INTERNATIONAL HUMANITARIAN LAW (Hansard, 27 September 1976)

§ Lord BROCKWAY
My Lords, I beg leave to ask the second Question 14 which stands in my name on the Order Paper.

§ Lord GORONWY-ROBERTS
My Lords, the vote on this particular amendment, which was introduced while Committee 1 of the Conference was in session, was cast on the basis of the delegation's understanding of the attitude taken by Government Departments concerned to the legal issues involved. An explanation of vote, a copy of which I have now placed in the Library, makes clear that the delegation was concerned about the vague drafting of a principle which might ultimately have to be carried into United Kingdom law.

§ Lord BROCKWAY
My Lords, somewhat reassured by that Answer, may I ask this? Is it not a fact that this Amendment was carried by 37 votes to 2; that Japan was the only Government which voted with us on this matter; and that our Western Allies were absolutely stunned that the British delegation should have voted against this humanitarian proposal? Will the Government seize the opportunity, in April 1977, when an amendment in the same sense, to delete Article 67(2) dealing with the application of the Convention is discussed, to put the matter right?

§ Lord GORONWY-ROBERTS
My Lords, it is a fact that 37 Governments represented on this Committee voted in favour of that draft and that 11 were opposed, two of which saw fit to vote against and nine others to abstain. It is, after all, a very important principle as well as a question of practicality in implementation that drafting is properly carried out at the right stage. We failed during the Committee to get the draft we needed. We still feel that the humanitarian purport of this amendment, which we fully understood, is not well served by 15 the draft which the great majority felt that they could accept; and we shall continue between now and the plenary meeting next year to amend that draft. For instance, what is meant by "a mother"? Is it the natural mother only or a guardian? Shall we be restricting the humanitarian effect of this amendment if we do not define more precisely the categories who are to be protected? Similarly, what is a "young child"? We need to define that. I hope that I have said enough to my noble friend, whose concern about these matters equals my own, to make it clear that the British delegation, as always, was concerned with two things: to achieve the humanitarian objective of the amendment but also to get the proper drafting so that when possibly our own Parliament needed to legislate it could do so on firm grounds of definition.
My noble friend also asked about what we intend to do at the plenary meeting. I am glad to assure him that having made our point, although we shall persist on this question of drafting, which is very important in this field, hoping to get Protocol 2 properly drafted so that whatever internal legislation we pass can be implemented properly, we shall not oppose the draft if there is still a majority in favour of it among the members of the Committee. I am bound to tell him that it is my duty to ensure that the right kind of drafting is achieved.

§ Baroness ELLES
My Lords, can the Minister explain what he said about changing legislation in this country? Surely the United Kingdom have a record better than any country in the world for not having the death penalty in on any ground, regardless of whether or not a mother has a child. Surely it is not a question of drafting legislation in this country. Can the Minister say to what extent this refusal to support the amendment reflects the thinking of the Home Office on this issue?—and, presumably, that is the Department responsible. Thirdly, can the Minister say why, if they were afraid of the drafting, the delegation could not have abstained on the voting and not voted against? There are ways of dealing with these matters without being one of the two countries to vote against an important amendment reflecting humanitarian laws throughout the world.

§ Lord GORONWY-ROBERTS
My Lords, on the last point, it is a question of judgment on the spot when an amendment is moved without much notice. It is a matter of how strongly a country and its delegation feel about the importance of the drafting rather than the principle of the amendment. On the point of departmental concern, as the noble Baroness knows, more than one department would be concerned with a matter which involves not only internal legislation (as certainly this would) but also international agreement. On the third point, the question of the inclusion of the drafting in our own law, we would need in an international instrument of agreement to ensure that the drafting was such that, if there were consequential legislation in our own country, it would be as firm and secure as possible.