International Criminal Court Bill [Lords]

House of Commons, 10 May 2001.

New Clause 2 — Amendments of the ICC Statute

Crispin Blunt (Conservative, Reigate)

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

It is a pleasure to speak to new clause 2. We discussed it in Committee, but I chose to withdraw it so that we could return to it on Report. It deals with immensely important principles, to which we referred in the debate on the programme motion, despite Madam Deputy Speaker's energetic efforts to stop us. We are especially concerned about the ability of Parliament to oversee the Executive and the way in which it can--or cannot--control the royal prerogative power of treaty making. An interesting alliance was formed in the earlier debate between the hon. Member for Islington, North (Mr. Corbyn), my hon. and learned Friend the Member for Harborough (Mr. Garnier) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), all of whom identified the need to implement the principle that is at the heart of the new clause, which would give more power to Parliament to oversee the Executive.

The new clause also goes to the heart of the Rome statute and the problems that are inherent in it, which the Opposition tried to correct in Committee.

Jeremy Corbyn (Labour, Islington North)

The hon. Gentleman knows my opinions on the royal prerogative. Will he make it clear that the purpose of the new clause is to strengthen the Bill, not to impede it? He appears to be saying that if any change is made to the ICC statute, that should be discussed by us. Is that over and above what is in the Bill, or is he making a genuine attempt to ensure parliamentary accountability?

Crispin Blunt (Conservative, Reigate)

I am happy to allay the hon. Gentleman's concerns. This is a genuine attempt to increase the accountability of the Executive. It is possible to make substantial changes to the statute after we have concluded our proceedings and, unless we accept the new clause, we will have no means of bringing the Executive to account.

The hon. Gentleman will notice that the new clause refers specifically to article 121, which is the mechanism in the Rome statute by which amendments can be made. I have tabled it because I am concerned about the fault lines in the statute, which the article identifies. We have signed up to the statute, and it is possible that France will do the same. However, Her Majesty's Government have negotiated our proceedings in such a way that it is difficult to believe that other major countries, such as China, Russia, India and the United States of America, will also sign up. That is because the statute grants power on a nation-by-nation basis. There is no recognition of the contribution that each nation makes to world security or of the balance of influence in the world.

The statute sets out the majority that is needed for it to be amended. Fundamental amendments to the list of crimes will require a seven eighths majority of the states party to the statute to agree. Hon. Members should bear in mind the fact that even if the statute is amended fundamentally by changing articles 5, 6, 7 and 8, seven eighths of the countries representing 1.1 billion people could outvote the countries representing 3.8 billion people, if China and India accede. Governments who represent more than three quarters of the world's population could be outvoted on the most fundamental changes.

In Committee, the Solicitor-General made it clear that if changes arise from a seven eighths majority under article 121, they would have to be implemented in primary legislation because they would change the nature of what constitutes a crime in English law. I acknowledge that. However, he was not clear about changes to the way in which the court will be administered, which could be fundamental to its procedures and how it pursues those people whom it identifies as criminals.

We spent much time in Committee discussing the possibility of the ICC trying to bring British citizens to justice when the United Kingdom has decided that they have no case to answer. That could happen. I am sure that the hon. Member for Islington, North would say that that is appropriate because that is what the ICC is for. If individual nations seek to defend citizens in the event that they have committed a crime as decided by the ICC, those people should be brought to justice. If we in the United Kingdom decided that there was no case to bring against a British subject but there was still a warrant for their arrest and a desire to bring them to trial at the ICC, there would be a crisis between the UK and the ICC.

The way in which the court will operate, how individuals are elected to various positions and how the pre-trial chamber will work are matters that are contained in the detail of the statute, which can be amended by a two-thirds majority of the states parties. A collection of small countries representing a small fraction of the world's population could outvote the larger countries and a substantial majority of the world's population. In those terms, the figures become even more dramatic.

The interests of the large states have not been represented or protected in the statute, and a mechanism should have been found to enable that to happen. That is why, sadly, the large states are unlikely to ratify the treaty. In the end, that will be calamitous to the prospect of the ICC becoming the successful institution that I believe right hon. and hon. Members on both sides of the House want it to be.

The purpose of the new clause is to enable Parliament to have the opportunity, every time an amendment is agreed to the ICC statute under article 121, to consider it within six months. The Government would have to obtain the positive approval of both Houses. That is not a substantial parliamentary burden to place upon the Executive. A simple motion would have to be passed in each place. The clause does not provide that the procedure should be by way of positive resolution. It would impose a limited burden on the Executive in terms of parliamentary time.

Given that changes to the statute could be fundamental to the way in which the ICC works, the clause should commend itself to the House. The principle behind it appears to have the commendation of right hon. and hon. Members on both sides of the House. We heard from the hon. Member for Islington, North when we were debating the programme motion. In Committee, the Solicitor- General chose not to oppose my point in principle. He said:

"There is still a possibility for Parliament to examine other changes and express its views."

That adduces the Ponsonby report.

The hon. and learned Gentleman added:

"Perhaps parliamentary procedure rules need to be changed; that is a matter to which we are alive and are happy to consider, but in a different context."--[Official Report, Standing Committee D, 3 May 2001; c. 276.]

As the position in principle has been conceded by implication by the Solicitor-General in Committee, and given the view that has been expressed across the philosophical divide in the House about the necessity for Parliament to take greater power over the Executive's exercise of royal prerogative powers in this respect, the clause should commend itself to the House, and I hope that it will.

Edward Garnier (Conservative, Harborough)

I support the new clause because it allows us to consider the huge constitutional implications that lie behind the Government's prerogative powers, which they hold in trust for the sovereign, in the making of treaties.

In Committee, I complained on several occasions--no doubt to the great inconvenience and boredom of other members--that we could amend the Bill, subject to the arithmetic of Committee membership, but we could gain no purchase on the statute of Rome. All three parties represented in Committee agreed that the ICC was an aim worthy of achievement. However, we did not agree with the detail of the statute of Rome--the treaty that we were signing up to--in every respect. We had fundamental concerns, not least about the protection of our armed forces and our military and political commanders if the statute of Rome were to be ratified.

The clause highlights the absence of connection between the Chamber and the Government, which is the sovereign. As I said in an intervention on my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) when we were debating the programme motion, by means of the statute of Rome we are handing over powers to an extra-territorial body. We are not handing the powers of our citizens, which we hold in trust for them, to an extra-governmental body such as the United Nations or the European Union. They are being handed to a court. Once the court is set up after ratification by 60 states, Parliament will have little influence over it, except in the most indirect way.

I applaud my hon. Friend the Member for Reigate (Mr. Blunt) for reintroducing the debate at the 59th minute of the 11th hour of this Parliament. I am not necessarily wedded to the exact detail of his scheme, but that does not matter. Other schemes have been suggested. In the other place in the early part of the year, Lord Lester of Herne Hill mentioned referring treaties to Select Committees of the other place. He talked about the Ponsonby rule and about the Conservative Administration publishing impact statements for the consideration of Parliament on the effect of treaties upon the UK. However, none of the schemes that we have so far discussed allows in any real way for the elected Members of this place to have any control over how the sovereign power of exercising the prerogative is dealt with by the Government.

For once, I do not attack the motives of Ministers. They have plenty to be embarrassed about, but their motives in wanting the ICC to come into existence are of the finest. However, they appear to forget the constitutional issues that underlie the making of treaties, and the handing over of Parliament's powers and government to extra-territorial bodies, which must necessarily follow, is something that we ignore at our peril.

I may be wrong, but I suspect that until those matters came to be discussed in Committee, many Labour Members who served in Committee, and certainly many Members who were not on it, had no idea that they had no purchase on the treaty.

Des Browne (Labour, Kilmarnock and Loudoun)

I did.

Edward Garnier (Conservative, Harborough)

Of course, the hon. Gentleman knows everything. He showed us that in Committee. I am grateful for his attendance and his contributions. He adorned our debates in every sense, but he was unusual. There are many Members--this is not a party political point--who are not aware of the constitutional arrangements and are happy to troop sheep-like through the Lobby at the behest of the Government Whips, little realising that they will be handing over to extra-territorial bodies huge powers that they will never be able to recover.

We are sent here by the electorate to represent their interests. I suspect that they do not send us here--I know that this is the position in my case--to give the Government huge powers to hand over our responsibilities to extra-territorial bodies. That simple point is often missed and I am hugely grateful to my hon. Friend the Member for Reigate for providing an opportunity to debate it.

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

I am grateful to the hon. Member for Reigate (Mr. Blunt) for returning to the matter on the Floor of the House, not because I would like his new clause to be accepted or the progress of the Bill impeded in any way, but because parliamentary deliberation on treaties is an important constitutional issue that deserves wider and more extensive scrutiny in the post-election period.

Apropos of the new clause, I recall an incident in the development of our constitutional processes in Scotland. A certain lady became a lady licentiate of St. Andrews university. She was one of its first female graduates and, as such, she claimed the right to enjoy the franchise to vote for the university Member of Parliament. Had she been conceded that right, she would have been the first woman in the United Kingdom to have access to the vote. However, when the matter came before the court, her claim was overruled and the judge said that the constitution of our country could not be changed by a side wind.

As we were not able to extend the franchise to ladies through that adventurous episode in the Scottish courts, I suspect that it would be unlikely that we will be able to change the constitution on treaty making by assenting to the new clause--[Interruption.] That is not to impugn the motives of the hon. Member for Reigate or undermine the constitutional fact that Parliament can do what it likes with respect to legislation. None the less, on an issue of such importance, it would be more sensible to have a little time to deliberate on the implementation of the underlying principle of parliamentary involvement in treaty making, and review alternative ways of doing that. It is not necessarily the fact that we want to give Parliament the automatic power to dispense with a treaty obligation in defiance of the wishes of the Government of the day.

Robin Cook (Labour, Livingston)

The right hon. Gentleman made a valid point about wider constitutional questions and asked for a little time to consider them. I remind him and the House that, under the terms of the statute of Rome, there is all the time in the world. It prescribes that there shall be no amendments until seven years after it comes into force, and it is unlikely to do so for another year. In other words, we have eight years before we are faced with the first amendment, which is two full Parliaments--a long enough time, I should have thought, to have a leisurely debate on the constitutional principle that we are discussing.

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

I am obliged to the Foreign Secretary and delighted that he feels that degree of urgency about effecting change in the processes of which he has given notice; I hope that what he implies is justified.

Edward Garnier (Conservative, Harborough)

What the Foreign Secretary said is true, as it appears in article 121 of the treaty of Rome. However, the serious point is that, in that eight-year period, the House can do nothing about the matter. My complaint is that the House of Commons has no influence whatever on the making or suggestion of any amendments to the treaty.

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

If I understood the Foreign Secretary correctly, he was making the point that, under the statute, the process for making amendments cannot become operative within seven years. That is certainly long enough to make changes to our domestic procedures to allow effective scrutiny and involvement of the House of Commons and, perhaps, of another place, in the processes of treaty making. I put it no more strongly than that; I am not entirely certain about the matter and would like to have a genuine national debate about whether we want to take away from the Executive the last word in such a matter. However, it is useful to debate the subject, and I welcome the fact that the hon. Member for Reigate has tabled the new clause. 4.15 pm

Jeremy Corbyn (Labour, Islington North)

I shall be brief, as an awful lot of amendments have been tabled; I hope that there will be time to debate them this afternoon.

I have my doubts about the new clause, but I do not doubt the motive of the hon. Member for Reigate (Mr. Blunt) in tabling it. As my right hon. Friend the Foreign Secretary said, there cannot be any amendments until seven years after, I assume, the first 60 ratifications, which will make the treaty operational. As he said, there will probably be eight years until anything can happen, so there will be plenty of opportunities in the House during that period to consider any mechanism for reporting and reviewing the way in which amendments should operate.

I agree with the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) that the way in which the royal prerogative operates in treaty making is important. A central deficit of British constitutional arrangements is the fact that the Executive have always had much more power in international affairs than Parliament. We can legislate and vote only on consequential matters or have a vote of confidence in the Government, which are fairly blunt instruments for dealing with international affairs. There is no mechanism for dealing in a detailed way with the Executive's treaty making. A new Parliament will provide a good opportunity to review that.

When the Minister replies, will he comment on the reporting of what British representatives do in international organisations? There are many international forums, such as the United Nations and various UN and UN-related bodies, including the International Labour Organisation, the Human Rights Commission and many others, in which British representatives participate in debates and resolutions and agree decisions. At the end of the day, those things are fairly open, but there is no proper mechanism for reporting to the House--other than on the most dramatic events--what British representatives do. Any review ought to say that there should be a method of parliamentary scrutiny and, possibly, parliamentary involvement in such matters. It is all a question of how accountable we make the Executive in international matters.

When the Bill is enacted, we will cede quite a lot to an international court. Frankly, I wish that we were ceding more because there are weaknesses in the Bill, which I have tried to address in a couple of amendments. Generally speaking, we are establishing the principle of an international body to deal with criminals, or potential criminals, in a way that has not been possible so far unless, as I mentioned earlier, a special process was established, such as that for dealing with the situation in Germany, Rwanda or the former Yugoslavia. There is a case for setting up such a body, and I hope that we agree to it. However, I suspect that, in his new clause, the hon. Member for Reigate is confusing two different things. He is saying that there should be more scrutiny--I agree with that--but he is also saying that matters should come back to Parliament if there is going to be any change in statute. There will be no change in the statute for the first seven years of the treaty becoming operational, so there will be plenty of opportunity to deal with that issue anyway.

John Battle (Labour, Leeds West)

It is perfectly proper for us to discuss the principles and practice of parliamentary deliberation on treaties on the Floor of the House. That is a good and important debate, as the hon. and learned Member for Harborough (Mr. Garnier) said frequently in Committee. This afternoon, there has been consensus that we should address that theme. The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has participated actively in discussion of the Bill to the last moments of his time as a Member of Parliament, and leaves a large challenge to the House to address those matters in a timely way in future.

I want to argue that it may not be proper to use the Bill to change our procedures for scrutinising treaties in the House; the Bill is not an appropriate vehicle for that. The process of scrutiny is a significant question that comes within the ambit of discussion of the Bill. However, the Bill's aim and purpose is to allow us to ratify the statute of Rome and sign up to the International Criminal Court. The new clause is unnecessary, not simply because of the question of time, of which we are well aware, but because amendments to the statue will come before Parliament in the normal course of events. They will come before Parliament in two ways: there will be amendments that require implementation in domestic law, as the statute itself does--for example, on new crimes--or there will be technical changes that do not require primary legislation, but which will still be considered by Parliament before the Government accept them.

The Committee agreed that we should not use the Bill to introduce back-door legislation, and that the Bill should not be a vehicle for redefining criminal law or our criminal court procedure. It would therefore be inappropriate for the new clause to be written into the Bill to shift us in that direction.

Amendments to the statute already fall within the scope of parliamentary procedures for scrutiny, including the Ponsonby rule whereby they must lie before Parliament for 21 days before acceptance. Parliament would have time to debate any issues arising. All treaties and amendments not requiring legislative changes are subject to ministerial accountability to Parliament in exactly the same way as other areas of policy. It is not as though there is no scrutiny; the question is whether there is appropriate scrutiny. That is the larger question. I gave evidence to the Procedure Committee on this subject on 13 July 2000. On that occasion I emphasised that the Government remain open to considering ways of contributing to efficient and effective scrutiny of treaties.

The new clause refers to article 121 of the statute, which provides for changes to the statute only when they are accepted by seven eighths of state parties. That is a high threshold, in addition to the time constraint and the fact that there would be no amendments for seven years. In the light of the discussion, which can be continued more appropriately elsewhere in the House, I ask the hon. Member for Reigate (Mr. Blunt) to withdraw his new clause.

Crispin Blunt (Conservative, Reigate)

I listened to the Minister, who finished by referring to the threshold of seven eighths. I might point out to him that the threshold is one quarter of the world's population, as represented by its states, so the threshold is not quite as high as he implies.

I am grateful to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) for explaining the origin of the expression "side wind", which featured in our discussion in Committee. He pointed out, when I muttered at him from a sedentary position, that the court cannot change our constitution, but of course Parliament can. If we chose to do so, there is no reason why we could not change the Bill.

The Foreign Secretary said that we had plenty of time--eight years. I got the impression that the hon. Member for Islington, North (Mr. Corbyn) agreed with him in that respect. We may have eight years in which to come to grips with the matter, but I would not mind making a small wager with both the Foreign Secretary and the hon. Member for Islington, North that in eight years, when amendments under articles 121 and 122 take effect, we will not be very much further forward in the way in which Parliament examines treaties.

I have listened to the Minister's arguments. I hope that the discussion of the new clause has triggered a wider debate on the issue, and I hope that when we have a Conservative Foreign Secretary and Minister in a few weeks, they will contribute to a discussion about how Parliament will oversee the Executive with respect to treaties. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3 — Jurisdiction of the court

Francis Maude (Conservative, Horsham)

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

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss New clause 7--Ratification: reservations and declarations--

'The Secretary of State shall not ratify the ICC Statute unless

(a) a report is laid before Parliament, setting out

(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,

(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and

(iii) that report is approved by each House of Parliament.'.

Francis Maude (Conservative, Horsham)

New clause 3 would delay implementation of the Act until the Government exercise the seven-year opt-out which is provided for in article 124 of the Rome statute. This important matter was discussed in Committee. Throughout the deliberations on the Bill, both in the House and in the other place, the Government have singularly failed to answer adequately the Opposition's concerns.

We have said many times, and my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) said two years ago in response to the Foreign Secretary's original statement on the matter, that we support the principle of setting up the International Criminal Court. Nothing that we say in any way resiles from that. However, there are genuine concerns about the way in which the Bill will be implemented. Its implications must be properly probed and examined. As we said on Second Reading, we expect some changes to the Bill if it is to have our support.

The seven-year opt-out, which has already been exercised by the French Government, is a means of giving time to see how the court progresses. At the same time, it ensures that members of the armed forces are exempt from the jurisdiction of the Court for the offence of war crimes. Any number of soothing words have issued from the mouths of Ministers to allay the concerns that have been expressed, but none have been convincing. That is why we urge the House to adopt the new clause.

Our principal concern is the danger to members of the armed forces and the implications for the way they would have to operate--the constraints under which they would feel compelled to operate in circumstances which, as we all know, are already extraordinarily difficult. The Government have not given a satisfactory reason why they will not seek such a seven-year opt-out in the same way as France has. They have not said why they prefer other countries not to do so, or why France is fundamentally different from Britain and why, in their view, members of the British armed services should be subject to a lesser degree of protection than members of the French armed services.

New clause 7 relates to the declarations that we hope the Government will make on the statute of Rome and the reason for those declarations. It would mean that the Rome statute would not be ratified unless a report were laid before the House setting out those declarations and the reasons for them, any exceptions that the Government proposed to make and the reasons for them, and the approval of each House of Parliament was secured for such a report.

With the continuing uncertainty in respect of the protection of the armed forces, it is particularly important that Parliament should know what declarations will be made. As we have made clear, France has made such declarations, which seek to protect its armed forces; so has Israel. There is no question of those two Governments being opposed to the court in principle. As one of my hon. Friends said on Second Reading, Israel has been a long-time proponent of the idea of an international criminal court. If such states as Israel and France have such concerns, it is incumbent on the Government to tell us how they will protect our armed forces.

The concerns that have been expressed on a number of occasions have not been met. Those concerns began to emerge in reports to the newspapers some time before the Bill was introduced in this House, but after it had been introduced in the other place and proceedings there were under way. The reports, which looked like unattributable briefing from senior members of the armed forces, were raised in Committee in the other place. The Minister dealing with the Bill in the House of Lords said that there was nothing to worry about, that no representations had been made and that everyone in the armed services, including all the senior officers, were completely happy about the matter. It turned out that that was not the case.

I return to the points that we made on Second Reading and subsequently in Committee. Our concerns arose during the deliberations of the Select Committee that was established to consider not the Bill before us, but the Armed Forces Bill. The Committee took evidence from the new Chief of the Defence Staff, who was also asked about this Bill. My hon. Friend the Member for Grantham and Stamford (Mr. Davies) said:

"Let me ask you about another piece of prospective legislation, because it is very important for this House to get the best military advice before we legislate. Do you have any concerns about the potential impact of our ratification of the treaty setting up the International Criminal Court on military morale or operational effectiveness?"

I would add in parenthesis that the point about operational effectiveness is intensely important. The Chief of the Defence Staff gave a significant answer on which we should reflect carefully before we allow the Bill to proceed to its final stages:

"I do know a bit about this Bill, and I think that we need to be very careful indeed that when the Bill is taken through Parliament, we do not put ourselves in a situation where a junior person carrying out orders which he believes to be entirely proper can subsequently find himself in front of the International Criminal Court. So far, I have been told that this is unlikely to happen, because the national court would have the opportunity to investigate the case if it were pointed in that direction by the ICC."

My hon. Friend went on to ask the Chief of the Defence Staff the following question:

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

In response, Admiral--

Edward Garnier (Conservative, Harborough)

Admirable.

Francis Maude (Conservative, Horsham)

As my hon. and learned Friend says, he is also admirable. Admiral Boyce replied:

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

Clearly, the new Chief of the Defence Staff has got the measure of this Government pretty quickly, if he realises that an equivocal statement is the best that he is likely to get.

The men and women in the armed services, who come under the leadership of the Chief of the Defence staff--and the political leadership of Ministers in Her Majesty's Government--are entitled to something better than an equivocal statement. They are entitled to some real reassurance. When we probed the matter on Second Reading, the Foreign Secretary did his best to be reassuring, but I regret to say that he failed to allay our concerns. He could say only that it would not happen in practice. He would not say that members of the armed forces could not in practice find themselves pursued by the International Criminal Court, perhaps on the basis of a political vendetta by other countries that have grudges to settle. He could not say that it was impossible for that to happen.

I asked the Foreign Secretary why he could not accept the sort of proposals that we were putting forward if he was as confident as he was encouraging us to be and knew that our concerns were unrealistic. We seek only to provide the protection in absolutely concrete terms, in statutory form. That could be achieved not only through the opt-out provision, which would enable us to see how the International Criminal Court works in its important stages, but also by the introduction of subsequent amendments that we have tabled in relation to enabling the Secretary of State to exercise discretion. All those proposals would provide reassurance and protection for members of the armed services. I consider it a matter of regret that the Foreign Secretary and the Government have been unwilling to show any flexibility whatever on the matter.

Robin Cook (Labour, Livingston)

I remind the right hon. Gentleman that the statement that it would not happen in practice was not mine. I quoted the words to correct him, as he had quoted Geoffrey Robertson QC as saying that there was a theoretical possibility. I reminded him that it was my hon. Friend who went on to say that it would not happen in practice. In my speech, I said that British service personnel would never be prosecuted, as we could pursue any bona fide allegation ourselves. There is no prospect of the sort of mischievous prosecution by a malign state to which he referred, because of the pre-trial procedure. I remind him of the words of the Opposition spokesperson in the House of Lords, Lord Kingsland, who said:

"It is . . . a great achievement to have put in place a pre-trial inquiry to wash out of the system any bogus allegations."

It is time that the Opposition gave up arousing--in their own way, mischievous--fears about an outcome that will never happen.

Francis Maude (Conservative, Horsham)

Two points arise from those comments. First, it is extremely patronising of the Foreign Secretary to speak in that way about the concerns expressed by the Chief of the Defence Staff--[Interruption.] He says that we are raising unjustified fears, but we did not speak to the Chief of the Defence Staff, who came to his own conclusions about his concerns about the armed forces, for which he has to provide the military leadership. If the right hon. Gentleman is suggesting that the Chief of the Defence Staff is so weak and vulnerable that he will be taken in by scurrilous remarks made by the Opposition, he should bear it in mind that he is referring to a serious leader who must make his own judgments. The judgment that the Chief of the Defence Staff has made is that he is not satisfied with what the Foreign Secretary and his colleagues are saying. That is what he said when he was asked about the matter in the Select Committee on the Armed Forces Bill.

Robin Cook (Labour, Livingston)

The right hon. Gentleman knows perfectly well that the Chief of the Defence Staff said no such thing; neither could he possibly have said anything other than what I said on Second Reading, because the remarks with which the right hon. Gentleman is regaling the House at length--I think that he is doing so for the second time--were made before Second Reading and before I gave an unequivocal assurance.

Francis Maude (Conservative, Horsham)

I made it clear at the outset that the exchange from which I have quoted extensively occurred while the Bill was being considered in the other place. The concerns began to arise while the Bill was emerging from the other place and was in transit to this House. We were then able to raise the matter when the Bill was considered on Second Reading. It is remarkable that the reassurance that the Chief of Defence Staff needs has been provided by comments made by the Foreign Secretary in the Chamber. We were told that no concerns at all were expressed by senior members of the military or of the naval staff, but it turned out that that was not the case. At the time when the assurances were first made by Baroness Scotland in the other place, the Chief of the Defence Staff had already expressed the concerns in a House of Commons Select Committee, but the proceedings had not been reported at that stage.

My second point in response to the Foreign Secretary is that it is precisely allegations that are not well founded or based on bona fide cases about which we are concerned. Of course, we hope that a proper system of pre-trial review will weed out vexatious claims, but he cannot say with absolute confidence that it is impossible that any member of the British armed forces will ever find himself subject to the international jurisdiction of the International Criminal Court because the case will have been dealt with in international courts.

John Battle (Labour, Leeds West)

He will be charged by the national courts first.

Francis Maude (Conservative, Horsham)

I am not concerned about genuine cases, and I fully accept the Minister of State's remarks in that respect. Of course, the person would be charged by the national courts first in all such cases, but I am anxious about cases in which the national prosecuting authorities--whether military or civil--have already investigated a case and decided that no proper proceedings can be brought, but in which politically motivated proceedings--

Robin Cook (Labour, Livingston)

indicated dissent

Francis Maude (Conservative, Horsham)

The Foreign Secretary shakes his head and says that everything is fine, but it is not because that is not the end of the matter. It remains possible. Of course, if the matter has been adjudicated in the national courts, that is the end of it, but if the authorities have considered it and decided not to proceed in the national courts, it is still open to the ICC, as I understand it, to bring proceedings.

If the Foreign Secretary is so confident that it is completely impossible for those circumstances to arise, let him accept our amendments. They provide for a discretion to be exercised so that there is a watertight cut-out which enables Ministers who are confident that a case is completely vexatious to ensure that such a warrant is not executed against a member of the British armed forces. If he is so confident that the current system allows for that, let him provide for it in the Bill. Members of the armed forces are likely to place a great deal more reliance on something that is definitively enacted in statute than on his assurances.

Des Browne (Labour, Kilmarnock and Loudoun)

Can the right hon. Gentleman explain to the House how his proposed new clause would achieve the level of reassurance for our armed forces that he seeks to give them? I do not support it. Any reservation made in terms of article 124 would relate only to crimes under article 8. Our soldiers will still be subject to the jurisdiction of the court under articles 5 and 6. There is no mechanism for reserving our position in relation to the jurisdiction there. The Foreign Secretary cannot therefore use any word other than "unlikely" himself when he gives the reassurance, even if the amendment is passed.

Francis Maude (Conservative, Horsham)

The main reason for new clause 3, which would provide for the seven-year opt-out, is that we think that it the best way of providing protection--

Des Browne (Labour, Kilmarnock and Loudoun)

It is not watertight.

Francis Maude (Conservative, Horsham)

It is watertight in terms of protection for our armed forces. [Interruption.] The hon. Gentleman mutters from a sedentary position--

Des Browne (Labour, Kilmarnock and Loudoun)

I will clarify the intervention. The ICC will still exercise jurisdiction over our nationals or in respect of crimes committed on our territory in relation to articles 6 and 7. There may be allegations that such crimes have been committed by members of our armed forces. Any reservations under article 124 will not refer to them, so we will still have to rely on the bona fides of the prosecution and the court to give our armed forces the protection that they need. It is better that we are in there, ensuring that that happens from the outset, than that we have half a solution.

Francis Maude (Conservative, Horsham)

The Government of France sought protection because they are as concerned as we are about the jeopardy in which their armed forces may be placed by the treaty as it stands. Their declaration under the treaty is:

"The French Republic declares that it does not accept the jurisdiction of the court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory."

They may have used a completely worthless form of words, but clearly the French Government concluded that a declaration along those lines would give their armed forces the protection that they require. It is odd that the British Government should be so relaxed about this that they are not concerned to give British armed forces the same protection.

Mark Hendrick (Labour, Preston)

If the right hon. Gentleman is seeking to get immunity for British military personnel and, to follow that logic, every other signatory to the treaty of Rome in a similar position, would it not be the case that the ICC could not prosecute military personnel per se? Indeed, none of the crimes listed under article 8 could be brought to prosecution by the ICC.

Francis Maude (Conservative, Horsham)

The Foreign Secretary is trying to assure the House that there is no question of British armed service men ever being subject to the ICC in any event. All I am trying to do is to give legal effect through the statute to the Foreign Secretary's solemn declarations made in this House. If he is prepared to be so definitive about it here, why is he not prepared to provide an equally definitive protection to the armed forces in the statute?

Jeremy Corbyn (Labour, Islington North)

Can the right hon. Gentleman make absolutely clear whether his position is that the armed forces in general should be exempt from provisions in this statute?

Francis Maude (Conservative, Horsham)

I believe that the British armed forces should be exempt.

Jeremy Corbyn (Labour, Islington North)

Why?

Francis Maude (Conservative, Horsham)

In the absence of genuine immunity, the armed forces will find their military efficiency, morale and ability to be operationally effective seriously inhibited. There will always be the anxiety that they will be second-guessed subsequently by those who are not in a military environment and do not understand the pressures under which they have been working. Those are precisely the concerns expressed by a number of senior military officers. In the heat of battle with battlefield decisions to be made, officers try to the best of their ability to interpret and give effect to the rules of engagement under which they are operating. Just the thought of any risk of subsequent second-guessing may inhibit, and affect adversely, their military effectiveness. The result of damaging military effectiveness is lives put in danger. We think that that matters.

Robin Cook (Labour, Livingston)

Since the right hon. Gentleman appears to be labouring under a misunderstanding, may I assure him that there is nothing in the Bill that creates an offence that does not already exist in international law and to which British service personnel are not already liable and committed? It is fully reflected in their training. There is no evidence that that has reduced their operational capability. May I remind him that he was part of a Government who set up the International Criminal Tribunal on the former Yugoslavia?

Francis Maude (Conservative, Horsham)

I was not.

Robin Cook (Labour, Livingston)

The right hon. Gentleman says that he was not, but we can take it that he was at least complicit, by his membership card, in the actions of that Government. They set up the war crimes tribunal in the full knowledge that there were many thousands of British personnel in the former Yugoslavia. They, rightly, made no exemption for British personnel. Can he cite a single case where the operational effectiveness of British personnel in the former Yugoslavia was impeded by the existence of that tribunal?

Francis Maude (Conservative, Horsham)

As I have said on several occasions, if the Opposition had random, fanciful anxieties, the Foreign Secretary would be entitled to dismiss them airily and carry on regardless. However, those anxieties are not simply ours; the most senior member of the British armed forces, the Chief of the Defence Staff, said that he was genuinely worried that the Bill as it is currently drafted would impede military effectiveness.

Perhaps the Foreign Secretary wishes to ride roughshod over such anxieties, but they are genuine. One does not need to be absolutely sure that a risk will be realised; the possibility should be enough to make a responsible Government and Parliament think twice before enacting such a Bill. We have steadily proposed changes as the Bill has progressed. We cannot support the measure unless some serious changes are made.

Jeremy Corbyn (Labour, Islington North)

In response to my hon. Friend the Member for Preston (Mr. Hendrick), the right hon. Gentleman suggested that the Conservative party believes that the British armed forces should not be covered by the Bill. How would he respond if, for example, the Indonesian Government said that they were happy to sign up to the statute that establishes the International Criminal Court, but that it should not cover the Indonesian armed forces? That would be nonsensical. If we believe in international jurisdiction, it should cover everybody on everything.

Francis Maude (Conservative, Horsham)

I am a Member of this Parliament. We have a specific responsibility for members of the British armed forces. We ask them to risk their lives, sometimes in horrific circumstances, fighting for their country. We are the Parliament of that country, and it is therefore our task to voice genuine anxieties about our armed forces' safety, and their ability to operate effectively and discharge the heavy burdens that we place upon them from time to time. I am obliged to express those anxieties, and I am sorry that the hon. Gentleman does not feel able to pick them up.

Francis Maude (Conservative, Horsham)

There are other groups of amendments and we are subject to a stringent programme motion of three hours. I therefore wish to proceed with my speech.

Although the treaty was negotiated some time ago, the Bill was introduced extremely late. It is now being bounced through on a strict guillotine so that the Foreign Secretary can try to add a little lustre to his chipped and damaged ethical foreign policy.

The Foreign Secretary is trying to force through a Bill that genuinely places in jeopardy the military effectiveness of the British armed forces, so that he can continue his grandstanding and try to repair his discredited ethical foreign policy. The House should not accept that, and I therefore ask hon. Members to support the new clause.

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

I shall be brief. I wanted to intervene in the speech of the right hon. Member for Horsham (Mr. Maude), but that was not possible. I shall therefore say a few words about the new clause.

The proposal represents a classic Conservative party position: the opt-out. The new clause refers to seven years; it does not state: "for the duration of the next Parliament". Perhaps it means, "for the duration of two Parliaments". However, the right hon. Gentleman has let the cat out of the bag; the new clause represents not an opt-out for seven years, but opposition to the principle of subjecting the British Army to the Bill. That reflects the Conservative party position on the euro. The Opposition claim that they are doing something for a limited period, but only because they know that some of their colleagues would disagree if they stated that an opt-out was indefinite. They therefore adopt a compromise position of claiming that their proposal would operate for a limited period--seven years in the case that we are considering. [Interruption.] I am happy to give way to the right hon. Member for Horsham (Mr. Maude) if he wants to clarify matters.

Francis Maude (Conservative, Horsham)

The hon. Gentleman asks why the new clause specifies seven years. The answer is simple: the statute of Rome provides for that.

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

The period could be longer. The new clause could state, "seven years or more".

Francis Maude (Conservative, Horsham)

The statute of Rome provides for seven years.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order.

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

I am happy to give way again if the right hon. Gentleman wishes to respond. He does not wish to do that.

I shall draw attention to another matter. [Interruption.] I am happy to give way to the right hon. Gentleman.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

In view of the limited time that is available, I suggest that the hon. Member for Ilford, South (Mr. Gapes) carry on with his speech.

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

As my hon. Friend the Member for Islington, North (Mr. Corbyn) said, if we accept the new clauses, the British forces would be sending a very interesting message to other countries. If it is good enough for the International Criminal Court to be empowered to act against the armed forces of countries that perhaps do not maintain the scrupulous standards and have the generally exemplary record of our own armed forces, why is it not good enough for those provisions to apply to the British Army when it is serving with the United Nations in Bosnia, doing such an excellent job in Kosovo or protecting human rights and defending democracy in Sierra Leone?

Why should not the sanctions of the International Criminal Court apply to our armed forces, who are not accused of committing war crimes, massacres or human rights abuses--all of which are accusations that have been made against the armed forces of other countries that will be ratifying the International Criminal Court statute?

New clause 3 is a Conservative wrecking amendment. It is designed to wreck the Bill. We had it from the mouth of the right hon. Member for Horsham that Conservative Members' real position is to vote against, or at least not to support this International Criminal Court legislation. The public, the abused non-governmental organisations, and everyone in Churches, pressure groups, campaigns and schools can draw their own conclusions about Conservative Members' attitude to human rights, democracy and international law.

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

I had not intended to speak in this debate, but I very much disliked the implication of the right hon. Member for Horsham (Mr. Maude) that the Conservative party is the only party in the House that is concerned about the position of our armed services, and that in supporting the Bill we are in some way in dereliction of our obligation. That is a total defiance of sense and is at odds with the Bill's underlying purposes, one of which is the protection of our own troops from the violation of the laws of war by the creation of an effective system that eventually will be capable of bringing to justice those who deny that system.

In this century, our troops have been the victims of the defiance of the laws of war not in their tens or hundreds, but in their hundreds of thousands. In the first world war, how many of our people were gassed in defiance of the laws of war? How ineffective have we been in erecting a system of international justice to bring the perpetrators of such atrocities to justice? The reality is that this legislation is a very small step in effectively implementing what the Foreign Secretary has rightly described as existing international public law in relation to the laws of war.

The distortion and inflation of Admiral Sir Michael Boyce's comments--

Francis Maude (Conservative, Horsham)

rose--

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

I shall not give way to the right hon. Gentleman in the middle of a sentence. I would like to finish making the point before he replies to it.

Admiral Sir Michael Boyce was giving evidence on an entirely different matter when he made an incidental remark. I have no reason to believe that anything that he said expressed the view that the Bill should not be given effect. He certainly did not say so in terms.

Francis Maude (Conservative, Horsham)

rose--

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

Nor did he express the view that the statute of Rome was against the interests of our troops.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I cannot have two right hon. Gentlemen on their feet at the same time. I think that I can ask the right hon. Member for Horsham (Mr. Maude) to wait until the right hon. Member for Caithness, Sutherland and Easter Ross has signified that he is giving way.

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

I am most grateful, Mr. Deputy Speaker. I shall now happily give way.

Francis Maude (Conservative, Horsham)

I am grateful to the right hon. Gentleman. He accused me of having distorted the comments of the Chief of the Defence Staff, but I quoted the Chief of the Defence Staff absolutely verbatim. If the right hon. Gentleman thinks that someone who occupies such a position is prone to making casual, off-the-cuff remarks about a matter of such gravity, he has a much lower opinion of him than I do.

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

I most certainly did not suggest that, because we have heard those words and read them on a number of occasions. They have been repeated ad nauseam on the Floor of the House and in Committee, but they do not sustain the weight or the interpretation that has been attached to them. That is the point that I wanted to make. The Conservative spokesman is ignoring the whole purpose and point of the Bill and that should not go unchallenged. It is very much in the interests of our armed services that the rule of international law and the extension of the effectiveness of sanctions against abuses of the law are properly in place and that we can bring to justice the perpetrators of the crimes from which our armed forces have suffered over the past century and before. I commend the Government's efforts in doing so.

Des Browne (Labour, Kilmarnock and Loudoun)

I rise to oppose the amendments, if not in the same style, at least with the same quality of indignation that was expressed by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). The suggestion that the only hon. Members who can speak effectively on behalf of the safety and security of our armed forces are the few Conservative Members who have spoken today is an untruth that has to be put in its place. Looking at the amendments and the intellectual discipline that lies behind them, I suspect that they are nothing more than a lame excuse for an opportunity to vote against the Bill.

Eric Forth (Conservative, Bromley and Chislehurst)

What is wrong with that?

Des Browne (Labour, Kilmarnock and Loudoun)

I can tell the right hon. Gentleman what is wrong with that. The amendments are a lame excuse for an opportunity to vote against the legislation; they are not good reasons to do so.

My first point was also made by the right hon. Member for Caithness, Sutherland and Easter Ross and concerns the reliance that we place on the rule of law in relation to war for the protection of not only our armed forces, but our civilian population in a time of conflict. I made that point in Committee and it has never been addressed by anyone who has spoken in favour of amendments or in opposition to the Bill from the point of view that has been expressed by the right hon. Member for Horsham (Mr. Maude) or anyone else.

What message do we give other countries if we start to pick and choose when our soldiers will be subject to the rule of law in relation to war? What protection do we give our armed forces in the long term if we say to them that we are going into war in a situation where those with whom we are in conflict know that we have excused our armed forces from being subject to the jurisdiction of the court that will enforce these laws? If that cannot be answered other than by saying, "I am addressing this subject as a Member of the British Parliament", it does not stand examination.

Crispin Blunt (Conservative, Reigate)

The hon. Gentleman must appreciate that he cannot have his cake and eat it. The amendment would simply take into account article 124 and allow the armed forces to be exempt for seven years from article 8, which is the area of greatest concern to the armed forces and relates to a court over which we have precious little control, unlike the international tribunal over Yugoslavia, and to the nominations of the prosecutor and the judges. Britain has far less influence over how article 8 will be applied. For seven years, our armed forces will be able to see how the International Criminal Court works in respect of our armed forces. If, after seven years, we are content with the justice meted out by the British courts--as he rightly points out, British soldiers are subject to all the laws that the statute implements--we will be in a position to decide how the ICC is working. That is the purpose of the protection that we should be giving our armed forces.

Des Browne (Labour, Kilmarnock and Loudoun)

I thank the hon. Gentleman for that intervention which neatly brings me to my second point. I shall return to the nature of the reservation in article 124 and whether it can give our armed forces the comfort that the Opposition pretend that it can. That will be my third point. If we choose to take that reservation, what is sauce for the goose will be sauce for the gander, and every other country that has signed up to the statute--even some of those who were dismissed by the Opposition in Committee as being irrelevant to important international decisions because of their size, population or history--should be able to do the same thing. What sort of institution would we have if every nation exercised a seven-year opt-out for their armed forces, their nationals and crimes committed on their territory by other nationals? How would we then find out over seven years how the court dealt with crimes committed under article 8, when there would have been none for it to deal with? If every country exercised a reservation, as they would be entitled to do if we gave them the lead, there would be no seven-year history to rely on.

Why should we in the UK have the arrogance to say that the court should practise on other countries' nationals while we watch to see whether the standard of justice is good enough for ours? What sort of message is that for a civilised country to send?

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

We will hand over the selection of the prosecutor and judges of the International Criminal Court to all the nations that sign up, regardless of their size and weight. Would the hon. Gentleman be prepared to make such a change in relation to the United Nations, so that power was handed over to the General Assembly without the limitations of the Security Council? Does he understand the comparison?

Des Browne (Labour, Kilmarnock and Loudoun)

That is not a true analogy. The statute has been agreed by sovereign nations that discussed and negotiated a draft statute in a concentrated fashion against a set of international standards that they all accepted. They arrived at the statute in that fashion and, as one of the countries that put considerable effort into the eventual shape of the statute, we have agreed to ratify it. Importantly, we also agreed to treat the statute with the respect that it deserves. We undertook to put our faith in it and to work to ensure that the ICC can deliver what we hope it will deliver for peace in the world and the protection of humanity.

At this stage, we cannot say, in effect, to the ICC, "Go away and practise on all the wee countries and when you have got it right and are up to a standard that we think is appropriate, then we will let our people be subject to its jurisdiction." We cannot do that.

Crispin Blunt (Conservative, Reigate)

Yes, we can.

Des Browne (Labour, Kilmarnock and Loudoun)

We can if we want to give up our leadership role. If we want to retain that role and imbue the court with the standards that have been generated by our system of justice--of which we are all rightly proud--we have to play an active role from the outset and have the confidence to make our citizens subject to its jurisdiction.

Crispin Blunt (Conservative, Reigate)

Which other nation--other than France, which has taken this exemption--of those that will probably ratify the treaty, has the same commitment of its soldiers around the world as a contribution to international security as we have? Which other country has had a soldier die on active service in every single year since the second world war, other than the United Kingdom?

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. and learned Member for Harborough (Mr. Garnier) earlier said, with heavy irony, that I know everything, but I do not know the answer to that question. There is no point in my pretending that I do or giving the hon. Gentleman some smart reply, but that is not the point. We are not talking about justice by weighted majority. Opposition Members' arguments seem to depend on the size of a country's armed forces, or whether the armed forces involved are British. The contribution of sovereign nations to international justice must not be judged according to the number of citizens that they have or according to the size of their standing armies. Their contribution must be judged according to principles of decency, law and justice.

Britain has given many of those principles to the world. Arguments about the ICC should be tested against those principles, not against some pretended self-interest.

Gerald Howarth (Conservative, Aldershot)

It is the national interest.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect, it is not the national interest. The Opposition are using the argument as an excuse to vote against the Bill. The new clause purports to offer a principled reason for opposition to the measure, but no real principle is at stake. The Opposition contribution to debate on this Bill, on Second Reading and in Committee, has been a total pretence. They have pretended that, in principle, they are in favour of it, but all the time they have been constructing an excuse to vote against it at this stage in its progress. The truth behind that pretence is now visible.

Crispin Blunt (Conservative, Reigate)

The Government should call our bluff.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman is correct to say that the new clause is a bluff. It will be called.

Francis Maude (Conservative, Horsham)

The hon. Gentleman has said that the Opposition are simply looking for a reason to vote against the Bill. That is not the case: we are concerned with the Bill as it stands. However, my hon. Friend the Member for Reigate (Mr. Blunt) noted that Britain, like the United States and France, is one of the few countries that consistently deploys troops abroad. Does the hon. Gentleman consider it unprincipled of France to want protection for its armed forces when they are deployed internationally? Does he consider President Clinton unprincipled because, until the last moment, he refused to sign the statute in its current form--and then recommended that his successor did not ratify the statute?

Des Browne (Labour, Kilmarnock and Loudoun)

I am not privy to the motivations of other countries or their leaders. I am not prepared to speculate, but I have been present through every minute of parliamentary deliberation on this Bill, on the Floor of the House and in Committee. The right hon. Member for Horsham cannot say as much. I have been present to hear the arguments and to test them.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

My right hon. Friend has been able to read the debates.

Des Browne (Labour, Kilmarnock and Loudoun)

The question is not whether the right hon. Gentleman can read the arguments: sometimes it is more important to see the expressions on people's faces, and their body language, when they speak. I have been present at all the debates, and I have come to a view on that informed basis. I have not had the opportunity to spend the same amount of time with President Clinton or the French Government. If I had had that opportunity, I would have been able to reach an informed view on the matters raised by the right hon. Gentleman. I therefore do not accept his invitation to speculate.

However, I suspect that the French know how much protection the reservation under article 124 will give their armed forces. I also suspect that the right hon. Member for Horsham did not know that when he first moved the new clause at the Dispatch Box, because it had to be pointed out to him that it applies only to article 8--not to crimes alleged to have been committed in contravention of articles 6 or 7.

Therefore, even if the right hon. Gentleman were to succeed in getting the new clause accepted, how could he tell our armed forces that they would never, over the seven-year period, be subject to the jurisdiction of the International Criminal Court, or to the possibility of such jurisdiction? It is for the very reason that our armed forces might be subject to ICC jurisdiction that the whole of the court's jurisdiction should apply to Britain. In that way, we can ensure that the jurisdiction develops in the way that we want it to, in accordance with the standards that I described earlier.

For all those reasons, which I think are principled and logical, I oppose the new clause. Fundamentally, however, I oppose it to expose the reality behind it. The new clause is simply an excuse for Conservative Members to vote against the Bill.

Gerald Howarth (Conservative, Aldershot)

I strongly support the case so ably made by my right hon. Friend the Member for Horsham (Mr. Maude) in moving the new clause. It is vital, for a number of reasons.

Like the hon. Member for Kilmarnock and Loudoun (Mr. Browne), I was present at most of the Committee's sittings. As the Minister said, we had a constructive debate. The Minister was good enough to acknowledge that the issues raised by the Opposition were serious and that we had not been frivolous or wasted time. If we repeat some of the arguments that were advanced in Committee, it is only so that the House more widely should recognise that we had serious and responsible debates in Committee.

We are not talking about an ad-hoc tribunal such as that for Yugoslavia. The Bill will set up a supranational court for all time--that is what is so important. Protections have been built in, but there will be severe limitations on the influence that the United Kingdom can bring to bear over the passage of time. It is therefore right and proper for the House of Commons to consider most carefully the Bill's implications. Indeed, it would be a denial of our duty to the people of this country not to do so.

The new clause seeks to give the Government--the next Conservative Government on 8 June, and the one after that--time to see how the court will evolve, given all the implications that it will have for our armed forces. The court will not be cast in stone for all time but evolve, and we will have very little influence over that evolution. We have already discussed at some length how the House will have very little influence over the decisions made by the Government in representing the British case as to how the court develops.

There are three issues at stake and three reasons why I believe that the new clause should be accepted. First, it is the primary responsibility of the House to ensure that we give every possible protection to Her Majesty's armed forces. They are charged with the responsibility, by this House--and, more directly, by the Government of the day--to carry out the wishes of the House and the Government in defending our national interests abroad and defending our territory at home. Members of our armed forces join up with the very real prospect that they may be called upon to lay down their lives for their country--not something that those of us who stand successfully for re-election on 7 June will be called upon to do.

My right hon. Friend drew attention to the remarks of the Chief of the Defence Staff. I have met him only once, but I believe him to be an extremely able man. I would prefer to rely on his judgment, I am afraid, than that of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). Sir Michael Boyce has served with distinction in our armed forces. He understands what our armed forces are called upon to do, and he understands the implications. Ultimately, it will be his responsibility to carry out the wishes of the Government of the day. Therefore, it seems better to rely on his words than on those of probably any Member of the House.

I do not accuse the Government of indifference to the consequences for our armed forces of the passage of the Bill. However, as the Member for Aldershot--the home of the British Army--I think that the Government have not given full consideration to them. I do not refer to the way that the court would handle an accusation that members of Her Majesty's armed forces had contravened the articles of the statute of Rome, but to the evolution of the court--how things might occur in future and how our armed forces might be subject to such events.

Although there are members of the armed services in the constituency of every right hon. and hon. Member, and we all owe them a duty, I believe that the Conservative party has always been much more in tune with the concerns and needs of the armed forces. Labour Members may disagree, but that is my view.

My second point is that, in Committee, the Minister made great play of the fact that our armed forces would never be called on to face charges under the legislation. As the Foreign Secretary reminded us earlier, on Second Reading he said:

"British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities."--[Official Report, 3 April 2001; Vol. 366, c. 222.] That, in essence, is the Government's case.

Robin Cook (Labour, Livingston)

indicated assent

Gerald Howarth (Conservative, Aldershot)

The Foreign Secretary nods in agreement.

However, the point made by my right hon. Friend the Member for Horsham, which I want to emphasise to the Foreign Secretary, is that the Government are in no position to make that unequivocal guarantee. The Government rely on the principle of complementarity--a ghastly word that has been introduced specifically for this statute and its incorporation in United Kingdom law. That means that the United Kingdom will first hear any allegation made against a member of Her Majesty's forces. However, the Foreign Secretary and the Minister know that, under article 17 of the Rome statute, headed "Issues of admissibility", a case would be inadmissible where

"The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned".

But a caveat follows:

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

The Foreign Secretary cannot tell us today that, in 10 or 15 years, the ICC may not take a contrary view. For example, what would happen if the United Kingdom decided that a military operation involving substantial loss of civilian life was none the less not a war crime under the measure, but the ICC took a different view? I speculate, but I am entitled to do so. If we decided not to prosecute in such a case, the court could say that, although the United Kingdom was unwilling to prosecute, the military operation was excessive and did not justify the resulting loss of civilian life. The people involved--possibly even our Prime Minister--could be brought before the court.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman and I took part in some interesting debates in Committee. He raises an important point of principle in respect of the establishment of an international criminal court of any description, never mind the one that we are discussing. Against the standard that he sets, we cannot give our armed forces an unequivocal guarantee that they will not be brought before the International Criminal Tribunal for the former Yugoslavia, which exercises a jurisdiction that is not complementary to but supersedes that of our domestic courts. Should we therefore withdraw our forces from their peacekeeping work in the former Yugoslavia?

Gerald Howarth (Conservative, Aldershot)

The hon. Gentleman has made that point several times, and I defer to my hon. Friend the Member for Reigate (Mr. Blunt), who has comprehensively demolished his argument on that score. That court was an ad-hoc tribunal, but the International Criminal Court will not be. It will be a major international institution, for all time to come. My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) pointed out to the hon. Member for Kilmarnock and Loudoun the difference between the constitutions of the International Criminal Court and the United Nations, and between the influence that the United Kingdom has in the United Nations and its lack of influence in the International Criminal Court.

Des Browne (Labour, Kilmarnock and Loudoun)

Is the hon. Gentleman arguing that if any of our forces came before the ICTY, we would immediately withdraw our support for it? Is the difference between an ad-hoc tribunal and an established court simply that we can withdraw our support from an ad-hoc tribunal the moment that a UK national or member of the British armed forces comes before it? Is our support for international justice conditional on its not applying to us?

Gerald Howarth (Conservative, Aldershot)

The ICTY was set up during the conflict and at the end of the conflict, British troops obviously had not infringed. We are trying to anticipate scenarios where our troops could stand accused of having committed war crimes that were not considered, either by the Government of the United Kingdom or by our courts, to be war crimes.

The hon. Gentleman made an interesting point. He said that there was no guarantee that we could give our troops in respect of the ICTY. I repeat that the Foreign Secretary said:

"British service personnel will never be prosecuted by the International Criminal Court".--[Official Report, 3 April 2001; Vol. 366, c. 222.]

Does the hon. Member for Kilmarnock and Loudoun disagree with the Foreign Secretary?

Des Browne (Labour, Kilmarnock and Loudoun)

indicated dissent

Gerald Howarth (Conservative, Aldershot)

The hon. Gentleman does not disagree with his right hon. Friend, but we are saying that the Foreign Secretary is in no position to give that guarantee, which he has sought to wave in front of Admiral Sir Michael Boyce and the rest of our armed forces.

Crispin Blunt (Conservative, Reigate)

The point that my hon. Friend is making was illustrated by the Solicitor-General's promise in Committee concerning the fact that the prosecutor of the ICTY decided that the bombing of the television station did not amount to a crime, as far as the Prime Minister was concerned, and that he should not be brought to justice in front of The Hague tribunal. That was a decision of the prosecutor--a prosecutor over whom we had much greater influence and control than we shall have over the prosecutor--

Robin Cook (Labour, Livingston)

Withdraw.

Crispin Blunt (Conservative, Reigate)

I heard the Foreign Secretary say, "Withdraw."

Robin Cook (Labour, Livingston)

rose--

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The Foreign Secretary cannot intervene on an intervention, even though he may, like me, have begun to wonder whether it was a speech.

Crispin Blunt (Conservative, Reigate)

I shall deal with the point if you will let me, Mr. Deputy Speaker. The Foreign Secretary was saying, "Withdraw." Voting for the prosecutor in the International Criminal Court is by majority, and the United Kingdom and other states could be outvoted. It is clear that we have less influence over the selection of the prosecutor for the ICC than we did over that of the prosecutor in The Hague. That is the simple point that is being made, and so--

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. Interventions have been getting longer and longer, and it would be better if hon. Members kept perorations out of them.

Gerald Howarth (Conservative, Aldershot)

The exchanges illustrate the nonsense of the Government's position in having tried to rush this measure through and force us into a programme motion tonight. This is a very serious issue, which affects our country, and particularly our armed forces. It is a tragedy that the Government have sought to treat the matter in this way.

I said that I had three points to raise, and I have raised two. The first concerned our armed forces, and the second my belief that the complementarity argument was not a sufficient safeguard for our troops. Thirdly, as my right hon. Friend the Member for Horsham mentioned, the French have reservations. I am not known for siding naturally with the French, but I can tell the Foreign Secretary that I love going on holiday to France, and that I have a French brother-in-law and a French motor car. I do not think that I can be accused of xenophobia.

Not only have the French entered reservations; so has the United States of America. I do not want to labour the point because I think that most members of the Standing Committee and most Members of the House are well aware that it was not until the dying hours of his somewhat discredited term of office that President Clinton signed the treaty and left the Senate to ratify the statute. It is clear that the Bush Administration are wholly hostile to ratification.

Francis Maude (Conservative, Horsham)

Does my hon. Friend recollect that President Clinton not only signed the statute at the very last moment, but specifically said when doing so that it was only to preserve America's negotiating position and recommended that his successor should not ratify it?

Gerald Howarth (Conservative, Aldershot)

That is a most telling point and a powerful reason why the House should accept the new clause.

I think that I heard the Foreign Secretary on "Today" earlier this week or last week say that the United States was our closest ally. [Interruption.] I think that he is saying "Hear, hear", so he accepts that. If our closest ally has such reservations about the International Criminal Court, why do the Government want to rush headlong into ratifying the statute, failing to take advantage of the breathing space afforded by article 124?

Mark Hendrick (Labour, Preston)

Will the hon. Gentleman give way?

Gerald Howarth (Conservative, Aldershot)

If the hon. Gentleman will forgive me, I will not give way because I want to conclude.

I remind the House that on 29 November last year, a group of very senior American public figures sent a note to the majority whip in the US House of Representatives expressing strong support for the American Servicemembers' Protection Act 2000, which was introduced to protect the sovereignty of the United States in respect of the International Criminal Court. The letter said:

"War crimes and other human rights violations have long been subject to criminal penalties under U.S. law, and the United States has a far better record of enforcing its laws against human rights violations than some of the countries that support the ICC."

That letter was signed by a cast of senior people who were involved at the highest level of government in the most recent conflicts in which the United States and the United Kingdom have taken part: Lawrence Eagleburger, former Secretary of State; Caspar Weinberger, former Secretary of Defense; Henry Kissenger, former Secretary of State; Donald Rumsfeld, former Secretary of Defense; George Shultz, former Secretary of State; James Baker, former Secretary of State.

Those men are hugely powerful, and they are protecting their armed forces. We should protect ours. One way in which the Government could do so, which would not undermine the Bill or the Government's position in respect of the International Criminal Court, would be to accept the new clause, thereby allowing us to derogate for seven years and buying ourselves some time while we see how the court develops.

Jeremy Corbyn (Labour, Islington North)

I shall be brief because we are nearing the end of the debate.

I have a feeling that if the hon. Member for Aldershot (Mr. Howarth) had been a Member of this House during the summer of 1945, he would have made exactly the same speech about why we should not ratify the United Nations charter, as, no doubt, he would have about the League of Nations covenant, the International Labour Organisation declaration and any international treaty there ever was.

We seem to be losing sight of the reality that the Bill has come about because of the revulsion of many people around the world at abuses of human rights and the unbridled power of dictatorships. They see the need to bring such dictators to heel if they are no longer to be the victims of the arbitrary power that is often held by military dictators and regimes.

I remember--I am sure that many hon. Members do--the trenchant defence of General Pinochet that was mounted by the hon. Member for Aldershot and some of his friends. They continue to do that but at no stage have they ever appeared to notice that thousands of people died in Chile at the hands of Pinochet and many others. Pinochet could not be brought to court under this process, because it is not retrospective. However, it will ensure that any country that signs up to the treaty will--yes--expose itself to possible prosecutions under it but, in doing so, it will set an example, a standard and a norm. That is why I strongly oppose the new clauses.

As my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) said, if we believe that every other country should sign up to the treaty and possibly put all their institutions before an international court, we should be prepared to do exactly the same. If Argentina, which has signed and ratified the treaty, has not asked for an exemption for its armed forces--and, my God, Argentine armed forces committed many human rights violations at the time of Operation Condor--what have we got to be afraid of? We should sign up to the treaty in its entirety.

Gerald Howarth (Conservative, Aldershot)

I understand that the hon. Gentleman wants Senator Pinochet to appear before the International Criminal Court, but does he want the President of China to appear before it too?

Jeremy Corbyn (Labour, Islington North)

Although the hon. Gentleman was a member of the Standing Committee and I was not, I have pointed out to him on many occasions that it is not retrospective legislation. If any country that signs up to the treaty is accused of violations of human rights or matters that would bring it within the purview of the International Criminal Court, it should be brought within its purview. That is the basis of the process.

The idea that we should ask for an exemption for our armed forces is ridiculous. If we ask for that exemption, who are we to oppose anyone else's exemption? My hon. Friend the Member for Preston (Mr. Hendrick) pointed out--many of us have--the consequences of our asking for an exemption. What would happen if Indonesia said that it was happy to sign the treaty, but would not, at any stage, allow the Indonesian armed forces--many of us have seen what they are capable of in East Timor and other places--to be exposed to any prosecution under the law? That would be a joke, and everyone would know it.

It is important that all institutions are covered by the court, but we should remember that many of the worst violations of human rights are not carried out by statutory armed forces but by militia forces acting more or less on behalf of the armed forces. Let us consider what happened in East Timor, and is now happening in Aceh and West Papua in Indonesia, or events in Colombia. There are many other examples of armies and regimes using militia forces to carry out the most appalling violations of human rights.

The House has an opportunity today to allow the Bill to proceed. I regret the exemptions that are included in the Bill and that we shall not have time to debate them. I hope that, in another Parliament, we shall be able to return to the issue and deal with those exemptions, because I do not believe that the power of discretion that is held by the Attorney-General and the Foreign Secretary is necessarily within the spirit of the Bill's origins.

Francis Maude (Conservative, Horsham)

The hon. Gentleman referred to Indonesia, but does he not understand the position that Britain is in? Britain is one of the three western countries that consistently and properly deploy their troops abroad in peacekeeping and peacemaking operations. The other two are France and America, and Socialist Prime Minister Jospin and the former Democrat President Clinton have both seen grave dangers in subjecting their armed forces, which are involved in such operations, to the jurisdiction of the court. Why does he think that Britain's armed forces should uniquely in this group of three internationally oriented sets of armed forces be put in jeopardy in this way?

Jeremy Corbyn (Labour, Islington North)

If we believe in the rule of law, in international conventions and in the power of a democracy to control its armed forces, what have we got to be afraid of? We should sign up to the treaty in its entirety.

It is obviously true that British armed forces are involved in various parts of the world. I sometimes wish that they were not. They are not always under the control of the United Nations; sometimes they are under NATO command. We are not the only country to deploy forces elsewhere. India, Ireland, Sweden and Canada do the same. Many not so large countries have often made significant contributions to the work of the UN. I hear no arguments from them that their armed forces should be exempt. We should reject the Opposition's isolationist arguments and the new clause. We need to put the Bill on the statute book and return to it so that it can be improved.

John Battle (Labour, Leeds West)

The hon. Member for Aldershot (Mr. Howarth) was gracious enough to suggest that we had an important and serious debate on these matters in Committee. That is also true of today's debate. New clause 3 is bit of a misnomer--it is actually a retread of a new clause that was discussed in Committee. Nevertheless, the debate has been rigorous, with good and telling contributions not least from my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

The purpose of the new clause is to bind the Government to the opt-out for war crimes under article 124 of the Rome statute. It is a delaying measure. The more I listened to the debate, the more convinced I became that the Conservatives are not behind the Bill's principles. Contrary to their arguments, we have every reason to be bound by the provisions of article 8 of the ICC statute. The crimes set out in that article are already crimes in international law. That message has not gone home. Many were incorporated into domestic law by previous Conservative Administrations under the Acts to implement the Geneva conventions. Why do they want to tear them up? I was slightly surprised by the tone and direction of the debate.

Our armed forces already abide by those rules, against which their rules of engagement are drawn up and their conduct is judged. They are the rules by which they operate and, I believe, by which they excel in the practice of their duties. British troops serving in Bosnia or Kosovo are subject to international jurisdiction, which investigates allegations of the same crimes. The International Criminal Tribunal for former Yugoslavia is a good example to consider. The international jurisdiction has not hampered its operations, as some hon. Members suggested. We need to be more positive and say that without this measure, our armed forces will be hampered. We are providing positive protection to give them full and proper back-up. We are not undermining them, but strengthening the protection of our service personnel against others who will not abide by international law.

It is critical that we reject the new clause. It is also important to demonstrate leadership and stand up for the rule of law around the world. This country and its armed forces have been doing that on a daily basis for years. We should support them.

Crispin Blunt (Conservative, Reigate)

Perhaps the Minister could explain why the French have made at least eight definitional declarations about what article 8 means in their declarations on signing the treaty.

John Battle (Labour, Leeds West)

I am happy to discuss France. The hon. Gentleman has followed our debates in detail and I am sure that he is aware that article 8 crimes are drawn from the first additional protocol of the Geneva conventions. Almost alone among NATO members, France has not signed that protocol. I suspect that its caution can be ascribed to that fact. However, we have signed and ratified the protocol. Indeed, that was done by the previous Administration. If they signed us up to the Geneva conventions, which are implemented in international law, there is no reason why we should not move forward and implement the ICC statute.

I told the House that if we exercise the opt-out, we will send the most appalling signal to those countries that we want to encourage to build the international institution and ensure that it is properly supported. On the Rome statute, Lord Kingsland said:

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

Even the Opposition Front-Bench spokesperson in another place argued and agreed that there should not be an opt-out. I am surprised that the Opposition spokesperson in this place does not agree with what has been going on down the Corridor in the House of Lords.

The ICC poses no threat to our armed forces. It will have no impact on their rules of engagement. It will make no change to the fundamental laws of war under which our armed forces already operate, and which are part of the daily training of every British serving officer. The Ministry of Defence has been engaged at every stage in the elaboration of the statute and in the drafting of the Bill. It is content that the Bill gives full protection to our armed services.

I remind the Opposition that the former head of the Army legal services, Major General Tony Rogers, said:

"When carrying out attacks on military objectives, we are already under a treaty obligation not to cause disproportionate incidental loss and damage to the civilian population."

He added:

"The Geneva Conventions have been put to the test recently. I am not aware we had any problems complying with our treaty obligations during the Gulf War or 1991 or the Kosovo war of 1999."

The same point has been made by others, and I shall give an example. The hon. Member for Aldershot wanted to quote American examples. If he were to read the Harvard International Law Journal, he would find that Jocknick and Normand have written:

"One claim has survived the twisted aftermath of the Gulf War intact--namely that the coalition used modern military techniques to comply with the fundamental legal requirements to distinguish between civilians and combatants more effectively than any belligerent in any past war."

General Colin Powell commented that the decisions were impacted on by legal considerations at every level and that the law of war proved invaluable in the decision-making process.

Judge Richard Goldstone, the former prosecutor of the international tribunals for the former Yugoslavia and Rwanda, commented "I have no doubts that the fears are without justification at all. Firstly, the war crimes defined in the Rome statute are really the most serious war crimes internationally committed." We should remember that. We are talking about crimes of genocide--crimes against humanity. These are megacrimes. The judge added "In the second place, the ICC will not have jurisdiction at all over a British citizen if the British military and civil courts investigate in good faith any allegations made."

Ten current and former presidents of the United States Society of International Law, replying precisely to the letter that the hon. Member for Aldershot read out and prayed in aid, said:

"Seldom in the course of public discussion of a great international issue have so many great and good former officials been so misinformed about fundamental principles of international law. Without some international agreement to the contrary, the American airman shot down, for example, while carrying out a bombing mission over foreign territory will under customary international law be subject to territorial jurisdiction of a target state. This is not a newly minted principle of customary international law."

Similarly, what we are doing is not new and is not a newly minted principle. We are continuing the proud and honourable role that the United Kingdom has played in the development and enforcement of international humanitarian law. We have a history and a tradition that go back to the 17th century of drawing up rules of engagement, and we have been proud to be part of that process.

Britain has played a full part in the development of the laws of war. It was Conservative Governments who passed the relevant legislation in 1957 and 1995 that enabled the ratification of the Geneva conventions and the additional protocols.

There have been some interesting exchanges during this debate. The more the shadow Foreign Secretary was challenged by my right hon. Friend the Foreign Secretary, the more his arguments were exposed. He does not simply have reservations about the details of the Bill. The right hon. Gentleman demonstrated that the Conservatives oppose the Bill in principle and that their amendments are stalking horses for blocking it and ensuring that it does not take its place on the statute book. I recommend that we reject the new clause.

Francis Maude (Conservative, Horsham)

This has been a useful debate because it has established beyond any doubt the fact that the Foreign Secretary is simply not able to give a binding assurance to our armed forces that they will be secure against vexatious prosecutions conducted under the Bill. The hon. Member for Kilmarnock and Loudoun (Mr. Browne) has made it clear that that possibility cannot be excluded under the Bill in its current form. Frankly, we heard some thoroughly bogus arguments from Government Members. The case was made that, somehow, article 124 does not apply to war crimes; it permits article 8 on war crimes not to be applied to a country's armed forces, which is why the French exercised their opt-out.

British armed forces are in a special position because they, along with the French and the Americans, are consistently deployed abroad. The Americans have made their decision; President Clinton--not President Bush--said that he would not ask the Senate to ratify the treaty, nor would he recommend that his successor did so. Socialist Prime Minister Jospin--

It being three hours after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put and negatived.

Order for Third Reading read.