'The new Bill is not quite the guarantee of safe passage that Israelis with military backgrounds were hoping for'
Picture the scene in the House of Commons. MPs are debating a bill intended to reduce the chances that Israeli politicians visiting London will be arrested (though not tried) on war crimes charges. If the bill becomes law, a private prosecutor will no longer be able to obtain an arrest warrant for a crime of universal jurisdiction-one that can be tried by the English courts although committed abroad-without the consent of the Director of Public Prosecutions (DPP).
The reform is opposed by a number of backbench Labour MPs, led by Ann Clwyd. While addressing the Commons on March 30, another MP seeks to intervene. Louise Ellman is Jewish and a supporter of Israel. As she gets to her feet, a third Labour MP barks out something in a stage whisper that is presumably intended to throw her.
“Here we are: the Jews again,” this MP growls. It turns out to be Sir Gerald Kaufman, 80, a bitter opponent of Israeli government policies and, by his own account, a victim of anti-Semitism at the last general election.
Kaufman’s remarks, made while he is seated, are not reported in Hansard. But they are clearly audible on the online archive recording. As if to explain his comments, he adds something like “we’re going to get anti-Semitism again”.
Is he accusing Jews who support Israel of provoking anti-Semitism? Or is it sufficient merely to stand for parliament against a Muslim opponent?
Ellman manages to get through her intervention without showing her feelings but there is a complaint from Matthew Offord, the Tory MP for Hendon, about Kaufman’s unparliamentary language, which the Deputy Speaker professes not to have heard. In a statement released later by the Labour Party, Kaufman says: “I regret if any remarks I made in the chamber caused offence. If they did, I apologise.”
Clwyd’s attempt to have clause 152 removed from the Police Reform and Social Responsibility Bill is defeated by 37 votes to 480. The Commons then votes on a last-minute Labour front-bench amendment. This would have required the prosecutors and police to set up specialist units “so as to ensure minimal delay in decisions relating to arrest warrants”.
Although the amendment is laughably vague (what is “minimal delay”?) the Jewish Leadership Council, a lobbying group, issues a private briefing to MPs expressing concern that a requirement to act quickly would make unjustified arrests more likely. But the government insists that prosecutors can move quickly when necessary and ensures that Labour’s amendment is comfortably defeated.
According to the Justice Secretary, Ken Clarke, “the reason for making this change is that at present a warrant can be issued where there is no realistic prospect of a viable prosecution.”
Clarke said this on March 29 in answer to a Commons question from the Labour MP Yasmin Qureshi, who seemed to have only the vaguest idea of what she was asking about. Why, she wanted to know, was the government considering abolishing the “ancient principle” of universal jurisdiction? The answer, of course, is that the principle is not ancient and is not being abolished. The idea that foreigners might be prosecuted in the UK for grave offences committed abroad did not gain acceptance until after the Second World War. And it will remain part of our law.
But, as Clarke said, “the fact that warrants can be comparatively easily sought and occasionally obtained is deterring people from coming to the UK who are politically controversial but probably not guilty of any war crime or crime against humanity”.
So there seems little doubt that the government will push the reform through the House of Lords and on to the statute book. But will it work?
Keir Starmer, the DPP, told MPs in January that he would issue guidelines explaining when he would consent to an arrest. As with decisions to prosecute, sufficient evidence would be needed and the prosecution would have to be in the public interest. Anyone dissatisfied with the DPP’s decision in an individual case would be able to challenge it in the courts.
If an arrest decision had to be made within a few hours-presumably because a suspect was about to leave the country-the DPP would make do with what he calls the “threshold test”, consenting to the arrest if he were satisfied that enough evidence would become available within a reasonable period of time.
Ministers are confident that the DPP would not regard it as being in the public interest to prosecute someone like Tzipi Livni, the Israeli opposition leader. But that’s not quite the guarantee of safe passage that Israelis with military backgrounds were hoping for. I really can’t see why Ann Clwyd is so worried.
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