§ `If an amendment is adopted to the ICC Statute under Article 121, within six months of the meeting of the Assembly of States Parties which adopts such amendment Her Majesty's Government shall obtain approval for such amendment by positive resolution of both Houses of Parliament, failing such approval being given six months after the meeting of the Assembly of States Parties Her Majesty's Government will give notice for withdrawal under Article 127.'.—[Mr. Blunt.]
§ Brought up, and read the First time.
3.53 pm§ Mr. Crispin Blunt (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.
§ Mr. Jeremy Corbyn (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?
§ Mr. BluntI 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, 321 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 eights 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.
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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 322 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.
Mr. Edward Gander (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.
323 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.
§ Mr. GarnierOf 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.
§ Mr. Robert Maclennan (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 324 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.
§ The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook)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.
§ Mr. MaclennanI 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.
§ Mr. GarnierWhat 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.
§ Mr. MaclennanIf 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.
§ Mr. CorbynI 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. Are 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.
§ The Minister of State, Foreign and Commonwealth Office (Mr. John Battle)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. Gamier) 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.
§ Mr. BluntI 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.
327 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.