Motion made, and Question proposed, That this House do now adjourn.—(Mark Tami.)
I am pleased to have this opportunity to raise the subject of initiating private prosecutions. The purpose of my debate is to urge that the right of private individuals, including lawyers, to seek arrest warrants for those suspected of war crimes, including those who are resident abroad but who intend to travel to Britain for various reasons, should be retained. The position now is that if a warrant is agreed to by the court, no prosecution can commence without the assent of the Attorney-General, as my hon. and learned Friend the Solicitor-General knows so well. Presumably the Attorney-General would take into account the advice of the Director of Public Prosecutions, among a number of factors.
Senior Ministers have indicated that the right of private individuals to start a process to deal with alleged war crimes could change, hence the reason for this debate in the first place. As will be seen, I would be strongly opposed to any such change. It would also be fair to say that Ministers have come under a good deal of pressure from those on the Opposition Front Bench to change the existing law. The case of the former Israeli Foreign Minister has been put forward by Ministers and shadow Ministers as a reason why a change in the law on private prosecutions for alleged war crimes should be made. In December last year, Westminster magistrates court issued an arrest warrant for Tzipi Livni, the former Israeli Foreign Minister and currently the leader of the main opposition party in Israel. She cancelled her intended visit; hence the warrant was withdrawn.
In practice, it is the most senior district judges at Westminster magistrates court who hear applications where war crimes are alleged and it is they who have to decide them accordingly. I have mentioned Westminster magistrates court because, without any disrespect to any of the justices of the peace up and down the country, it would be wrong to come to the view that such matters are dealt with by magistrates in local courts in the usual way. Rather, it is decided in the main at Westminster magistrates court, where senior district judges hear applications accordingly. They have to decide whether the high threshold of evidence, liability and jurisdiction has been met. Moreover, they have to be satisfied that no immunity applies. Anyone currently holding ministerial office would not be subject to any such application, so if the person I have mentioned was the current Foreign Minister—or indeed any Minister—in the Israeli Government, the recent case would not have arisen.
It needs to be emphasised that there is no abuse of the procedure in this country. There is no question of arrest warrants being agreed to automatically. However, the impression given, albeit not by Ministers, is that it is relatively easy for someone who might have a grudge against a person coming to this country from abroad, who is alleged to have committed war crimes, to go to a magistrates court and, lo and behold, an arrest warrant is duly issued. That is not the case; indeed, in practice it could not be more different. Strong evidence is required.
I have spoken about those intending to come to this country from abroad, but where the suspect is already in Britain, which is the situation in many cases, it is important for the process to start as quickly as possible. If someone is here, illegally or otherwise, and there is a strong suspicion that that person has allegedly been involved in war crimes—this has nothing to do with their formerly holding ministerial office—the danger is that, if there is no private prosecution, that person will flee the country as soon as possible, knowing that they are likely to be arrested. It obviously takes time for the police and the prosecution authorities to gather the evidence if they decide to go ahead with a warrant, but there is a strong protection available to the victims of alleged war crimes in the sense that they can try, through indirect means, to bring about the issue of an arrest warrant for those allegedly responsible for those war crimes.
Under the 1949 Geneva conventions and protocols, British courts have universal jurisdiction over those who are alleged to have been involved, directly or indirectly, in war crimes. Those crimes can involve the extensive destruction and appropriation of property not justified by military necessity, and unlawfully, wantonly and wilfully attacking civilians.
The former Israeli Minister was in office at the time of the Israeli military action against Gaza, and allegations of the most serious nature have been made, because of the manner in which the Israeli action was conducted and the fact that the person in question held such a senior ministerial position. The operation that Israel conducted was known as Operation Cast Lead, and it has been the subject of a good deal of controversy. Indeed, I took part in a debate on these matters in the House last January in which, almost without exception, Members on both sides condemned the way in which Israel had conducted that military operation against Gaza.
It also needs to be said, in relation to the former Israeli Foreign Minister, that the Goldstone report—the result of a fact-finding mission authorised by the United Nations human rights commission—concluded that much of what Israel had done in the military operation in Gaza was disproportionate. The report said that some of the bombings and killings
“could not on any basis be justified on military grounds”,
and that Israel had employed a policy that involved
“the direct targeting and arbitrary killing of Palestinian civilians”.
So it is not surprising, given the allegations and the findings in the Goldstone report, that the judges in Westminster magistrates court decided to issue an arrest warrant.
I hope that the Government—and, for that matter, the Opposition—would hesitate a good deal before taking away the right of private individuals to seek to persuade the courts to issue an arrest warrant for war crimes. It would be unfortunate and retrogressive to do that. Moreover, I understand that primary legislation would be required to change the existing law. I am sure that the Solicitor-General will be able to comment on that. Do we want to send out a message that we do not take seriously the Geneva conventions and our courts’ jurisdiction over war crimes? Time and again, we in the House of Commons have rightly condemned war crimes, atrocities and the targeting of civilians, all of which are outlawed under international law. It seems strange that we should somehow change the law—I hope that will not be the position—because it has been embarrassing for a former Israeli Minister.
Another argument has been put forward, perhaps as the main reason, for changing the law: that it will undermine the peace process if it is not possible for the person I have mentioned to come to this country. If she came, of course, no prosecution could take place without the consent of the Attorney-General. However, I find it very difficult to accept that the peace process, of which there is not much evidence unfortunately, is largely dependent on a former Israeli Foreign Minister, currently leader of her party, coming to Britain.
I am pleased that my hon. Friend has secured the debate and that it has a reasonable time to run. However, does he accept that there is a problem in that the suggestion of changing the rules on universal jurisdiction arrest warrants moves the matter back into the political arena rather than away from it, which has been the general thrust of the Government legal strategy over the past few years, with the establishment of the Supreme Court and all that goes with it?
My hon. Friend makes a strong point. A Government should not intervene in such a way. As he knows, and as I have mentioned more than once, we should also bear in mind that whether a prosecution takes place depends on the Attorney-General. I hope that the Solicitor General’s response will satisfy me and the House that the law will remain as it is, but that it is in the overall interest of Britain, and of other countries, including Israel, not to take any action that could undermine our position in bringing, or trying to bring, to justice, those who might have been involved, directly or indirectly, in war crimes. That is an important matter, and I look forward to her reply.
I expected not to make a speech this afternoon, but simply an intervention. I often agree wholeheartedly with many things that my hon. Friend says in the House, and I anticipated doing so on this occasion, but I fear that that is not to be the case. It concerns me greatly that, at many points, his argument relied on the fact that, ultimately, even though an arrest warrant might have been issued, a prosecution would depend on the Attorney-General. That is a dishonest argument, because it suggests that there must be a strong case—I think “strong” was the word he used—with strong evidence, as well as jurisdiction, to secure the agreement of a magistrate to issue the arrest warrant in the first place. My understanding is that there must be a prima facie case.
My hon. Friend’s argument relies on a discrepancy between a prima facie case being heard by a magistrate and reliance on his confidence—or on the assertion that in the case under discussion one could have been confident—that no prosecution would be continued with. That is an intellectually dishonest argument, because it says that someone should be allowed to apply for a warrant on a prima facie case and to abuse the law simply to embarrass a political figure, without the serious intent of believing that a prosecution could follow. That one should continue to allow that, secure in the knowledge that a prosecution would not follow, is not a straightforward position and my hon. Friend is normally a very straightforward thinker on these matters.
I do not want to debate the issues with my hon. Friend because of the time, but the normal procedure is that the Speaker or the Deputy Speaker is asked whether a Member who wants to speak has my permission to intervene in an Adjournment debate. I do not object in any way but I hope that time is not being taken from the Minister.
I am grateful, Mr. Deputy Speaker, and that was my understanding in participating in the debate, which I believe can run until 6 pm, although I trust that it will not.
This is a difficult and sensitive issue and I agree with my hon. Friend that we should not do anything to stop war crimes being taken seriously and to stop prosecutions for war crimes being brought within this country. However, the serious issue is this: the law is there to be used, not abused. Unusually, in this case it has been abused, and that has allowed for the possibility of further abuses in the future. That could prejudice the proper workings of the Foreign Office and the Government in carrying out proper debates with those who are not subject to diplomatic immunity, as the member of the Israeli Government might have been on this occasion.
I am not quite following my hon. Friend’s argument. Clearly there must have been some evidence put before the district judge that Ms Livni would be subject to an arrest warrant on the grounds of human rights law; otherwise the district judge would not have given the arrest warrant. He or she must have examined the evidence and felt that there was enough. If it is good enough for a judge to grant an arrest warrant, surely it is up to us to look at a legal process rather than saying that this might upset diplomatic relations, therefore we must change the law.
I am grateful, Mr. Deputy Speaker.
There has to be a prima facie case presented to secure an arrest warrant. My hon. Friend the Member for Walsall, North made clear that he believed that there was a gap between the prima facie case being presented, which could secure the arrest warrant, and the security that the Attorney-General would not allow such a prosecution to proceed. It is that intellectual dishonesty that I seek to expose by my remarks.
It is important that we are able to secure prosecutions in this country in a timely fashion, as my hon. Friend the Member for Walsall, North said, for war criminals who happen to be in the country. My concern is the way in which this situation has created the possibility of further abuse in the future, which might interfere with the proper workings of Government in holding quite proper discussions with politicians not simply from Israel, but from many parts of the world; something it is important for the Government to be able to do.
I am sorry, because I should, of course, have recognised that more time is available to us. Is my hon. Friend saying that the law, as it stands, is okay—I have never heard him criticise it before—but it should not apply to former Ministers who are alleged to have been involved in actions of a kind that I have described? Or do I take it that his argument is that the whole process should be changed, so that no prosecution can be brought and no arrest warrant issued without the Attorney-General’s involvement? Is he in favour of that?
I am rapidly losing my affection for my hon. Friend, because I fear that he is trying to traduce my argument. What he describes is not the position that I have outlined. I do not wish to outline my position for a third time, but in response to the point he has just made I should say that I do not think any of us were aware of the possible abuse of the system until this case arose.
The abuse is precisely in the fact that this was done for publicity purposes, rather than because of any genuine belief that a prosecution had any chance of being successfully brought in this country. That is an abuse of the law, which is why it is important that the Government move to try to stop it. I believe that this is a difficult issue, and I fundamentally agree with my hon. Friend that it is important that cases involving violations of human rights, extra-judicial crimes and war crimes should be able to entertained within the UK jurisdiction. However, I do not believe that the law should be able to be abused as it was in this case.
I thank my hon. Friend the Member for Walsall, North (Mr. Winnick) for securing this debate, and for his perceptiveness in obtaining a debate on a Thursday and thus giving us an hour and a half to debate universal jurisdiction. Most of us were expecting a 30-minute debate.
The House will be aware that I have tabled early-day motion 502, which has been signed by 101 Members who support it. It expresses concern about the restriction of the universal jurisdiction of UK courts in matters of human rights law. The background to this case rests, as my hon. Friend explained, on a number of conventions, but more recently it has rested on the case of General Pinochet. He was in this country on an arms-buying spree in 1998 when an extradition warrant was sought by Spain. The then Home Secretary—he is now the Secretary of State for Justice—granted the extradition warrant and General Pinochet was duly arrested. He then sought diplomatic immunity as a former Head of State, but that was rejected by the British courts. The House of Lords, in its final judgment, asserted that the British courts had universal jurisdiction in matters of human rights law. It did so on the basis of an arrest warrant that was granted by a divisional court. That is an important step forward in international law.
Those who have read my early-day motion will note that it specifically does not mention any individual case—it does not mention the arrest warrant sought in the case of Tzipi Livni. It is an attempt to defend a very important principle: the right of British courts to arrest people where there is prima facie evidence that they have committed human rights abuses or violated the appropriate United Nations statutes to which this country is also signed up.
The furore about this matter has arisen—it was, doubtless, what provoked my hon. Friend into obtaining this debate—because a universal arrest warrant was sought in the case of Ms Livni. It was obtained in a divisional court on the basis that there was prima facie evidence that she was a party to crimes against humanity during Operation Cast Lead, when Israel bombed Gaza and 1,400 people died. I was in Gaza two weeks ago and witnessed, still, the remnants of that attack. The arguments for changing the law seem to be coming from friends of Ms Livni who say that to prevent her from coming to this country would damage relations between Britain and Israel. They say that the rights and powers of a court to issue an arrest warrant must therefore be removed and that those powers should be placed in the hands of the Attorney-General, who would decide whether to issue the warrant or not.
As I explained in my invention earlier, the trend of legislation has been to separate for all time, as far as possible, the authority of the courts from the interference of politicians. That is something to which we all agree. The Attorney-General is inevitably a politically appointed figure. Let us imagine that the Attorney-General had to consider whether to issue an arrest warrant in the case of Ms Livni and that somebody, or a group of people, put pressure on them to do so. They would be put under a huge amount of pressure, including arguments that it was a diplomatic problem, that the Government of Israel and the US objected to it, that various Arab countries agreed with it and so on. It would no longer be a decision based on prima facie evidence or on the law, but a decision based on the diplomatic niceties of the situation and the political pressures under which the Attorney-General was put. Would the same pressures apply if somebody applied for an arrest warrant on Robert Mugabe? I do not know. All I know is that it is quite important that we should base this on humanitarian law and that the arrest warrant should be awarded, or not, on the basis of evidence put before the judge.
My hon. Friend seems to be suggesting that the most important thing is that there should be an arrest. Surely we are all agreed that when there have been war crimes or violations of human rights, there should be a successful prosecution. To simply say that we must secure the arrest and that we do not want to get the Attorney-General involved at that stage is beside the point—in fact, it misses the point. Ultimately, it will be a matter for the Attorney-General and the Crown Prosecution Service whether that arrest leads to prosecution—
Order. The hon. Gentleman seems determined to miss the microphones. I know he is trying to be courteous to the hon. Friends with whom he is disputing points, but it is very important for the benefit of those who compile the Official Report that they should hear what is said.
It is a fairly obvious argument. There could not be a successful prosecution unless there had been an arrest in the first place. One needs a person to prosecute and the arrest warrant would provide that opportunity. That takes me back to the point: an arrest warrant can be issued only if there is prima facie evidence against an individual. The judge obviously thought that there was in this case. The then Home Secretary obviously thought that there was when he allowed the extradition request on General Pinochet in 1998. There are many other issues. My point is that if we sign up to UN conventions on torture and abductions and to conventions of any sort against humanitarian abuse and war crimes, is it a good idea to fetter our signing up to them by saying, “Oh, by the way, we will take the decision on political grounds because we do not want to upset friendly countries”?
We had the same debate when the Rome statute and the setting up of the International Criminal Court were discussed. We debated what would happen if the British military were accused under that statute of war crimes. The House took the position that we would support the Rome statute and sign up to the ICC. That was a good thing and I support that process. If we are to defeat human rights abuses around the world, we must be prepared to take the difficult decisions to prosecute the people who perpetrate these crimes.
My hon. Friend talks about an arrest being initiated by a private individual, but the arrest warrant in this case was sought and obtained by people acting on behalf of, or in sympathy with, those who suffered during Operation Cast Lead. If he is saying that there should be no option to go to court other than when a politically appointed Attorney-General, of whatever political party, decides that that would be a good idea, surely that is to negate the principle of universal jurisdiction. As I said earlier, that would reduce matters to the level of diplomatic considerations, rather than legal and humanitarian considerations.
My hon. Friend is seeking to paint the Attorney-General as a political figure but the individuals who initiated the arrest warrant as in some way non-political. That is clearly not the case, particularly in this instance. Again, it is intellectually dishonest to try to represent the one as simply a disinterested individual who wants to ensure that war crimes do not take place, and the other as a politically motivated individual.
The Attorney-General, one assumes, has a mature and responsible attitude to ensuring that war crimes are prosecuted where an effective prosecution can be gained. He would therefore be prone to initiate an arrest warrant to achieve that.
If my hon. Friend’s position is that the Attorney-General would automatically be minded to prosecute, then I am sure they would have no problem whatsoever with there being a universal arrest warrant that could be obtained from a district judge on the basis of prima facie evidence.
My hon. Friend seems to adopt the position that interested parties, be they relatives or sympathisers of a particular group of wronged citizens, have to be removed. However, if we are to deal with human rights abuses, surely we have to be prepared to ensure that the current situation, which I regard as a huge step forward from what existed previously, is maintained, and that we do not change the law in that respect.
When the Minister replies, I hope she will understand that there are many people—in organisations such as Human Rights Watch, Justice, Redress, the International Federation of Human Rights, Global Witness and others—who are very concerned about the political statements made immediately after the non-visit of Ms Livni to this country because of the arrest warrant that had been issued. They urge that Britain stand on the side of universal jurisdiction, and not disappear from it.
A letter signed by a number of people is being sent to the Prime Minister on this matter. It states:
“The UK must not renege on its international treaty obligations, particularly those under the Fourth Geneva Convention…to seek out and prosecute war criminals wherever and whoever they are, whatever their status, rank or influence, against whom good prima facie evidence has been laid.”
After the end of the second world war, many very brave people used whatever law was available to seek out and prosecute Nazi war criminals, in all kinds of jurisdictions all over the world—including this one. Many years later, as my hon. Friend will know because he was here, we eventually passed the International Criminal Court Act 2001, under which such people can be prosecuted.
I realise that my hon. Friend may have difficulties with the idea that a person of the stature and opinions of Tzipi Livni could be arrested for war crimes because of what happened in Operation Cast Lead, but that would be a matter for the courts to decide, if and when she were arraigned and a prosecution took place. However, he seems to be trying to put up a barrier that, as I said before, would allow a diplomatic intervention to prevent that happening.
If we are to be taken seriously on human rights law, we have to be prepared to prosecute people whether they come from countries that we consider to be friends, or from ones we do not. That is the principle at stake here. I hope that when the Minister replies, she will assure us that despite all the huffing and puffing of the past few weeks, she will recognise that 111 MPs from all parties signed my early-day motion, which is a significant number. The legal opinions that she, the Prime Minister, the Foreign Secretary and others have received are strong in this area, and I hope the Government will stand firm and say, “We signed up to all these international conventions. We accept the universal jurisdiction decision of the Law Lords in the case of Pinochet, from which some of this issue stems, and we are not going to change, just because it is inconvenient to some people at present.”
If we are to prevent people from being bombed and killed, and if we are to prevent unreasonable military actions that result in huge loss of life, surely we have to do so through a legal process of accepting and understanding international humanitarian and human rights law, rather than saying it is all a matter of political judgment at the end of the day. I hope the Minister can placate people who are concerned about this issue, and tell us that there will be no change in this particular law, and that no amendments and no new law will be rushed through the House. If there is an attempt to do so, it will be met with widespread opposition from Members of all parties on both sides of the House and, I suspect, in the House of Lords, too, because this is an issue of the utmost principle and the utmost importance.
I will not detain the House, but I think there is an opportunity to raise an issue within the terms of the debate. It relates to a different part of the world: the eastern region of the Democratic Republic of the Congo. A number of people from that country are members of the FDLR, which is a rebel organisation. They live in Europe, having left Rwanda or the DRC. Some of them live in Germany and others live in the UK. Under the existing legislation, and under the proposed Government amendments discussed by my hon. Friends, they could still be apprehended.
The question is a technical one. There is probably sufficient information to arrest some individuals who are resident in the UK, and the UN group of experts investigating the issue has been somewhat hampered by the failure of the UK and French Governments to give it certain information such as telephone numbers, which it could pass on so that those people can be arrested. I understand that that constraint has come about because of privacy laws in the UK.
This is not something on which my hon. and learned Friend the Minister will able to respond immediately, but she may be able to pass it on to the relevant Minister. I recently had a meeting about the issue in general with the Minister for Africa and the UN, Baroness Kinnock, in the other place, and she said she would look into it in due course. However, it should continue be raised in debates such as this, because it is not right just to debate it when it comes to matters African. These things have a way of disappearing from the agenda.
The Government have introduced amendments to cover people in the UK accused of war crimes and genocide. Because the legislation is going to be amended, facilitating the arrest of these people—[Interruption.] My hon. Friend the Member for Walsall, North (Mr. Winnick) is referring to something different. The legislation to which I am referring will enable those people to be arrested in the UK and, I suspect, in the meantime, they can flee overseas. They may stay in other parts of Europe, which takes us back to the need for co-operation between European Governments and for providing things such as telephone numbers to allow the UN group of experts to conduct investigations and provide information to the Governments, notably in Germany and the UK, so that those people can be arrested. I simply wanted to raise that matter: perhaps my hon. and learned Friend can pass it on to the relevant Ministers.
I congratulate my hon. Friend the Member for Walsall, North (Mr. Winnick) on obtaining this debate on an issue that has attracted significant attention in recent weeks, and has done so, too, today. I am grateful—and I am sure that he is—for the contributions of my hon. Friends the Members for Brent, North (Barry Gardiner) and for Islington, North (Jeremy Corbyn) on this topic. I admire the way in which my hon. Friend the Member for Falkirk (Mr. Joyce) has taken the opportunity to raise an issue that is close to his heart. If he is not going straight to Falkirk after the debate, and can tell me a little more about the issue, I am happy to do what I can to help him.
My hon. Friends the Members for Falkirk and for Walsall, North were speaking at cross-purposes a moment ago. My hon. Friend the Member for Walsall, North does not want any change in the law, but the change in the law that my hon. Friend the Member for Falkirk was talking about was one, I think, of which my hon. Friend the Member for Walsall, North would approve. We have broadened—I say this in very general terms, not wishing to be specific at all—our ability to prosecute people who appear to be guilty of war crimes and genocide and who are living in this country. That, I think, is where my two hon. Friends got off on the wrong foot with each other.
The criminal law in England and Wales is primarily territorial. That is to say, it applies to acts committed by people of any nationality who are in England and Wales, not ordinarily extending to offences committed outside its borders, even when committed by British citizens. There are exceptions, which are drawn case by case by Parliament. Some such offences cover British nationals outside England and Wales—for instance, in the case of murder. Some such offences extend to UK residents outside the UK—for example, some sex offences, and war crimes, genocide and crimes against humanity in the International Criminal Court Act 2001.
Exceptionally, some offences go further and apply to persons whatever their nationality and wherever the act was committed—for example, grave breaches of the Geneva Conventions Act 1957, torture, and the taking of hostages. As a general principle, that exceptional jurisdiction is the result of international treaty obligations. This is universal jurisdiction. It is a vital part of our law, to which we are 100 per cent. committed.
It is an unusual, though not unique, feature of the criminal law of England and Wales that a private individual may initiate criminal proceedings. That can be done by applying to a magistrate for a summons, which summonses the person to come to court, or by an arrest warrant, which issues forth to arrest and imprison, at least momentarily, the individual in question. The evidence required before a judge is required to issue such process—a summons or an arrest warrant—is very, very limited. The evidence required before a judge is required at law to issue such process is little more than some prima facie evidence that an offence known to the law has been committed by the person named—not a prima facie case, some prima facie evidence.
Moving on into this process, there is a possible anomaly at present. A warrant for arrest, which is obviously a more draconian process than a summons, can be issued solely on the basis of that level of evidence. As a generality in the case of very serious offences, including war crimes—those that attract universal jurisdiction—the Attorney- General’s consent to a prosecution is required. That is as a generality. Without the consent of the Attorney-General, nobody can be required to answer such an allegation. Without the Attorney-General’s consent, a summons cannot be issued on the application of a private individual. However, in the case of a request for an arrest warrant, perhaps oddly, but because of a provision in the Prosecution of Offences Act 1985, there is no requirement for the Attorney-General’s consent to be given until later in the process.
Let me be clear. The Attorney-General’s consent is required to prosecute a war crime, torture or any other similar grave breach, and no prosecution can proceed far without her consent. But whereas consent is a prerequisite for the issue of a summons, it is not a prerequisite for the issue of an arrest warrant. That consent can come after the issue of an arrest warrant.
The net result is that a private individual in the UK can secure the arrest of a non-resident foreign visitor to this country—or of a British person, for that matter, but that is not the topic of this debate—on the basis of prima facie evidence only, which may subsequently prove insufficient to gain the Attorney-General’s consent, insufficient for any prosecution to go forward, and insufficient to be taken any further at all by an investigation by the police or the prosecution authorities, let alone insufficient to bring a conviction.
Although I admire immensely the power with which my hon. Friend the Member for Islington, North argues his case, I am aware of no situation in the UK whereby the Attorney-General decides on the issue of proceedings. As I have set out, she can consent to an application and the Director of Public Prosecutions usually brings an application, but its release—the judicial part of it—is always done by a judge. That could not be changed; the separation of the powers is quite clear.
Whatever happens in the issue of process stage, the Attorney-General’s consent is needed immediately afterwards. The private prosecution jurisdiction that my hon. Friend is troubled by has nothing to do with the Pinochet case, which was not a private prosecution. The process was issued over here from the Spanish court, and it then became complicated, as my hon. Friend has described, but if the right to a private prosecution were totally taken away, and no one suggests that it should be, the Pinochet event would still happen. The private prosecution is not the foundation of the law upon which we all rely and intend to cleave—namely the law of universal jurisdiction—either. Although some elements arose, the law has moved on extremely strongly to protect more people and to give more universal jurisdiction in the intervening years.
Will my hon. and learned Friend confirm that in the Pinochet case, the then Home Secretary granted an extradition warrant, and that Pinochet was therefore detained and, subsequently, there was a legal process? However, the then Attorney-General declined to mount a UK prosecution against Pinochet, and he relied solely on the Spanish and, indeed, Belgian applications for extradition. Thus, the then Attorney-General made a political decision not to prosecute Pinochet within the UK’s jurisdiction. There was a reliance on the Spanish prosecution.
Truly, I do not know. I cannot remember whether that is right or wrong, but it is a dangerous mistake to call a decision taken by the Attorney-General a “political decision”, because the Attorney-General is obliged to look after the interests of the public and, indeed, the rule of law. When taking procedural decisions in connection with proceedings, they are not acting in any way as a politician; they are obliged to separate all those interests. Having said that—firmly, strongly and clearly, I hope—I do not remember whether the then Attorney-General decided that there should not be a prosecution, whether the matter never arose or whether there was a conflict of jurisdiction and there could not be any prosecution. I could not tell my hon. Friend.
Section 6(2) of the 1985 Act permits the Director of Public Prosecutions to take over any case that has been commenced by a private prosecution. There are conditions, set out on the Crown Prosecution Service website, under which the DPP will take over such a private prosecution, and the DPP may then pursue the case. However, if the full code test within the CPS code cannot be made out, because either the evidence to suggest a 51 per cent. chance of conviction does not exist, or there is insufficient public interest in it, although I imagine that the second would be a rare occurrence in such a case, the DPP may discontinue a case. Thus the power to issue a warrant on prima facie evidence may not necessarily result in the matter being taken very far.
However, the DPP may equally take over and take forward a prosecution, and that would involve a police investigation. The police would investigate and, in due course, seize what opportunity they had to make an arrest, if an arrest became appropriate. A prosecution could therefore follow—again, assuming that the test in the code for Crown prosecutors were made out.
In terms of the processes that I have described, it may become plainer and plainer that if a UK citizen has evidence of war crimes or of another crime that commands universal jurisdiction, the right course to pursue is to take this information to the police so that they can investigate it under the supervision of, or in partnership with, the CPS. There is a specialist unit in the Metropolitan police to deal with those cases. It may become reasonably clear that very little will be lost in doing that instead of seeking to exercise a right to obtain a summons or an arrest warrant, which could have a very short-lived effect and could cause difficulties of another kind to which I shall turn in a moment. Of course, the difference between reporting a matter to the police and leaving it to them to investigate and take further and issuing private process is the private arrest. It may be that some separate purpose is served by that in itself.
The UK has a duty under the Geneva conventions—the torture conventions and other conventions—to do as my hon. Friend the Member for Islington, North said: to seek out in order to extradite or to prosecute within our own jurisdiction people who are suspected of the grave crimes in question under those conventions. It is very important to make it totally clear that we as a Government are determined to do our duty in fulfilling our obligations under that law, as we did, for instance, in the case of the Afghan warlord, Zardad, who was successfully prosecuted for torture offences here in the UK in 2005. We are absolutely committed to upholding these conventions and to upholding the principles of universal jurisdiction. There can be no impunity for these most grievous of crimes.
There can be a potential impact on our international relations if attempts are made by a private person to arrest one of a foreign state’s senior politicians during a visit to the UK. There has been discussion about a particular case. We need to be engaged in the middle east, as in other conflicts and post-conflict situations, if we are to carry out our international role as a member of the UN Security Council and negotiate in the interests of our own security. There are inevitably two sides to a conflict, and we need to engage with those who have been, and are, involved in a conflict if we are to be able to try to bring such a conflict to an end or to ease it. It would not be helpful if the use of such a power of application by a private citizen for a warrant for arrest made a person reluctant to visit the UK, notwithstanding that they may have a leadership role within their country and that we need to talk to them about such a matter.
Before I finish, I want to make two other points. First, I emphasise that nothing that has been said here is at all to undermine the independence of the judiciary, who will consider each and every case of every kind and of every nature, whether privately or publicly brought, on its merits. Secondly, although the issue that brought on this debate concerned an Israeli citizen, the position and the tensions can be equally present with other countries’ nationals.
I hope that my hon. and learned Friend recognises that I emphasised more than once that the Attorney-General must be involved in the prosecution. I made that clear, and she has confirmed it. However, she just said that the same situation may apply with regard to other countries. Clearly, this is not about Israel as such; no one could accuse me of having some sort of anti-Israeli vendetta, however much I disagree with many aspects of Israeli policy, needless to say. Is it not the case that if there is to be any change, primary legislation will be required? I would be grateful if she could confirm that. It goes without saying that I would be opposed to changes of the sort that she has described.
I think that I am right in confirming that primary legislation would be required.
My point was not a suggestion that my hon. Friend had a particular view about the middle east situation, but that the position of an Israeli citizen brought about the debate in this Chamber. None the less, it is important to say that the position that that situation puts us in, and its accompanying tensions, can exist in relation to other country’s nationals, and it stands separate from the position of the UK on any particular political issue.
I am glad that we have had the opportunity to discuss the matter and that I have had the chance to set out the current position in the law.
All I can say is that I do not believe any change could be brought about if it were the Government’s will to make a change without primary legislation.
I am glad to have had the opportunity to set out the current position, and the issues to which it gives rise, and I congratulate my hon. Friend the Member for Walsall, North on obtaining this highly contemporary debate.
Question put and agreed to.