimes in their own courts there would be no need for the ICC, I do not agree. The ICC will deal with the circumstances in which countries are unable, for one reason or another, to carry out the law, perhaps because the Government are not in control—as in Bosnia. It is highly desirable that we should seek to use the possibilities of the Bill to reinforce the effectiveness of what has been agreed in the statute.

I will return to the issue of the rationale before I conclude, but I shall now deal with those points that were raised as difficulties to accepting that presence should be the test rather than residence. My party and I have based our alternative draft on the Canadian example, that provides for jurisdiction in which a non-national suspected of crimes committed abroad is present in Canada. Many other countries' implementation Bills will probably follow the Canadian example, including South Africa and the Federal Republic of Germany.

In the other place, Baroness Scotland of Asthal noted that it was the Government's intention to provide that any individual who chooses to make the United Kingdom his home will, from now on, be liable in the United Kingdom for any actions committed overseas before he arrived that were crimes under the Bill. That is a welcome advance. The problem of the residency test is that it creates many legal difficulties. Lord Onslow was supported by many Members of the other place when he pointed out how complicated that would be. The term ``residence'' is complex. ``Halsbury's Laws of England'' states:

``The term `residence' bears varying meanings according to its context, and great caution must be exercised before authorities on the meaning of residence in context such as bankruptcy, taxation, or the old poor law provisions are applied in other contexts. In particular, it is clear that some degree of permanence is required for the acquisition of residence in some contexts, but not, or to a lesser extent, in others. Generally, residence means physical presence other than as casually or as a traveller. In considering whether residence is established the court considers a man's whole environment, especially in relation to his wife and his family, and not merely his physical situation''.

Indeed, Baroness Scotland said:

``One cannot say with any certainty, for example, that every person who has come to the UK

``One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident. It is right that the decision on whether someone is resident here should be made by a competent court with the benefit of all the evidence in a particular case.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 85.]

The trouble is that definitions of residents will have little to do with the degree of moral culpability that is attached to the crimes with which they are charged. The definitions deal solely with the issue of jurisdiction. The test has been used in cases of different sorts, but in a criminal statute such as this, it seems probable that the courts would, in accordance with ordinary rules of statutory interpretation, interpret a legally uncertain phrase such as ``residence'' very narrowly. That means that the Bill will hinge on an uncertain test, or on a legally certain but narrow definition. We should not be happy with either.

The Government indicated in another place that the flexibility provided by the legally uncertain definition would increase the deterrent quality of the provision. If a person suspected of ICC crimes cannot know definitively that he will not be tried if he comes to the United Kingdom, he will not come. However, if other states follow the Canadian example, or even adopt the stricter New Zealand approach, we may find that uncertainty of prosecution in this country makes coming to the United Kingdom the best available option. If the criminal courts adopted the most narrow available formulation, the deterrent effect of a flexible residence test would be significantly reduced. I will not labour these points because our time is limited, but it is possible to sustain my arguments using the jurisprudence of the courts. For that reason, the residency test is not satisfactory, although it marks a step forward from the original Bill.

On the issue of the rationale—a point made by the hon. Member for Reigate, on whom the Minister intervened—it might be helpful if I quoted from a letter that I received from Professor Adam Roberts, the Montague Burton professor of international relations at Oxford. He noted that there had been a certain lack of discussion in another place and quoted from an article in The Guardian that he had written:

``As currently worded the bill applies only to UK residents. It should be amended so that the threat of being taken to the ICC can apply to all those present in the UK. The rationale behind this necessarily terse wording is as follows. A clear and unambiguous capacity for ICC crimes to be investigated and prosecuted promptly and efficiently on a national basis will be important for the effective operation of the ICC itself. As it stands, the bill seems to be based on an assumption that a foreign person alleged to have committed an ICC crime who arrives in the UK (for example on a short visit) would only be the responsibility of the ICC; and in particular that the UK could do nothing about the detention, investigation and prosecution of such person until the ICC itself had taken action. The obvious problem with that assumption is that any ICC action...could be a long process.''

We need only refer to article 15, which deals with the work of the prosecutor, to see that that is true. He continues:

``In reality, if the ICC is to have a chance of trying such a foreign person, it may be necessary that proceedings be initiated on a UK national basis, with the possibility that the case might in the fullness of time be taken over by the ICC.''

I should say in conclusion that I am conscious that we are considering the Bill against an unusual political backdrop. It appears that there are time constraints—I am not referring to this particular sitting, but to later stages of consideration. In no way do I want it to be defeated by the happenstance of the Dissolution of Parliament. None the less, we are addressing an extremely important issue that is central to the effectiveness of our national involvement in the prosecution of the purposes of the statute of Rome.

I do not intend to press the matter to a Division. If the amendment were carried, there would be unfortunate procedural consequences, but regardless of the prospects of that, one must speak in the way one would wish. In the light of the definitions referring to residency, will the Solicitor-General confirm that nothing in the Bill will exclude or limit the United Kingdom's right under previous legislation—for example, the Geneva Conventions Act 1957—to prosecute all those present, even temporarily, in the United Kingdom if they have committed serious violations of existing rules of international law that are applicable in armed conflict? If such an assurance can be given, some of the anxieties about the Bill's structure might be less acute.

I regret that we are deliberating on these matters at this stage in the life of this Parliament, for otherwise I think that we could have done better. I do not doubt the Government's good faith in acting as they have, but a little longer discussion might have led to somewhat different conclusions.

Oona King (Labour, Bethnal Green and Bow)

Thank you, Mr. Cook, for the opportunity to contribute briefly to the debate on residency. I enjoyed tremendously the contribution of the hon. Member for Reigate. I have never seen a Tory get so sincerely worked up about the need to track down war criminals and dictators—whether they are in Lady Thatcher's living room or elsewhere—and I welcome that. However, it is important that we state categorically that when a person comes to this country, be they resident or merely present, they will be brought to justice if there is an ICC warrant for their arrest. I know that the Solicitor-General will be able to assure us categorically that such a person would be tried in the UK or extradited by the ICC.

The hon. Member for Reigate raised the further issue of the ICC's being unwilling or unable to act. The Solicitor-General said that that is a different argument and he is right, but I hope that he will forgive me if I pursue one or two related points. In what circumstances might a war criminal be present but not resident in Britain? How would the Government deal with lower-ranking perpetrators of war crimes in this country? If there were no warrant for such a person's arrest but evidence subsequently came to light to suggest that they were indeed suspected of war crimes, and if we did not want to try them here because they were not resident, how would we go about requesting that the ICC initiate its procedure? Would we have the power to detain such a person while we carried out the necessary procedure?

There are many relevant examples in my constituency. It has a large Somalian community and a large Bangladeshi community, and there are many war crimes in both those countries. Someone visiting one of the many world-class tourist attractions in the east end, such as the Crown jewels, might see the person who had tortured them. If the British Government believed that they had received adequate evidence to think that that person was reasonably suspected of war crimes, what would happen? There would not, as yet, be a warrant out for the arrest of that person.

Another example relates to the Congo, where there is a civil war continuing and where six Red Cross workers were tragically murdered last week. The question that I want to ask in relation to the amendments is this: if there was no jurisdiction over an offender because the Congo had not accepted ICC jurisdiction or because the offender's nationality could not be established, Michael Birnbaum and Peter Carter, the QCs mentioned earlier, maintain that if the offender were to come to the UK, he would not be at risk of prosecution because he would not be a resident. Will the Minister clarify my understanding, which is that he would, in fact, be at risk of prosecution?

Points were made earlier about the happenstance of the dissolution of this Parliament. I think that we would all welcome any measures that might take place afterwards to strengthen the provisions that have been laid out.

Ross Cranston (Labour, Dudley North)

The first set of amendments, from the hon. Member for Reigate, would result in universal jurisdiction. The second, from the right hon. Member for Caithness, Sutherland and Easter Ross, would impose the presence test.

The Government have already moved a considerable distance from the consultation draft. We made two major changes to the Bill as a result of listening to what was said in the other place and by the NGOs. One, to which we might return later, relates to extradition and the dual criminality provision, especially in clause 72. In addition, we have here extended the jurisdiction of UK courts to persons resident in the United Kingdom.

It is misleading to say that all the countries that the hon. Member for Reigate listed have taken universal jurisdiction. A presence test is not universal jurisdiction. Many countries have simply passed legislation to enable them to surrender persons to the ICC, and do not even have the equivalent of part V of the Bill in making such crimes domestic crimes. I can, therefore, refute that point now.

We have said that we have severe doubts about taking jurisdiction over people who have no substantial link with the United Kingdom. Historically, our practice has been to take universal jurisdiction only when it is obligatory as a result of an international agreement. The torture convention that the hon. Gentleman mentioned, the hostage taking convention and the grave breaches of the Geneva protocols are cases that involved obligations on our part to take universal jurisdiction, and we did so. I assure the right hon. Gentleman that the Bill does not affect the universal jurisdiction that operates over grave breaches of the Geneva protocols. That universal jurisdiction will remain. As we have seen, the Bill mirrors the provisions of the Geneva protocols to a large extent.

Crispin Blunt (Conservative, Reigate)

The hon. and learned Gentleman makes the point that where the United Kingdom has been successful when negotiating international treaties in placing an obligation on those who are party to the treaties to implement universal jurisdiction in law, we have done so, but where we have been unsuccessful in achieving universal jurisdiction—as with the statute—we are necessarily going to limit the position in domestic law here as well. That is a pretty shabby argument for not extending universal jurisdiction to the crimes under the statute, if the arguments for universal jurisdiction in matters such as torture stand on their own merits.

Ross Cranston (Labour, Dudley North)

Our argument is a principle; I will come to the policy argument in a moment.

In relation to the obligation concerning grave breaches of the Geneva protocols, such as torture and hostage taking, I have a point to make about genocide, which the hon. Member for Reigate mentioned. We have not had universal jurisdiction under the conventions; until now, we have not even had extraterritorial jurisdiction. As a result of clause 51(2), we will have extraterritorial jurisdiction over genocide.

Non-governmental organisations have raised an argument about the preamble. As my hon. Friend the Member for Kilmarnock and Loudoun spotted—perceptively, as in previous debates—the preamble does not impose an obligation. I am informed that there was no discussion at Rome of an obligation for states to take universal jurisdiction.

Edward Garnier (Conservative, Harborough)

There was no obligation, in that sense, to sign up to the statute. We did not have to do that.

In the face of the arguments raised in the other place when it was having the same discussion that we are having now, in the face of the arguments advanced by the right hon. Member for Caithness, Sutherland and Easter Ross and by my hon. Friend the Member for Reigate, and in the face of the scepticism expressed by some of the Solicitor-General's colleagues this afternoon, I find it puzzling that the Government's fondness for morality, which underscored their arguments in favour of the ICC, seems to be crumbling somewhat. The hideous expression ``practicality'' is, perhaps, entering the argument. Can the Government assure me that they are not moving away from the so-called moral stance that they advanced when they introduced the Bill to the House of Commons?

Ross Cranston (Labour, Dudley North)

I think that I can easily rebut that by invoking the points made by my hon. Friends the Members for Tottenham (Mr. Lammy) and for Preston. There is a principled approach here—an internationalism. We take the view that, where crimes have been committed overseas by persons with whom we have no link, it is for their countries to deal with such matters first. We have faith in the systems of countries such as the United States, which might not ratify the treaty, to deal with such war crimes, crimes against humanity and genocide. If states fail to deal with such crimes, the ICC is there as an expert, independent, powerful international body, with international legitimacy to deal with those grave crimes.

Crispin Blunt (Conservative, Reigate)

The Solicitor-General says that there might be no link with the United Kingdom. However, the link might well be that the victims are British.

Ross Cranston (Labour, Dudley North)

As I said, we rely on countries that have such a link to deal with the matter first. The ICC is then there as a back stop. We believe that the notions of nationality and residence provide those links. We do not consider that mere presence provides a sufficient nexus. The fact that we are taking jurisdiction over residents rather than those present does not mean that those individuals not resident are able to remain in the UK with impunity. While they are present in the UK, they are still liable to arrest and surrender to the ICC and to extradition to another state with jurisdiction over them. We have considered the issues of jurisdiction at great length and we are convinced that the approach that we now advocate leaves no room for the UK to become a safe haven for war criminals.

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

I accept what the Solicitor-General says about the UK not being a safe haven for war criminals, but it could be a place where they at least enjoy a rather pleasant holiday.

Ross Cranston (Labour, Dudley North)

The right hon. Gentleman has raised the issue of residence. What does the term ``residence'' mean? It is not a status, and it can be neither permanent nor exclusive. I appreciate that it involves uncertainty. However, that very uncertainty will dissuade war criminals from coming to this jurisdiction out of fear that the flexibility of the term may result in their being caught by it. We also take the view that if we tried to spell out the indicia of residence in the Bill we would almost certainly leave gaps, which would defeat our purpose.

My hon. Friend the Member for Bethnal Green and Bow (Ms King) asked what we will be able to do about middle-ranking persons who are here. Article 14 of the Rome statute clearly provides that we can refer such matters to the ICC, and our approach will be to co-operate with the ICC—or, if another state requests it, to extradite persons to the other jurisdiction concerned.

In summary, we have a three-pronged strategy. First, the ICC can request arrest and surrender. Secondly, if persons are resident here we can bring prosecutions. Thirdly, if a state with jurisdiction sought extradition we would consider it in the normal way. That is a strong regime that will send a powerful message of deterrence that the United Kingdom is not a place where war criminals may seek to evade the reach of the law.

Crispin Blunt (Conservative, Reigate)

Having listened to the arguments of the Minister, Labour Members and the right hon. Member for Caithness, Sutherland and Easter Ross, I have to say that I do not find the Government's case convincing. There are, as we have discussed, loopholes in terms of extradition. Moreover, I do not accept their position on the meaning of the preamble to the statute, which is perfectly clear to any reasonable person. I therefore wish to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Clause 84 - Short title