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International Criminal Court Bill Hl

Volume 622: debated on Monday 12 February 2001

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5.17 p.m.

House again in Committee.

Schedule 2 [ Delivery up of persons subject to criminal proceedings, &c.]

moved Amendment No. 75:

Page 43, line 35, at end insert ("and shall advise the Scottish Ministers of the result of such consultation.
(4) The Scottish Ministers may direct that the criminal proceedings shall be discontinued.
(5) Where the Scottish Ministers direct that the criminal proceedings shall be discontinued, the court before which the proceedings are pending, or in progress, shall?
  • (a) order their discontinuance, and
  • (b) make any other order necessary to enable the delivery order to be executed (including any necessary order as to the custody of the person concerned).
  • (6) The discontinuance of criminal proceedings under this paragraph in respect of an offence does not prevent the institution of fresh proceedings in respect of the offence.").

    The noble Lord said: We turn from the rather wider issues of the previous discussion to some detailed amendments concerning the Scottish jurisdiction.

    Amendment No. 75 ensures that the same provisions in relation to the discontinuance of criminal proceedings in a domestic court apply in Scotland as in England and Wales. As currently drafted, the provisions in relation to criminal proceedings in Scotland make no reference to the fact that Scottish Ministers may direct the discontinuance of proceedings which are pending or in progress.

    Amendment No. 76 ensures that the same provisions in relation to the discontinuance of extradition proceedings in a domestic court apply in Scotland as in England and Wales. Amendment No. 77 has the same effect in relation to the discontinuance of delivery proceedings in a domestic court and ensures that they apply in Scotland in the same way as in England or Wales. The reasoning behind the amendments is similar. I beg to move.

    I am grateful to the noble Lord, Lord Howell, for his explanation. It is not a necessary amendment for the following reason. In England and Wales there are a number of possible prosecuting authorities and therefore one needs to specify that the Secretary of State may direct discontinuance. In Scotland it is only the Lord Advocate or the procurator fiscal acting in his name who may prosecute. If there were a requirement to discontinue, the Lord Advocate would direct the procurator fiscal to desert the proceedings, prolocoet tempore, in accordance with the well established Scottish tradition. That is, therefore, the reason for the omission; not oversight.

    I am grateful to the noble and learned Lord. In the light of his view that the amendment is not necessary to meet the problem, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 76 and 77 not moved.]

    Schedule 2 agreed to.

    Clause 25 agreed to.

    Clause 26 [ Meaning of "appropriate judicial officer" and "competent court"]:

    [ Amendments Nos. 78 and 79 not moved.]

    moved Amendment No. 80:

    Page 14, line 16, leave out ("the Sheriff of Lothian and Borders")") and insert ("in Scotland, a sheriff").

    The noble Lord said: The amendment ensures that all sheriffs in Scotland, and not only those sitting in the sheriffdom of Lothian and Borders, can act as an appropriate judicial officer under the Bill.

    We agree that the appropriate judicial officer in the Scottish context should be the sheriff and the competent court the sheriff's court. However, we can see no justification for restricting this function to sheriffs sitting in Lothian and Borders. Sheriffs all over Scotland have experience of endorsing warrants from foreign jurisdictions and implementing similar provisions in other statutes. It would seem appropriate to amend the section to enable all sheriffs to act as appropriate judicial officers.

    As currently drafted, the Bill makes no distinction as to who would be regarded as an appropriate judicial officer in England and Wales. The amendment seeks to clarify the definition of the term as it relates to Scotland. I beg to move.

    Perhaps I may again trouble the noble and learned Lord the Attorney-General about the constitutional position regarding Scotland. The amendment touches on Scotland.

    On 15th January at Second Reading the noble Baroness, Lady Scotland, told us that,
    "the Scottish Parliament will be considering the ICC Bill in parallel. But certain provisions of our Bill also apply to devolved matters. The consent of the Scottish Parliament to these matters is being sought by the Scottish Executive".—[Official Report, 15/1/01; col. 928.]
    It will be argued that in practice it is more than 99 per cent certain that the Scottish Parliament will do what is recommended to it. However, in constitutional law it is not obliged to do so. It can say, "No, we shall have nothing to do with this. We shall not play ball. We don't like the Bill for one reason or another and we refuse to pass either a parallel Bill or to deal with the ancillary provisions referred to by the noble Baroness, Lady Scotland, on 15th January". What happens in those circumstances? Does it render the Bill inoperable? How does it affect the United Kingdom's international treaty obligations? This is a possible, unintended consequence of devolution. The Scottish Parliament can do what it likes, but this could adversely affect the United Kingdom as a whole.

    I am not sure that the latter question arises from the amendment. However, I repeat what my noble friend said. Discussions have been continuing. There seems to be no difficulty about the view of the Scottish Parliament in introducing parallel legislation.

    On Amendment No. 80—I appreciate that Amendments Nos. 78 and 79 were not moved—the reason we have this designation in Scotland is the same underlying reason as in England and Wales. First, it was the model in the Extradition Act 1989. In that Act the competent court in Scotland is described as the Sheriff of Lothian and Borders.

    More fundamentally, not simply that we have always done it this way, there will be a small number of cases. We think that there is virtue, as there has been with the former chief stipendiary in Bow Street, in having whatever expertise can be collected within a single court. That is the only reason for having the provision.

    Before the noble and learned Lord sits down, perhaps he will answer this question. It goes back to what the noble Lord, Lord Monson, said. If the Scots want to pass this Bill—the noble and learned Lord says they do—why should they not say who is the appropriate officer in Scotland. The noble and learned Lord says, "They will, won't they?" That may be true. They probably will. He is very often right. But now that we have got ourselves into this delicious devolutionary muddle, it is surely up to the Scots in passing the Act of Parliament to state who should undertake this task, not for us to do so.

    The noble and learned Lord has twice sloughed off the question of the noble Lord, Lord Monson. Can he please give a well thought out answer to that question? It is a serious question.

    The noble Earl asks a different question. The answer to the question of the noble Lord, Lord Monson, has been given previously by my noble friend. It remains the same. My understanding is that it is for this Parliament in this legislation to nominate the sheriff of Lothian and Borders within the Scottish jurisdiction. If I am wrong about that—I undertake to check it with some care; it is a distinct point on the amendment—I shall write to the noble Earl. Subject to my own further inquires which I shall make as soon as possible, I understand that our Scottish colleagues have already agreed that that should be the appropriate judicial officer. However, I shall check that. Whether I am right or wrong, I shall write to the noble Earl and put a copy in the Library.

    Does the Minister agree that the Scottish Parliament has the right not to pass a parallel Bill if for any reason it decides that it does not want to do so?

    That was implicit in the earlier answers which my colleague and I gave.

    I thank the noble and learned Lord the Attorney-General for his response. I understand the reason underlying the limitation of the definition of "appropriate judicial officer" to the sheriff of Lothian and Borders. Expertise has been built up in that court in relation to extradition matters. It seems perfectly logical that that expertise should be applied to any matter which arises under this Bill, which may become an Act.

    If that is so, should not the same proposition apply with regard to English courts? I do not understand why a parallel conclusion should not have been reached in relation to the courts of England and Wales.

    It may be recalled that I dealt with this point on an earlier occasion by saying that it would either be the chief magistrate—whom the noble Lord, Lord Kingsland and I still remember as the chief metropolitan stipendiary—or, as I then indicated, district judges as designated by the Lord Chancellor, so they are likely to be few in number. If necessary that would be available in the larger jurisdiction. It is very unlikely that we would need more than the one court in Scotland.

    I am most grateful to the noble and learned Lord the Attorney-General for clarifying that matter. In those circumstances, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 81 not moved.]

    Clause 26 agreed to.

    moved Amendment No. 82:

    After Clause 26, insert the following new clause


    (". Nothing in the ICC Statute shall affect the responsibility of the Government to maintain or re-establish law and order in the State, or to defend the unity and territorial integrity of the State. by all legitimate means at its disposal.").

    The noble Lord said: The purpose of the new clause after Clause 26 is to focus our minds on the issue of civil disorder and the means that the Government may have to use to quell civil disorder or place the country in a state of emergency. It will be important—the amendment is intended to achieve this—to ensure that the United Kingdom remains sovereign and free from any restraint or interference from the International Criminal Court. The amendment refers to "all legitimate means". That may mean—we have to accept it in a difficult world—in the United Kingdom of Great Britain and Northern Ireland the use of force. It is important to ensure that the ICC could not begin an investigation, raise charges or issue warrants to prosecute service personnel who had been engaged in those activities. That issue could be raised by the present wording of the Bill. We have tabled the amendment to avoid any doubt and to ensure that the internal problems of this nation are the preserve of the state.

    We have rightly been reminded several times that the jurisdiction is not retrospective, but we can proceed only on examples of what has happened to try to understand how the legislation will work. The current inquiry into the events of Bloody Sunday in 1972 in Northern Ireland is revealing various new facts and aspects. It could conclude that no further action is justified and that all the truth, rumours and legends have come out. Our Government would then decide that that was the end of the matter. Could the International Criminal Court then step in on such a matter of civil order and pursue the investigations on the grounds that they had not been dealt with thoroughly enough? The amendment would ensure that should another such event occur—we pray to God that it does not—and should the animosities, miseries and hatreds of that event be perpetuated, the Government would be within their rights in maintaining and establishing law and order throughout the United Kingdom. I beg to move.

    5.30 p.m.

    Again, I am grateful to the noble Lord for indicating the nature of his concern. I hope that I can reassure him. Article 8.3, which is on page 11 of my copy of the statute, says:

    "Nothing in paragraphs 2(c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means".
    I am happy to give that reassurance.

    The noble and learned Lord says that he is happy with the reassurance, but I do not suppose, by any chance, that he is telling me that he is happy with the amendment. Presumably he believes that it is not necessary.

    There is a general point to be made, almost in passing. Certain things can be interpreted from reading the statute. Our purpose is to put them on to the statute book of the United Kingdom. My argument is that the more clarity and reassurance we put into our legislation, the less we might be left arguing later about what the statute really meant and why the provision was not in our legislation. However, I accept the Attorney-General's reassurance that the issue is dealt with in the statute. When we deal with such matters in future, we shall have to remember that this exchange has taken place and that what is in the statute is intended to be relevant to our law. In the light of that, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clauses 27 and 28 agreed to.

    Schedule 3 [ Rights of persons during investigation: article 55]:

    moved Amendment No. 83:

    Page 48, line 11, at end insert—
    (". Any waiver of rights under paragraph 2 above shall be documented in writing by that person and witnessed by an independent person.").

    The noble Lord said: All the amendments in this group are concerned with one important issue—that the Act shall ensure that all the rights, protections and privileges that would be afforded by English law shall be afforded to persons from this country delivered up to the ICC. They should receive the same protection as they would if they were on trial in England or Wales.

    Amendment No. 83 concentrates on the specific right of additional protection for all those involved in the investigation process by ensuring that a waiver of the person's rights to have counsel present would not be effective unless granted in writing and properly witnessed. That point was put forward by the Law Society of Scotland.

    The other amendments raise broader questions. Our aim in Amendment No. 85 is to ensure that the rights of persons during an investigation are preserved as they would be if they were being tried in a domestic court in the United Kingdom. I accept that there is a difficulty. We are dealing with an ambience of international justice. The International Criminal Court is an international body and it will have its own procedures. The notion that it can provide for citizens of individual states the protection that their national law would give them on a criminal charge may be regarded as idealistic, but it is a worthy ideal that we should pursue as effectively as we can.

    As has been said in earlier debates, this is the problem that has caused the United States Federal Government and Congress such enormous difficulty. It is one of the chief reasons why, although the United States has signed, it does not intend to ratify the ICC project without substantial amendment. The US Federal Government do not have the power to take away from their citizens the constitutional right to a fair trial. That is one reason why the amendment would be of benefit.

    One of the overall aims of the project is to bring the United States along. Those who founded the project and have worked so hard on it over the years—some of whom are sitting in your Lordships' House at the moment—must recognise that if the court cannot bring the United States on board, its credibility will be severely affected. Conversely, if the United States can be persuaded to take a constructive role in the assembly and to work for the necessary further changes—and even to wait the seven years until the statute may be formally amended—the project will be much further forward. The amendment would serve the higher purpose of making the project a success.

    I should be glad if the noble and learned Lord could define what is being imposed on the English citizen and what rights are not underpinned by the Bill in its present form. That needs to be clarified. The amendment would at least address the United States' problem. It would enable any future Secretary of State faced with an ICC request relating to a US citizen to ensure that that person would at least have their basic US rights guaranteed before they were handed over to the International Criminal Court. That might make a difference, although it will be very uphill work with the United States whatever we do.

    The same point is made in Amendment No. 86. A person subject to ICC proceedings should have no fewer rights than those that would be available to him or her in his or her home state. Those rights can be established by expert evidence. We attach specific importance to the possibility of an American being detained under an ICC warrant while in the United Kingdom. That is perfectly possible.

    That provides enough detail to establish our reasons for tabling the amendments. I beg to move.

    I believe that I can demonstrate that the safeguards which troubled the noble Lord are provided satisfactorily either in the statute or in the Rules of Procedure and Evidence.

    Schedule 3 to the Bill reproduces Article 55 of the Rome Statute. That article sets out in detail the rights of persons during investigations. The persons concerned cannot be questioned until they have been informed of their rights under Article 55 and have consented to interview. Such consent must be either in writing or, if given orally, recorded in writing. Therefore, the element of consent to interview is important.

    As I said, the written waiver requirement is provided for in the Rules of Procedure and Evidence of the ICC—in Rule 112(b). Those rules are in final form, subject to adoption by the first Assembly of States parties. I have no doubt that the consent provisions in the Bill and in the rules of procedure give full safeguards to a person being interviewed—not least, for example, the right to counsel.

    With regard to Amendments Nos. 84 and 85, I believe that the rights are fully provided for. The right relating to, for example, the presumption of innocence is found in Article 66 of the statute. The right not to be tried twice for the same offence is in Article 20. The right to a trial in public is in Article 67, as are the rights to cross-examine witnesses, to representation by counsel of the person's choosing without payment, and—I must be careful about this—to remain silent without the drawing of adverse inferences from such silence. Therefore, I do not believe that it could be said that any fewer rights would be provided than those which apply in domestic tribunals here.

    I have mentioned before but believe that it may be convenient to refer again to the right to assistance, free of cost, of a competent interpreter and translation in any of the proceedings. English will be one of the two working languages of the ICC. Having signed up to the statute, I do not believe that we should try unilaterally to impose obligations on the ICC and to impose conditions on co-operation.

    Perhaps I may turn to Amendment No. 86. Clause 29(4) goes no further than existing domestic legislation, which allows us to assist other countries in requests for evidence. It reflects the provisions of Schedule 1 to the Criminal Justice (International Co-operation) Act 1990, which does not distinguish between persons on nationality alone. This amendment would have the effect of giving our courts lesser powers for obtaining evidence than they have in relation to domestic cases before them. Therefore, it would mean that in some cases a duality of approach would arise.

    If one traces the matter through—I agree that one must trace it quite carefully through the statute and the Rules of Procedure and Evidence—I do not believe that the concerns expressed by the noble Lord are well founded. I do not believe that any disadvantage arises.

    I am not sure whether the noble Lord wanted to speak to Amendment No. 87, which was originally placed in this group. There are so many in the same grouping. Amendment No. 87 relates to costs. I do not know whether the noble Lord wishes to speak to it in this grouping or later.

    I thank the noble and learned Lord. I overlooked that final amendment. In a sense, it relates to a specific right. The amendment is put forward in the belief that there is no justification for precluding a costs order in favour of a person ordered to produce under the section. That is the belief behind the amendment.

    It may be helpful if I respond to Amendment No. 87 at this stage. Again, subsection (6) is based on Schedule 1 to the Act to which I referred earlier, the Criminal Justice (International Co-operation) Act. We do not believe that the amendment is necessary. It would increase the likelihood of the domestic taxpayer meeting the costs of these cases.

    If an order for costs were to be made, one of the parties would be the government acting on behalf of the ICC. We could not then pass on the costs to the ICC because Article 100 of the statute provides that the costs of the execution of requests in the territory of the requested state shall be met by that state, apart from a few exceptions which do not involve this type of assistance. Therefore, any costs would have to be met by our public purse. We do not consider the amendment to be necessary.

    5.45 p.m.

    Perhaps I may ask the noble and learned Lord a question relating to a matter touched on by my noble friend on the Front Bench. It may save time if I refer to it now rather than during the debate on whether the schedule shall stand part. It is the question of retrospection. As my noble friend referred to the provision not being retrospective, can the Minister comment on that? Can he also give us an absolutely copper-bottomed assurance—in so far as a Minister's assurance on such a matter can hold water—that the Bill definitely would not he retrospective?

    I say that because I was puzzled by an issue which arose in the recent case relating to Senator Pinochet. I checked in Hansard and found that when the torture convention was introduced in, I believe, 1987 or 1988 by my noble friend Lord Patten, it was stated unequivocally in the House of Commons that the legislation was not retrospective. Yet, I was puzzled that it took until the third hearing of the Law Lords on a seven-to-two judgment before allegations relating to pre-1988 were ruled out of order. If the matter was so crystal clear, one would have thought that it would have been obvious to the Law Lords who ruled in the previous judgment. Therefore, I am sceptical and anxious about the assurances that have been given that what is being proposed in this Bill is not, and could not in any circumstances be, retrospective.

    The noble and learned Lord also reassured us that the rights of people who are delivered up to the International Criminal Court will be secured. He went through in considerable detail a list of the rights which would be secured. In this type of exchange, one must remember that whatever reassurances we may give or receive here, a problem exists in the minds of many very senior figures in the United States. In their Congress, in parts of their legal system—although I see that the American Bar Association has taken a less stringent view—and certainly in political and presidential circles there is a conviction that the constitution of the United States provides rights which will not be provided by what will be a foreign court.

    I notice one right on our list that the noble and learned Lord did not enumerate, and I understand exactly why—because it may be an impossible demand. It is that there will be a right to trial by jury. Can one imagine trying to piece together a jury structure for the International Criminal Court? I believe that enormous difficulties would arise in that regard. Of course, the rights listed in our amendments are not comprehensive; there are others.

    Therefore, given the binding fact that the statute has been signed, this exchange leaves one uneasy as to whether we have done all that we can. Whether it was right to have signed up to the statute in its present form is another matter outside the purview of this debate. However, the question arises as to whether we are doing all that we can to ensure that every possible right is secured and, in doing so, to open the way for the United States to see its way to accede to and ratify the statute.

    In this debate we have talked a great deal about models and examples. As well as the models and examples which we hope will influence other countries with less high traditions of democracy and less routine and strict adherence to the rule of law, perhaps we should consider models and examples which will make the project work and bring along the most powerful nation on earth. Having said that, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Schedule 3 agreed to.

    [ Amendments Nos. 84 and 85 not moved.

    Clause 29 [ Taking or production of evidence]:

    [ Amendments Nos. 86 and 87 not moved.]

    Clause 29 agreed to.

    Clause 30 [ Taking or production of evidence: further provisions]:

    The noble Lord said: Clause 29 concerns the taking or production of evidence. It applies where the Secretary of State receives a request from the International Criminal Court for assistance in the taking or production of evidence in the United Kingdom. Clause 30, to which Amendment No. 88 applies, deals with provisions in relation to proceedings before a nominated court in the United Kingdom, that is to say a court nominated under Clause 29.

    Under Clause 30, the Bill provides that a court nominated under Clause 29 can sit in private, if it considers it necessary, in order to protect victims, witnesses or suspects, or to protect confidential or sensitive information. The clause is in line with Article 64.7 of the Rome Statute under which the International Criminal Court can decide to sit in closed session.

    The purpose of the amendment is to test the Government's view as to what categories of evidence they feel might fall within the expression "sensitive". It is easy to see why confidential information should form part of Clause 30, and admirable that victims and witnesses, or a person alleged to have committed an ICC crime, should in certain circumstances be protected. But why do we need this wide category of "sensitive"?

    It is an important principle of court proceedings in our country that they be held in public. It is only in exceptional circumstances that that principle is not respected. If it is not to be respected, in our submission that should be so only in specific circumstances. We believe that those circumstance should be set out on the face of the Bill. Perhaps I may ask the noble and learned Lord the Attorney-General to react to that thought. I beg to move.

    I am grateful, again, as always, to the noble Lord, Lord Kingsland, for his careful explanation. He is right that this is taken from Article 64.7 of the statute. It is important to note that that article starts with the words:

    "The trial shall be held in public".
    That sets down the marker. It continues:
    "The trial chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in Article 68"
    and then the relevant words, as he rightly observed,
    "or to protect confidential or sensitive information to be given in evidence".
    A large number of people would be traumatised in these cases—and it is not limited simply to young children—and although the material is not strictly speaking confidential in the sense of legal confidentiality or medical record confidentiality, it would be—I use my words carefully—a double attack on such people if certain intimate private matters, which are not capable of definition but capable of being categorised, would necessarily have to be in the public domain.

    The important matters in Article 64.7 are, first, the presumption that the trial should be in public, and secondly, the discretion given to the court. That discretion has to be scrupulously exercised. It seems to me, without prejudging the conclusion of the judges, that they would need to think carefully about Article 10, for instance, on freedom of expression, and so forth. But there must be an area of evidence which really is so sensitive—I do not speak of national security sensitivity in this context—that it should not be in the public domain.

    The curiosity is that if the amendment is accepted, it would mean that material which could not become public in the ICC would already have been made public at the evidence-gathering stage in this country. It seems to me to be the wiser course that if the discretion is to be exercised, it should be exercised determinatively by the trial court and not allowed to be open to the domestic court in effect to pre-empt that discretion. If the sensitive material is taken in public in this country, there is no discretion left for the ICC to have it in private session. I do not think that is simply a lawyer's forensic argument; it goes to the substance of matters.

    Does the Minister envisage that a request will be made by the ICC to hear this particular evidence in confidence? I refer to the case he mentions, where child victims of or child witnesses to atrocities might be giving evidence and their identities and relationships to the events in question need to be confidential for their own protection. First, why should that not be dealt with under the provisions which allow protection of victims and witnesses? Secondly, would the court decide of its own volition what the ICC is likely to want to treat as confidential information or will it have received a notice from the ICC saying, "In the case of this particular witness, if the case comes before us, we intend to maintain confidentiality. Therefore, will you do so also?"

    That is an interesting question. The answer that offers itself to me, speaking immediately in answer to it, is that there might be three distinct sets of circumstances. First, it might be that the court of its own volition would take the point. Courts are now much more proactive in such matters, which I would suggest, in parenthesis, is right. Secondly, there might be a request from the ICC, and thirdly, there might be a request put forward by the individual, if he or she were represented, or by someone who is not a legal representative but who might be a representative of an authority in the relevant country.

    It seems to me that all of those are possible. It is likely that the ICC might well make the kind of request referred to by the noble Lord. If the request were not made and the opportunity was then lost, its own discretion is taken away.

    Perhaps I may ask the Minister a question, which I ask in a spirit of constructive inquiry. I know that he will always pick his words carefully; I have never heard him not do so. Can he tell me how this compares with English law as it stands currently?

    This is a matter on which I was going to speak, not in relation to English law, but it is perfectly common for judges to have to make a ruling of this kind in cases at present. Thus, for example, in cases in which there has been a sexual type of assault, the court may exclude the public, and commonly does so. That is a perfectly normal type of provision, already operated by judges. However, what interests me is that when a judge excludes the public from the court, the press is not excluded. However, there is an understanding, which can be buttressed by certain powers of the court, that the press will not report the matter publicly. However, it is important that the press is allowed to be present as representing the public, but exercising a self-denying ordinance in relation to reporting prurient and other sensitive matters.

    6 p.m.

    I am grateful. In courts north of the Border the discretion has been exercised for significantly longer. In answer to the noble Earl's request for a review of every conceivable circumstance in which courts in this country may sit in private, the legislation is relatively recent. In part, it was modelled on the Scottish experience. Therefore, there is the possibility in rare circumstances—and they should be rare—to have evidence taken in closed session. I exclude issues of national security, which I do not believe were behind the noble Earl's question.

    As regards the press, today I received a letter from the Society of Editors. Unfortunately, it arrived almost as I entered the Chamber. It made the noble and learned Lord's point that if the public are to have eyes and ears there, perhaps there should one or two members of the press to represent the media, but, more fundamentally, to represent the public. I should like to examine that issue because we were able to meet those concerns in earlier criminal justice legislation. However, as the letter arrived only today I have had no opportunity to make inquiries. I am sympathetic to the point which the noble Earl implied and the noble and learned Lord spelt out.

    I, too, just received the letter but after I had introduced the amendment. The noble and learned Lord has reassured me by saying that he will reflect on the matter. Between now and the Report state I, too, want to reflect on his thoughtful answer but I will ask him one question arising out of his initial response. He spoke of the possibility of a public hearing of a matter in this country subsequently reheard by the International Criminal Court in The Hague, in circumstances in which it would have reached the conclusion that it ought to have been heard in private in The Hague but was faced with the fact that it had already been heard in public in the United Kingdom. Would the International Criminal Court of Justice be rehearing evidence which had already been heard at its request in a nation state?

    In some circumstances, yes. It would not be rehearing it; it would be receiving it for the first time. If the evidence had been given in public in a United Kingdom court, it would be receiving evidence that had already been given. It would not be a rehearing; the court would be receiving for the first time in The Hague material which had already been received domestically.

    I understand that, but I had thought—wrongly, as it turns out—that the noble and learned Lord the Attorney-General had said that in certain circumstances The Hague court might hear the evidence again. In all those circumstances, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 89 not moved.]

    Clause 30 agreed to.

    Clause 31 agreed to.

    Clause 32 [ Transfer of prisoner to give evidence or assist in investigation]:

    moved Amendment No. 90:

    Page 16, line 24, at end insert—
    ("(1A) Where the prisoner is detained in Scotland, the Secretary of State shall transmit the request to the Scottish Ministers.").

    The noble Baroness said: In moving Amendment No. 90, I shall speak also to Amendments Nos. 91 to 95 and 136. Under Article 93.7 of the statue, the ICC may request the temporary transfer of a person in custody for purposes of identification or to give testimony. The person may be transferred only with his consent and the consent of the country concerned. He will remain in custody throughout and will be returned to the state when the purposes of the transfer have been fulfilled. Clause 32 enables us to meet our obligations under Article 93.7.

    The government amendments to Clause 32 have two aims. The first aim is to extend the clause to Scotland. The Scottish Parliament has already given its consent for this to happen. This will ensure that there is consistency throughout the UK with respect to the temporary transfer of persons in custody to the ICC. The mechanism for dealing with ICC requests for temporary transfer will mirror that in Clause 43 of the Bill, which relates to the temporary transfer back to the ICC of persons who are serving ICC sentences in this country. The second aim is to ensure that all persons in custody in the UK are covered by this clause.

    Amendment No. 94 would extend the definition of "prisoner" for the purposes of Clause 32. The amended definition would include not only all persons serving a sentence but also all persons detained in custody otherwise than serving a sentence. That would include, for example, someone in custody in relation to ongoing extradition proceedings or someone in custody for contempt.

    It would also include persons detained under the Immigration Act 1971. In order to ensure that such persons are not disadvantaged in respect of any ongoing claim under any immigration Act by agreeing to give assistance to the ICC, the person would, for the purposes of immigration legislation, be considered not to have left the UK while he was subject to the temporary transfer warrant.

    Amendment No. 136 is consequential on the earlier amendments. By virtue of the extension of Clause 32 to Scotland, Clause 78, which defines the extent of this Bill, will also need to be amended.

    We believe that these amendments will improve Clause 32 and make us better able to fulfil our obligations and to provide support to the ICC. I beg to move.

    On Question, amendment agreed to.

    moved Amendments Nos. 91 to 95:

    Page 16, line 25, leave out ("Secretary of State") and insert ("relevant Minister").
    Page 16, line 27, leave out ("Secretary of State") and insert ("relevant Minister").
    Page 16, line 38, at end insert—
    ("( ) a person serving a sentence in a prison, or in a young offenders institution, to which the Prisons (Scotland) Act 1989 applies,").
    Page 16, leave out lines 41 and 42 and insert—
    ("(ba) a person detained in custody otherwise than in pursuance of a sentence, including in particular—
  • (i) a person in custody awaiting trial or sentence,
  • (ii) a person committed to prison for contempt or for default in paying a fine,
  • (iii) a person in custody in connection with proceedings to which Part II or III of Schedule 2 applies (extradition or other delivery proceedings),
  • (iv) a person detained under any provision of the Immigration Act 1971.
  • (5A) For the purposes of the Immigration Acts (within the meaning of the Immigration and Asylum Act 1999) a person detained under any provision of the Immigration Act 1971 is not to be regarded as having left the United Kingdom at any time when a transfer warrant is in force in respect of him (including any time when he is in the custody of the ICC).").
    Page 16, line 42, at end insert—
    ("(6) In this section, "the relevant Minister" means—
  • (a) in relation to a person detained in England and Wales or Northern Ireland, the Secretary of State:
  • (b) in relation to a person detained in Scotland, the Scottish Ministers.").
  • On Question, amendments agreed to.

    Clause 32, as amended, agreed to.

    Clauses 33 and 34 agreed to.

    Schedule 4 agreed to.

    Clauses 35 to 37 agreed to.

    Schedule 5 [ Investigation of proceeds of ICC crime]:

    moved Amendment No. 96:

    Page 51, line 37, leave out paragraph 5 and insert
    ("5.—(1) A person affected by the making of an order under this Part of this Schedule shall be entitled to apply on 24 hours' notice in writing for the discharge of the same.
    (2) The application shall be heard by a judge, other than the judge who made the order, without notice.
    (3) An appeal against the refusal to discharge shall lie without leave to the Court of Appeal (Criminal Division).").

    The noble Lord said: Most telegraphically, Schedule 5 deals with the investigation of proceeds of an ICC crime. Part I deals with production or access orders and the amendment seeks to replace paragraph 5 of the schedule. We believe that provision should be made on the face of the Bill for a right to apply on notice for the discharge ofsuch an order and for an appeal against refusing to discharge. I beg to move.

    Clause 29(4) exactly mirrors Sections 93H(7) and 93H(8) of the Criminal Justice Act 1988. The amendment would have the effect of putting on the face of the Bill provisions which I am happy to reassure the Committee the Government intend to make in Crown Court Rules on the general effect of production and access orders. With his usual courtesy, the noble Lord nods. I could go further and explain the unmitigated defects of the amendment as drafted, but I believe that it is purposeless.

    I am most grateful to the noble and learned Lord. In those circumstances, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Schedule 5 agreed to.

    Clause 38 agreed to.

    Schedule 6 [ Freezing orders in respect of property liable to forfeiture]:

    I should advise the Committee that if Amendment No. 97 is agreed to, I cannot call Amendments Nos. 98 and 99. If Amendment No. 98 is agreed to, I cannot call Amendment No. 91.

    moved Amendment No. 97:

    Page 55, line 43, leave out from beginning to end of line 24 on page 57.

    The noble Lord said: In effect Amendments Nos. 97 and 98 cancel each other out or cover the same ground. Amendment No. 97 would remove from the schedule paragraph 9 and Amendment No. 98 would remove both paragraphs 9 and 10. These amendments are concerned with the position of unsecured creditors in relation to a bankrupt's estate, which is already subject to Crown preference for debts and the effect of mortgage securities.

    As I understand it, under the schedule as currently drafted if a person subject to ICC jurisdiction is adjudicated bankrupt any property owned by him which is subject to a freezing order, whether made on the basis of an actual conviction and forfeiture order, or on the basis of a threat of one—either can be the case under this legislation—will not form part of his estate. I am advised that in real terms this means that the unsecured creditors of the bankrupt, which exclude the Crown as preferential creditor, will be deprived of the benefit of those assets which form part of the estate available for distribution. One must ask two questions. First, where does the Crown fit into this, or does the ICC have preference over Crown preference? Secondly, what justification is there for a provision which in the event of insolvency places the unsecured creditors in an even worse position than many believe they are already? These amendments have the effect of removing from the schedule what we regard as the offending paragraphs. I beg to move.

    I wish I was able to claim such intimate knowledge of the bankruptcy legislation as the noble Lord. I am happy to say that God has saved me from that in the past but his protection is now being taken away from me. The noble Lord is quite right. However, if as the amendments suggest, paragraphs 9 and 10 were removed, there would be no provision left in the Bill as to how freezing orders should be enforced. I also agree with the noble Lord that if paragraph 9(1) was deleted it would mean that when a person became bankrupt after a freezing order, property subject to that order could not be used to pay off a bankrupt's debt. If that provision was removed we would be unable to implement an ICC forfeiture order and thus would be in breach of our obligation under the statute to enforce it. If the noble Lord suggests that perhaps the degrees of preference are sometimes capable of unfairness, in theory that may well be so. However, we have our statutory obligations.

    The noble Lord asked me a particular question about precedence. I am assured that the answer is that the precedence given to the ICC is the same as precedence given to domestic criminal confiscation orders and overseas orders. The recovery of the proceeds of crime takes precedence. I hope that that answers the noble Lord's last question. We believe that we must give precedence to our international obligations. If the amendments were carried the gap created would mean that we could not do it.

    I am grateful to the noble and learned Lord. He takes a very kind view of my grasp of these matters, but I assure him that I do not plead guilty to being an expert in this field either. However, based on layman's experience there is considerable discontent even now as to the position of the Crown as preferential creditor. Many believe that in a commercial nation that should not be applied with its usual vigour.

    I am grateful to the noble Lord for giving way. My understanding is that the Crown is a preferential but not a secured creditor. The Crown simply has a right of preference over other unsecured creditors and, therefore, is not perhaps in such a favourable position as the noble Lord suggests.

    I defer to the noble Lord. I understand that that is the position, which many people still regard as unsatisfactory. This legislation places someone else at the head of the queue. That may be necessary in order to conform to the statute, which is a hoop from which we cannot escape in this particular legislation. However, I do not believe that this news will be joyfully received. In the light of the response of the noble and learned Lord, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 98 not moved.]

    6.15 p.m.

    moved Amendment No. 99:

    Page 55, line 45, after ("order") insert (", or an order having the like effect in Scotland,").

    The noble Baroness said: In moving Amendment No. 99 I should like to speak also to Amendments Nos. 100 to 102. These amendments seek to ensure consistency between England, Wales, Northern Ireland and Scotland. The purpose of the amendments is very simple. At present paragraphs 9 to 12 of Schedule 6 explain how a freezing order made by a court in England and Wales or Northern Ireland would interact with legislation on bankruptcy and insolvency. In certain circumstances it would mean that property subject to a freezing order would be excluded from the estate of a bankrupt individual or the property of a company being wound up. Since our insolvency and bankruptcy legislation vests property in the trustee wherever it is, it may be that the property of the bankrupt individual is in Scotland and conceivably may be subject to a freezing order issued by a Scottish court. The amendments ensure that the provisions of paragraphs 9 to 12 of Schedule 6 apply to a freezing order issued by a Scottish court under the equivalent Scottish legislation as they would to a freezing order made under the Bill. I believe that this is a sensible technical change. I beg to move.

    We have already indicated in earlier debate that we are not very happy with paragraphs 9 or 10. If, however, these provisions are to be part of the Bill the tidying-up amendments just spoken to improve the drafting. In the light of that, we do not seek to oppose them.

    On Question, amendment agreed to.

    moved Amendments Nos. 100 to 102:

    Page 56, line 35, after ("order") insert (", or an order having the like effect in Scotland,").
    Page 57, line 30, after ("order") insert (", or an order having the like effect in Scotland,").
    Page 58, line 16, after ("order") insert (", or an order having the like effect in Scotland,").

    On Question, amendments agreed to.

    On Question, Whether Schedule 6, as amended, shall stand part of the Bill?

    Schedule 6 is related to Schedule 5. Schedule 5 is concerned with the investigation of the proceeds of ICC crime, and Schedule 6 is about freezing orders in respect of property that is liable to forfeiture. Can one take it that freezing orders can be applied only in respect of ICC crimes, or is it possible for the court to issue a general freezing order just to exert pressure on somebody, which would seem to be more questionable and a far wider practice? Is it limited simply to freezing what are alleged to be the proceeds of ICC crime?

    As the noble Lord pointed out, the schedule is designed to enable the freezing of property at the request of the ICC with a view to eventual forfeiture. He asked the question: must the property in question relate to ICC crimes or can it be a general freezing order, either to cast the net wider or perhaps to maintain improper pressure? The answer is that it relates only to ICC crimes.

    Schedule 6, as amended, agreed to.

    Clause 39 [ Production or disclosure prejudicial to national security]:

    moved Amendment No. 103:

    Page 18, line 11, at end insert ("save in so far as such production or disclosure is reasonably required to ensure the protection of the rights of the subject of the ICC proceedings").

    The noble Lord said: Clause 39(1) of the Bill states:

    "Nothing in any of the provisions of this Part, or any corresponding provision of an Act of the Scottish Parliament, requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of the United Kingdom".

    Amendment No. 103 seeks to add to the end of that expression,

    "save in so far as such production or disclosure is reasonably required to ensure the protection of the rights of the subject of the ICC proceedings".

    In other words, we wish to put the authorities to their election; either they disclose the information to the extent that is required to ensure the protection of the rights of an individual—or, if they do not produce the information to the extent necessary, they will not succeed. I beg to move.

    I understand the motive. It is a perfectly honourable one because it is designed to protect the rights of an individual coming to trial at the ICC. I must reserve the right to protect the national security of the United Kingdom. There is that dilemma. In Article 72, which deals with all these matters, it is fairly met. Article 72.5 states:

    "If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
  • (a) Modification or clarification of the request;
  • (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
  • (c) Obtaining the information or evidence from a different source or in a different form;"—
  • those words are very important—
    "or; (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules".
    I hope that I can fairly paraphrase Article 72.6. It says that once all reasonable steps have been taken and there are no means in the state's view under which the information or documents could be provided, it shall notify the prosecutor or the court of the specific reasons for its decision unless a specific description of the reasons would itself necessarily result in such prejudice to the state's national security interests.

    I know a smile appears. It sounds like George Orwell until one takes a minute or two to look at it. Everyone who has had to deal with a matter of this kind knows perfectly well that sometimes you cannot say why you cannot say, because if you did say why you cannot say, people would work it out. It is called the "jigsaw effect". It is a perfectly easy technique which can be adopted by those who wish us no good. So I have responded to the smiles. I have smiled in that way before. But on some occasions it is legitimate to be as cautious as this. Article 72.7 states,
    "Thereafter, if the court determines that the evidence is relevant and necessary for the establishment of guilt or innocence of the accused"—
    it can take all kinds of different steps as are appropriate, including making inferences. If one goes through all that procedure, I respectfully suggest that it is significant tender care for the interests of the defendant as opposed to the legitimate interests the state may have—not always—when national security assertions are raised. I hope that the noble Lord, Lord Kingsland., will be able to agree with me that those Article 72 protections meet his reasonable concern. They are set out in very full detail and require a good deal of thought, check and counter-check and balance and counter-balance.

    I am much obliged to the noble and learned Lord the Attorney-General for his helpful response. Does he agree that, in the circumstances, it is appropriate to have an express reference in Clause 39(1) to Article 72?

    I do not believe so, otherwise, on every occasion one will have references. The Bill as it stands is perfectly simple to follow. One then looks at how the matter will be dealt with in the ICC.

    I hear what the noble and learned Lord says. But this is not any old matter in the Bill; this is one of the most crucial clauses in the Bill. It deals with the rights of the individual confronted by the so-called interests of the state. In the circumstances, it is particularly appropriate for the rights of the individual to be spelt out on the face of the Bill, or, at least, to be easily accessible to someone reading the Bill.

    I do not think it should be on the face of the Bill. I believe it is in its proper place. I take the point that if there is a post-legislative explanatory memorandum, or if there are some materials to be provided, this would be a useful reference to go into any such explanatory material that comes out after the Bill is passed. But one does not need to incorporate Article 72 onto the face of the Bill. Anyway, that has not been the scheme of the Bill.

    I do not want to prolong this matter. It may be appropriate for us to return to it on Report. I was not suggesting that the whole of the article should be on the face of the Bill, merely that reference should be made to it. For example, reference has been made to the rules of procedure. Under Clause 3 of the Bill, which deals with provisional warrants, there is an example of an ICC document expressly mentioned. Here is another opportunity for the noble and learned Lord to follow a similar precedent.

    Amendment, by leave, withdrawn.

    Clause 39 agreed to.

    Clauses 40 to 42 agreed to.

    Schedule 7 [ Domestic provisions not applicable to ICC prisoners]:

    moved Amendment No. 104:

    Page 60, line 44, at end insert—
    ("( ) Notwithstanding anything in the preceding sections, a person convicted by the ICC and serving his sentence in the United Kingdom shall serve a sentence which is no longer than the maximum for that offence in the United Kingdom, and shall be subject to the same rules on parole, remission, credit for time served on remand and early release as other serving prisoners who are United Kingdom nationals.").

    The noble Lord said: The amendment concerns the length of sentence passed by the International Criminal Court. The amendment suggests that on conviction a UK national should serve a sentence no longer than the maximum for that offence in the United Kingdom. It seeks to have other conditions apply which are the same as those of nationals serving sentences for the same kind of offence. To some extent, it reflects the declaration on the ratification status document put down by the Spanish Government which argues for similar legislation.

    That raises, en passant, the question that I raised earlier in Committee: when will we know about the declarations, interpretative clauses and reservations that will go down should the Bill become law and should the Government decide to ratify the Statute of Rome? These are clearly very important matters which enable the public and Parliament to judge novel legislation and what we are committed to as a nation. If the answer is that this cannot be because the statute would not allow us, that would not come as a surprise to me, because it is another feature of the Bill that there seems to be one set of laws for the International Criminal Court which differ fundamentally from the criminal law of England and Wales. That is regrettable, but we proposed the amendment to ascertain the Government's response. I beg to move.

    6.30 p.m.

    I respond by referring to the fundamental principle, which is that states parties will implement, and not unilaterally modify, the sentences of the International Criminal Court. I do not see how such a court could operate if that principle were not adhered to.

    On prison sentences, Article 78 of the statute, which is helpful, provides that the ICC will take into account various factors that are familiar to our criminal justice system; for example, previous time spent in detention must be deducted. The total prison sentence must not to be more than 30 years, or life, under Article 78.3. The statute provides that the ICC will review the sentence after the prisoner has served two-thirds of it, or in the case of life prisoners, after 25 years, to see whether there should be a reduction.

    We could not go down the route suggested in the amendments. Article 110 states:
    "The State of enforcement shall not release the person before the expiry of the sentence pronounced by the Court".
    It says unambiguously:
    "The Court alone shall have the right to decide any reduction of sentence".
    Article 105 provides:
    "Subject to conditions which a State may have specified",
    in declaring its willingness to accept prisoners from the ICC,
    "the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it".
    The amendment to Schedule 7, relating to parole, remission, credit for time served on remand and early release, would make redundant the provisions of the schedule and would violate the provisions of the statute, to which I referred briefly. That would mean that we could never accept any ICC prisoners. I do not think that that would be a good outcome for prisoners in this category.

    I understand the motive that has impelled the noble Lord, but if one goes through the articles which I specified, one can see that it would not be possible to do that. We would have sentences passed by the ICC and a multiplicity of serving jurisdictions, as it were, which might have all sorts of consequences. After all, a state has to indicate that it is willing to accept prisoners, under Article 103, and when it has done so, it has to abide by the rest of the articles. I regret that I cannot accept the amendments.

    I must say that the response of the noble and learned Lord does not surprise me, but if the position is as rigid as he says, will he relieve my mind on a particular aspect? How is the Kingdom of Spain free to put down on the ratification status document a reservation, or declaration, which has roughly the same effect as the amendment would have? I cannot understand that.

    I have not seen that interpretative statement. It may be that there is an internal Spanish justification; I simply do not know. If the noble Lord can provide me with that, I shall be happy to research it and write to him, and put a copy in the Library. My advice and understanding is that it is not possible for us to do that.

    I was saying that an accepting state—one which accepts prisoners into its domestic prisons—has to indicate its willingness to accept prisoners. Any country such as Spain is entitled to say that it will accept prisoners, pursuant to Article 103.1, which may mean that no prisoner will go to that jurisdiction. That would be a misfortune for many.

    It may be that that short paraphrase has not been perfectly expressed. Perhaps I should write to the noble Lord on that point in any event, if he will allow me a day or two to do so. I shall also put a copy in the Library.

    I shall be happy to do that. I take it from what the noble and learned Lord said that such declarations are possible—indeed, they have occurred—but that the British Government would not wish to make such a declaration. I look forward to receiving a note from the noble and learned Lord, and thank him for his kind offer.

    Before the noble Lord sits down, is he clear about whether the Government will declare their willingness to accept prisoners under the statute? If so, it would be useful to have it on the record.

    As far as I am aware, we are willing to take prisoners. That will be some way down the road—temporarily.

    Amendment, by leave, withdrawn.

    Schedule 7 agreed to.

    Clauses 43 to 48 agreed to.

    Clause 49 [ Power to make provision for enforcement of other orders]:

    On Question, Whether Clause 49 shall stand part of the Bill?

    We come to an important matter on which we seek strong reassurance. The purpose of proposing that Clause 49 should not stand part of the Bill is that the provisions for the enforcement of ICC-generated or originated fines, forfeiture or compensation orders should be included in primary legislation, and not left to subordinate provision. It appears that the Bill allows that there should be no limit on the future extension of additional crimes which can be tagged on to the Bill or its schedules. We do not believe that that is right. Perhaps there are reassurances in the Bill. If so, we should like to hear them.

    We propose that any attempt to amend the schedule should come back before Parliament, rather than being adjusted simply by Orders in Council. Any updating of statutory instruments, regulations or schedules must be brought before Parliament. That is why we seek to remove the clause and that is the reason behind some amendments that have yet to be moved. Such an amendment was accepted by the government in the New Zealand Parliament, and there is no reason why the same should not apply here. It is a principle of our democracy and parliamentary system that new crimes, when identified, should be added to the statute book by primary legislation. That should certainly be the case for future ICC crimes which have not yet been defined, but which may be added to our statutes in due course.

    I am not sure that I agree with the noble Lord about the purpose of Clause 49. It is not to do with new crimes, but the enforcement of other orders. In other words, it is about an order that is not a sentence of imprisonment. Clause 49 states:

    "The Secretary of State may make provision by regulations for the enforcement"—
    it is simply provisions for enforcement—
    "of fines or forfeitures … orders by the ICC against convicted persons, specifying reparations to, or in respect of, victims".
    What has to be in the regulations is then set out.

    The regulations could not be made without scrutiny. The provision simply gives effect to our states party obligation to enforce the orders. Those orders are set out in Clause 49(1)(a) and (b). They relate to fines, forfeiture of property derived directly or indirectly from the crime for which the person has been convicted. What is also important I hope—that the Committee will affirm this—is the order requiring a person to make reparation to the victims, a power which our delegation in Rome worked hard to include in the statute.

    Enforcement orders can be made only after conviction and after any appeal has been determined. So the provision is not as dramatic as the noble Lord feared. It simply provides the mechanism by which fines, property orders and reparation orders can be gathered. We envisage that the regulations would follow established procedures along the lines of the enforcement of forfeiture orders which we receive from other countries. We would anticipate a process by which the order would be registered and then enforced by a domestic court as if it were an order of the court. But there will be safeguards in the procedure in respect of persons with an interest or rights in the property affected by any order.

    I hope that I have been able to satisfy the noble Lord. I do not think that his fears, which I recognise as legitimate, bear on Clause 49, which is to do with the recovery of a fine, a recovery of property order and the recovery of reparations. The scheme of regulations will be published and there will be the opportunity for Parliament to scrutinise the regulations. I do not think that it is the worrying problem that we have had on other occasions and about which I have been able to meet noble Lords' concerns by accepting the views of the Delegated Powers and Deregulation Committee. It is quite different in concept.

    I am grateful to the noble and learned Lord. The stand part debate is concerned primarily with fine, forfeiture or compensation orders. I believe that those should be put into primary legislation. The noble and learned Lord disagrees with that and believes that the established procedures are acceptable. As to crimes, I accept that I was reaching forward into the debate on the next amendment where we will be concerned with that matter.

    Clause 49 agreed to.

    Clause 50 [ Meaning of "genocide", "crime against humanity" and "war crime"]:

    moved Amendment No. 105:

    Page 23, line 38, leave out subsections (2) and (3).

    The noble Lord said: We come now to the amendment which expands the scene on which. I wish to comment. Subsections (2) and (3) of Clause 50 appear to provide for the imposition of serious criminal liability on a retrospective basis. In other words, something that was not a crime is subsequently seen to be a crime. We believe that criminal sanctions should be clearly defined in advance of the acts concerned. Any proposed additions to the types of offences which are to be added to the ICC armoury—additions will come because the assembly will get its teeth into these matters—should be the subject of primary legislation, something which, again drawing on the New Zealand example, has been ensured in the legislation of that country.

    Can the Minister say whether that is the case? What other crimes might be added? How will they be handled? Can we be sure that they will be handled by primary legislation and that new crimes will not be whistled onto the statute book by Order in Council or by a minor regulatory provision?

    Perhaps I may say straight away that we do not see the difficulty that the noble Lord has outlined in relation to interpretation and we do not see Clause 50 as having a retrospective basis. Amendments Nos. 105 and 106 would have the effect of removing consideration by domestic courts of like cases before the ICC and internationally. They would also take the Elements of Crimes document out of the process of defining these crimes. Perhaps I may draw the Committee's attention to Clause 50(2) and (3), which the noble Lord seeks to have removed. It is a guide in relation to interpretation in terms of what the court should take into account. Subsection (2) provides:

    "In interpreting and applying the provisions of those articles the court shall take into account—
  • (a) any relevant Elements of Crimes adopted in accordance with article 9, and
  • (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000".
  • Members of the Committee will be aware that international consensus was arrived at in relation to the Elements of Crimes and they will have persuasive and helpful authority for any courts seeking to determine it. I am quite sure that the noble Lord's intention in putting forward the amendment is not to remove or disable our courts from being in an equal position to deal with matters relevant to the ICC. If that was the purpose, it would not be a sensible step.

    ICC cases are likely to be few and far between. That will be amplified at domestic level. There will be no large body of case law for our courts to consider when faced with a difficult ICC trial. We should afford them every opportunity to take into account how like cases have been decided in other jurisdictions, especially at the ICC itself.

    Subsection (3) states:
    "The Secretary of State shall set out in regulations the text of the Elements of Crimes referred to in subsection (2), as amended from time to time".
    We would say that that is a helpful and necessary provision in terms of development of this issue.

    I turn to Amendments Nos. 115 to 118, which seek to amend Clause 54 in a number of ways. Amendments Nos. 115 and 116 have a similar aim to the ones I have just mentioned. They seek to exclude, or make discretionary, consideration of ICC judgments and decisions relating to the interpretation of part of the Rome Statute. As I explained, in relation to Clause 50, that does not seem a sensible course to take.

    Our courts will rarely face cases where someone is being tried for offences against the administration of justice of the ICC. We should afford them every opportunity to take into account how like cases have been decided and considered, especially at the ICC itself given the nature of the offence we are discussing.

    It is our belief that Amendments Nos. 117 and 118 would not add anything of substance to the Bill. Subsection (5), which they seek to amend, follows the drafting of other Acts with an international criminal element; for example, the corresponding subsection of the War Crimes Act 1991. We see no reason to deviate from that construction. We should not invite judicial review in this way for matters ordinarily dealt with in the course of a criminal trial. I hope therefore that the noble Lord will not seek to press his amendments.

    Having listened to the discussion, can I ask the noble Baroness whether the concerns of my noble friend Lord Howell could be met by an interpretative statement on ratification relevant to elements of crimes?

    Before the noble Baroness responds to the question put by the noble Lord, could she also respond to a question that I wish to put to her? The noble Baroness mentioned the War Crimes Act 1991 as a precedent for the construction of these clauses. Were equivalent clauses included in the statutes which enabled us to ratify the International Criminal Tribunals on Rwanda and on the former Yugoslavia? Were similar provisions contained in those pieces of legislation?

    I shall deal first with the point put to me by the noble Lord, Lord Campbell of Alloway. We think that the interpretation has been made clear on the face of the statute. We do not believe that it will cause any difficulty. It is clear that the court would be entitled to take those matters into consideration.

    I do not have a direct answer to give to the noble Lord, Lord Avebury. I believe that what he said is right, but I shall have to confirm it to the noble Lord before taking the matter further.

    I have just received further briefing. It is true that, in relation to Rwanda and Yugoslavia, judges have elaborated elements themselves, although those have not been renegotiated. I shall clarify the matter more fully and I shall write to the noble Lord in due course.

    In the light of what the noble Baroness has said, as well as her comments made after receiving a fresh supply of ammunition to enable her to give the Committee an up-to-date response, I should like to examine carefully what she has said about this matter. Despite the reassurances she has given as regards the elements of crimes and so forth, I am left with the feeling, on which I should like to dwell further, that we could find the statute law of this country being changed in relation to crimes as set down in the statute book in ways that are not consistent with our normal practice of passing primary legislation. Perhaps I have that wrong, but the noble Baroness had to deal with extremely complicated legal points here.

    In my earlier remarks I should have commented on Amendments Nos. 117 and 118 which have been included in this grouping. However, they do not address quite the same point. The purpose of those two amendments was to probe whether any person other than the Attorney-General should be able to institute proceedings and where we would stand, once this legislation has been passed, in relation to so-called public interest litigators. They may seek this consent and perhaps move on to question the Attorney-General's decision and then even subject such a decision to judicial review. This is a matter of concern connected with what we have been discussing. However, it raises slightly different issues. Perhaps the noble Baroness covered this point, but if she did not, I should be grateful if she could reiterate that she has noted our concerns on this point and indicate whether she has a response to make to them.

    I certainly note the concerns expressed by the noble Lord. Perhaps I may make it absolutely clear that as far as we are concerned these provisions are not concerned with retrospection. I think that I said that earlier. The offences were those negotiated in Rome for the statute, not those interpreted elements of crimes. Any new crimes, such as aggression, would require primary legislation in due course. I hope that I am able to reassure the noble Lord in relation to that matter.

    Furthermore, perhaps I may remind noble Lords that the UK courts will not be bound by the decisions of other bodies, but it is right that they should be guided by them and be able to take such issues into consideration. I hope that I have now covered the points raised by the noble Lord.

    In view of those comments and given that I should like to read carefully all that the noble Baroness has said, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 106 not moved.]

    Clause 50 agreed to.

    Schedule 8 [ Genocide, crimes against humanity and war crimes: articles 6 to 9]:

    [ Amendment No. 107 not moved.]

    Schedule 8 agreed to.

    7 p.m.

    Clause 51 [ Genocide, crimes against humanity and war crimes]:

    moved Amendment No. 108:

    Page 24, line 29, after ("person") insert (", whatever his nationality,").

    The noble and learned Lord said: This amendment has been tabled in the name of the noble Lord, Lord Avebury. We appear to have been playing a game of "box and cox" throughout these debates. It covers very much the same ground as Amendment No. 110, tabled in the name of the noble Lord, Lord Lester, my noble friend Lord Goldsmith and myself. For that reason, the noble Lord, Lord Avebury, was kind enough to suggest that I might introduce the debate. In order to do that, I understand that at this point I shall have to move Amendment No. 108. I understand that the noble Lord, Lord Lester, is still occupied with the business of the Human Rights Committee. For that reason, he cannot be here to move the amendment himself.

    It may be convenient for the Committee if, in moving Amendment No. 108, I speak also to Amendments Nos. 109 to 114 and 120 to 125. All the amendments address the same point, so this is not as complicated as the groupings list might indicate at first sight.

    We have discussed the processes of the international court. Now we are discussing amendments to the domestic law of this country. The fundamental principle of the statute, set out in Article 1, is the principle of complementarity. The first question which falls to be decided before a prosecution may proceed is whether a state having jurisdiction in the case is investigating the offence or is already prosecuting. That is the burden of Articles 19 and 20.

    It is expected that normally the offences in question shall be dealt with by individual states under their domestic law. It follows that they should make appropriate provision in their domestic law. As my noble friend Lady Scotland pointed out in answer to our previous debate, it is unlikely that there will be a flood of cases before the International Criminal Court because most will be decided elsewhere.

    I know of no reason why the opportunity could not have been taken to extend to our domestic courts a universal jurisdiction in respect of offences under the statute. As I recollect, the only reason given in the debate on Second Reading was that the statute does not require it. At a later stage, my noble and learned friend was duly lectured by me on this point; he knows my feelings.

    It sounded a little as though the purpose of the Bill was to enact the bare minimum required of us and not a scintilla more. I do not believe that the Government mean to legislate in that spirit. This is an opportunity to offer a lead to other countries in an exciting new, international venture. Despite what was said at an earlier stage by, I believe, the noble Lord, Lord Lamont, I still venture to think that this country carries enough credit internationally to have some of its better leads followed—or at least, in the interests of my grandchildren, I hope that that is the case.

    We should not sidle towards the matter at the edge of the crowd; we ought to be looking to give a lead here. However, that is only a subsidiary reason for the step required by this amendment. The fact that the statute does not require the introduction of universal jurisdiction is not a reason for individual states to omit it from their domestic jurisdictions, but to include it. If the offender is physically within the jurisdiction of the English courts, and the international court cannot try him—for example, because his own state is not a party to the statute and does not give consent—it would be a scandal if he were then allowed to go free because we have no jurisdiction to try him in this country.

    If the reason for the omission is simply because we have not claimed universal jurisdiction in the past, I believe that there are two responses to that. First, this is not a situation in which the past is a role model for the future. It is a new departure in global affairs. At last the world is beginning to recognise that national sovereignty is not a sanctuary for evil doers. That is why we have a statute.

    Secondly, it is not true that this is new to United Kingdom law. The concept of universal jurisdiction is not an alien life form to us. At Second Reading I referred to the Geneva Conventions Act 1957. Other noble Lords gave similar examples. If those who tender advice to my noble friend would find it convenient to have a list of examples of legislation in which accountability in the British courts for criminal offences is not conditional upon being a national of the United Kingdom, I suggest the Sexual Offences Act 1956, the Geneva Conventions Act, which I have mentioned, the Suppression of Terrorism Act 1978, the Taking of Hostages Act 1982, the Internationally Protected Persons Act 1978 and the Criminal Justice Act 1988. Other examples have from time to time been given. However, there may be room for arguing whether they are genuine examples. I believe that the ones I have given are genuine examples. There is no single jurisprudential principle running through them. Each provision has been introduced where it seems necessary to respect our international obligations, or where it is obviously fair and just and needed to protect vulnerable victims.

    If the Bill remains unamended, we may prosecute someone for torture. However, if he had committed genocide, he would be immune from prosecution. The withholding of universal jurisdiction from our domestic courts would give rise to a number of anomalies. Let us imagine a situation in which people of various nationalities were involved and a force of mercenaries assembled, supporting one side in a conflict. Let us also suppose that a British and a foreign national were both involved in the same incident and accused of an offence under the statute. If they were both found within the jurisdiction of the British courts, the British national could be prosecuted and, if the occasion arose, sentenced, the foreign national permitted to walk away.

    If a foreign national is accused of an offence against a British national—by no means a fanciful situation in cases of aid workers visiting an increasing number of locations to assist civilians—and the alleged offender is found in the jurisdiction of the British courts, the authorities can take no step to punish the offence against the British victim. They must allow the alleged offender to make his way, possibly unmolested, to some safe haven that is not a signatory to the statute.

    Another example arises out of the Pinochet case. If Senator Pinochet is found in our jurisdiction, he may be prosecuted for torture committed abroad. But if, instead, he murders his victims, there is no power to prosecute him for that offence. The list of anomalies is endless. I shall not weary the Committee with all of them. Other noble Lords may cite examples.

    However, I should like to tender one more example—a situation in which United Nations workers and representatives of non-governmental organisations together seek to bring relief to the victims of a tragedy and a paramilitary group arranges a mass kidnapping in order to either extract a ransom or some concession from the international community. If any of the offenders are found in the jurisdiction of British courts, they may be prosecuted, under the Taking of Hostages Act 1982, for kidnapping the United Nations workers. However, the mercenaries, unless British subjects, cannot be prosecuted for offences against workers from the British NGOs, such as, for example, Mr Terry Waite.

    If the Government's reasons relate to the difficulty of finding and producing evidence of crimes committed abroad, the successful prosecution of Antony Savoniuk should be reputation enough. In that case, the crimes were committed long ago. In cases of alleged offences committed more recently, the evidence would be more readily available. Belgium, Germany, Canada, New Zealand and South Africa appear to have no reservations about their capacity to mount successful prosecutions. Instead of receiving universal acclaim for the part played by the Government in the negotiations leading to the treaty, there is a danger that Britain will acquire a reputation as a safe haven for pariahs who dare not show their faces in any other country.

    The human rights NGOs, to whom I referred in an earlier debate, are reinforced in respect of this issue. The Bar Human Rights Committee, of which my noble and learned friend the Attorney-General and my noble friend Lady Scotland will have affectionate recollections, has added its not inconsiderable voice to the debate. My noble friends may have seen a memorandum from Michael Birnbaum QC and Peter Carter QC.

    In this venture the Government have many friends who seek to make the process for which we are legislating more effective. They really should listen to them. I beg to move.

    I am delighted to follow the noble and learnedLord, Lord Archer. I should like to expand on one aspect of the important case that he has made out, that is, the anomaly that exists in relation to Common Article 3 of the Geneva Conventions, which deals with offences against civilians committed in the course of domestic armed conflicts.

    The noble Lord, Lord Archer, referred to crimes committed against British citizens. I should like to refer to the events at Balibo, East Timor, in early December 1975 when, before they acknowledged the invasion, the Indonesians sent clandestine forces into the territories and murdered five journalists, including two British citizens. That crime has from time to time been investigated—the Committee may think inadequately, because no one has ever been brought to justice—but Mr Yunus Yosfiah, the Commander of the Indonesian troops in Balibo, was at one time a guest of Her Majesty's Government and, unknown to anybody here at the time, attended a defence college in this country.

    If in the future such a case occurred, in which a person accused of murdering our own citizens happened to enter our jurisdiction, we would not be able to try him because the offence would have been committed, as the Indonesians had claimed, in the course of a domestic armed conflict. I do not want to develop the argument whether the fourth Geneva Convention applied to the Indonesian activities in East Timor because that has never been clarified. However, if this Bill is left as it stands and we do not have jurisdiction over Article 3 offences, a criminal who had murdered British citizens in the course of a domestic armed conflict would not be triable before courts of the United Kingdom. We should have to rely on the ICC to make a request for arrest and extradition of such a person to be brought to justice.

    I thank the noble Lord for giving way. Perhaps I may ask whether there is a reciprocal proposal to his. Would it not follow from his proposal that we should have to accept foreign jurisdiction over crimes that might have been committed here? For example, if a member of Sinn Fein was released from prison under provisions in this country and then arrested in New York, he would have to stand trial in New York if he had murdered an American in this country.

    I think most authorities would acknowledge that the threshold for the application of Article 3 has not been reached in relation to Northern Ireland. There has to be a certain level of armed violence before a conflict can be treated as non-international within the meaning of the Geneva Conventions, and particularly within the meaning of Article 3. What has happened in Northern Ireland, or what may happen in a similar situation in the United Kingdom in future, would not be the same as what happened in East Timor where plainly there was a domestic armed conflict. Forces were engaged in an organised way on both sides and no one questions the applicability of the Geneva Conventions to that conflict.

    A more recent example which shows the absurdity of the situation outlined by the noble and learned Lord, Lord Archer, is what happened in Bosnia. At one point, the Bosnian conflict was a domestic armed conflict—a non-international armed conflict, to use the terminology in the Geneva Conventions. The states concerned were then recognised by the United Kingdom and others and it became an international armed conflict. Therefore, a crime committed on one day against civilians would not have been justiciable in the British courts under these proposals, and on the following day it would have suddenly become justiciable, even though the crime itself would have been of exactly the same nature and extent.

    I very much hope that the Government will think again about this issue. As the noble and learned Lord, Lord Archer, said, we are getting into a very difficult position when we attempt to distinguish between domestic armed conflicts and conflicts of an international character. I would point out to the Committee that the vast majority of conflicts nowadays occur within state boundaries and not between states. When the Geneva Conventions were first accepted by the international community, international conflict was the rule. Now it is not; it is the exception. If we look at the conflicts in Africa, for instance, the only international conflict which has taken place in recent years is the one between Eritrea and Ethiopia, whereas one can think of countless conflicts which have taken place within the borders of states such as Sierra Leone, Angola, Sudan and so on. I do not need to enumerate them.

    The vast majority of crimes committed against civilians are, to use the Geneva Conventions terminology, Article 3 crimes, and they will not be covered by the Bill. I hope that the Government will think again and agree to the amendment proposed by the noble and learned Lord, Lord Archer, or something very like it.

    I wish to say a few words on this topic, which I also raised at Second Reading, not because I believe for a moment that the case made by my noble and learned friend Lord Archer and the noble Lord, Lord Avebury, is not convincing—indeed, overwhelming but—because it is an important point.

    We should remember that unless and until all countries ratify the Rome statute, there will be gaps in jurisdiction. People who do not come from countries which have ratified, or who have not committed acts in places which have ratified, will not be subject to the court's jurisdiction except in exceptional cases. The concern is that there will be tyrants and despots who have committed atrocious and vile acts and who may not be subject to the jurisdiction of the court. What will happen then? This is an opportunity for us to say that in those cases we will be prepared to prosecute those crimes.

    As my noble and learned friend said, other countries have taken that view. I mentioned at Second Reading that my understanding then was that that was the position in relation to Canada and New Zealand. I mentioned also, I believe, Belgium and Germany. I hope that my noble and learned friend the Attorney-General will be able to confirm that that is the position. I am grateful for information received from the Lawyers Committee for Human Rights, New York, which has also drawn to our attention, as my noble and learned friend Lord Archer said, the position in relation to South Africa. Indeed, the member states of the Southern African Development Community have apparently similarly adopted as an intention an ICC ratification kit, which will include universal jurisdiction.

    Those countries have taken that line. The question is: what anomalies will there be if we do not take the same line, and what are the objections to our doing so? As my noble and learned friend Lord Archer said, an argument advanced at Second Reading was that we were not required under the statute to assume universal jurisdiction and somehow, therefore, we ought not to. I entirely agree with his observations on that. The list of statutes to which he referred indicates that we do take universal jurisdiction in some cases. There is no clear and single strand which links them and there is no reason in law why we should not take it here.

    But what, in clear terms, are the anomalies? First, two men who are alleged to have committed the same offence could be together in England. One will be subject to our courts and our law, and the other we could not touch: the one because he is a British subject and the other because he is not. In those cases, the International Criminal Court may not be able to touch them either. How absurd.

    The second anomaly is that the victims of these crimes may have been British subjects, and yet still we cannot deal with those crimes because the alleged perpetrator is a national of another country and the victim suffered abroad.

    Thirdly, we may even find ourselves, if I understand the position correctly, extraditing someone to another country—not to the country of nationality of the alleged perpetrator but to one of the countries have mentioned, New Zealand or South Africa. We are not ourselves prepared to assume jurisdiction but we may send this person to another country.

    Fourthly, and most frightening, is the anomaly of the distinction between crimes such as torture and genocide. Will we yet again see the horrific spectacle—which I believe we came close to with Pinochet—of arguing in a British court that if he killed people quickly, it was not torture and we have no jurisdiction; if they had slow and lingering deaths, that was torture and we had jurisdiction under the torture convention.

    What are the objections to this course? The practical objection is that we cannot try someone who is not here. That is straightforward; we do not have any ability to bring someone here, save through extradition. What about the problem that we may not have the evidence here? The guidelines of the noble and learned Lord the Attorney-General will deal with situations where there is not the evidence sufficient to meet a prosecution.

    There is a middle course—and I, like others, look forward to hearing the Government's response—the Canadian course, which is to limit universal jurisdiction to the extent that there has at least been the connection that the perpetrator in that case in Canada has been here in the United Kingdom. I cannot see any reason why, at least in that case, we should not accept universal jurisdiction.

    At the end of the day, tyrants must know that there is no place for them to hide. The purpose of the Bill and the statute is that there should be nowhere for tyrants to hide. If there is to be somewhere that they can hide, let there at least not be somewhere for them to hide in this country. Let them know that in this country, at least, we will assume jurisdiction; that if they come here and try to hide here, they will find no peace.

    7.15 p.m.

    I support my noble and learned friend Lord Archer, my noble friend Lord Goldsmith and the noble Lord, Lord Avebury, who spoke from the Liberal Democrat Benches.

    I shall be very short. Unlike the noble and learned Lord, Lord Archer, and the noble Lord, Lord Goldsmith, I speak not as a Queen's Counsel but as a humble member of the lower profession. I think that it is quite wrong that there should be any chance of the escape from justice to which those noble Lords referred. The burden of proving that there is no risk of that falls squarely and fairly on whoever is to reply for the Government. I do not want to embarrass the Government, but I think that a case has been made out for them to think again about this important issue.

    Why have we not heard from the Conservative Benches? Are Members opposite not concerned about people being able to escape justice? I am mesmerised by their silence. I hope that my noble and learned friend will see an opportunity to reflect on this important issue. No one should be allowed to escape justice; and that is the risk that we run.

    It seems that if we are to have this provision, with all the caveats laid out by the noble Lord, Lord Lamont—doubts which I share on purely practical and possibly cynical political grounds, and on the ground that the provision could lead to more deaths and destruction than others—the case set out by the noble and learned Lord, Lord Archer, follows as night follows day. In this context, his point seems perfectly reasonable and fair. As I say, I have other doubts, but that is a different question. I am trying to narrow my view solely to the remarks of the noble and learned Lord, Lord Archer. I hope that the noble Lord, Lord Clinton-Davis, is now "unmesmerised".

    We have been challenged to make some comments. Perhaps I may do so briefly, as a layman, on the view expressed by the noble and learned Lord, Lord Archer. I very much hope that the Government will not be persuaded by what has been said.

    Perhaps I may make two points. It seems to me that there ought to be an element of reciprocality, notwithstanding what the noble Lord, Lord Avebury, said. The noble Lord talked about thresholds of violence. When one looks at the number of deaths in relation to the total population of Northern Ireland, it comes pretty close to the kind of threshold of violence and genocide that makes headlines in larger countries. We should see considerable disadvantages if American judicial authorities were to interfere in the affairs of Northern Ireland or to bring people before the courts of the United States for matters arising from the domestic problems of Northern Ireland.

    I am grateful to the noble Lord for giving way. There is substantial literature on what constitutes the threshold below which Article 3 of the Geneva Convention does not apply. I felt confident in stating that in the case of Northern Ireland that threshold had not been reached. However, in East Timor 200,000 people are reported to have been killed or to have died as a result of the invasion by the Indonesians, and that constitutes a third of the population.

    Of course the figure comes nowhere near that in East Timor. I did not suggest that it did. I merely suggested that if one looks at the population of Northern Ireland, a figure of one and a half million—some 3,000 dead—the number killed in relation to the population, and seen in relation to other countries to which the word "genocide" is applied, is not so different.

    The noble Lords, Lord Avebury and Lord Goldsmith, referred to the different treatment of people who came here and who might be charged with torture as opposed to those who would not be able to be charged with murder. They have a point. However, the weakness of that argument is that so much of it—this was implicit in the remarks of the noble Lord, Lord Goldsmith—depends on the doctrine of command responsibility, which we shall debate shortly. It depends on one or all of the assumptions that the accused was "intimately involved in what happened", "had the knowledge", "could have prevented", or "did order". Such assumptions are extremely difficult to prove in a country thousands of miles away from where tragic events may have taken place. It seems to me that justice has to be related to a time and a place.

    As the noble Lord, Lord Avebury, said, there have been some tragic examples of aid workers becoming caught up in—

    I am grateful to the noble Lord for giving way. Is it his view that one cannot have confidence in a British court to determine the difficult but important questions to which he refers?

    I am not sure that I would have entire confidence. For reasons that I shall not go into, I was very much shaken by some of the ways in which certain points were tackled in the most controversial case which was referred to in the noble and learned Lord's comments. I am sure that a British court would attempt to deal with the matter impartially; however, I do not see how a court can tackle the problem of knowing precisely what a government official, a head of state or a senior person in a foreign army knew, ordered or did not know.

    It is one thing to argue that such matters should be dealt with by an international criminal court—and many people, including the noble and learned Lord, Lord Lloyd, drew the lesson from the Pinochet case. They said that it illustrated the need for an international criminal court rather than attempting to deal with these matters through national courts or through action, for example, in the Spanish courts.

    Justice must be related to a time and a place. Notwithstanding some tragic incidents, as the noble Lord, Lord Avebury, said, involving aid workers, there are other examples of people going to countries and becoming involved in the politics of those countries. Tragic, wrong and atrocious things have happened to them. But at the end of the day the circumstances and the reasons why such events took place are best judged by the judiciary and the laws of that country.

    I am pleased to see my noble friend Lord Lester of Herne Hill in his place. My noble friend apologises for the fact that he was unable to be present earlier, and because he did not arrive for the start of this debate, he has not spoken in it. As was mentioned, he was detained on the affairs of the new Joint Committee on human rights.

    I want to make clear the complete support on these Benches for this group of amendments. This country has had a long tradition of territoriality as regards criminal liability. For most offences we could not even prosecute British subjects who had committed crimes outside the UK unless part of the crime or conspiracy to commit it had taken place here. But there has been a gradual departure from that approach. Sometimes it has been departed from in the case of sex crimes against children; but more often—and this is the important feature—it has happened in relation to the gravest crimes against international law. The noble and learned Lord, Lord Archer of Sandwell, gave a list to which I do not want to add.

    One Act which requires some comment is the War Crimes Act 1991. That Act was controversial. It was rejected by this House and was eventually passed under the Parliament Act. There were arguments that the legislation was retrospective. I understood them at the time and I do not know which way I should have voted had I been a Member of this House. However, I do not believe that to be correct. The war crimes that were the subject of the Act were plainly criminal under general international law, as are the acts that this Bill seeks to attack. Perhaps more convincing were the arguments on the lapse of time, on the difficulty of obtaining evidence, and so on, in the case of offences that must, at the very latest, have been committed more than 45 years before the War Crimes Act was enacted. But that does not apply in any way to the present Bill. Plainly, in any sense, it is not retrospective legislation. Although there may be a time lapse, there may well not be. Certainly, it is very unlikely that there will be anything like the period covered by the 1991 Act.

    For the reasons that have already been very eloquently expressed, the absence of universal jurisdiction for the courts of the United Kingdom is a major gap in the Bill. The amendments that we are discussing in this debate will concern only very grave crimes—such as, genocide, which is possibly the gravest crime known to humankind, war crimes and crimes against humanity. Surely it is right that we should not apply a principle of territoriality to this, but if we find on our territory those who are alleged to have committed these terribly serious crimes and if, for one reason or another, there is no possibility of the ICC exercising its own jurisdiction, we should exercise our jurisdiction in this country whatever the location of such crimes and whatever the nationality of the person alleged to have committed them.

    The only speaker in this debate who has spoken against the assumption of universal liability is the noble Lord, Lord Lamont. I have to say that I do not find his arguments remotely convincing. Reciprocality was one of them. I find no force in that argument. In the case of these exceptionally grave crimes, it seems to me that there is no reason why we should not claim responsibility for ourselves, quite irrespective of what may or may not happen in any other country.

    The point about command responsibility was also made. Of course there will be cases in which it is difficult to prove this; but, equally, there will be cases in which it is clear. If it is impossible to prove to the standard required by the court, the accused will, quite properly, be acquitted. However, if it is proved, surely it is right that the accused should be convicted by a court in this country. I hope most profoundly that the Government will be able to accept the principle behind these amendments on this occasion, and that they will give universal jurisdiction to the courts of the United Kingdom in the case of these quite exceptionally grave crimes.

    7.30 p.m.

    Before the noble Lord sits down, perhaps I may challenge him on one point. He said that the crimes about which we are talking are very grave. He mentioned genocide—of course, I agree with him in that respect—and war crimes. Some of the war crimes listed in Article 7 are, indeed, very grave. I have in mind crimes against humanity and war crimes. However, others, such as the forced movement of population, which involve a great deal of hardship, are not always grave in the general sense.

    Every partition that has taken place in the 20th century—there have been a great many of them—involved coercion and the forced movement of people. That was very regrettable for the individuals concerned, but it did not constitute a grave crime in the same category as genocide or anything of that nature. Does the noble Lord agree?

    No, I do not. It seems to me that the forced transfer of population, as was practised by Stalin when he removed many populations from one part of the former Soviet Union to an entirely different area, is very rightly described as "a crime against humanity" and, indeed, is a very serious crime.

    What about the Atatürk-Venizelos accord of 1923, which resulted in the Treaty of Lausanne and the enforced movement of about 3 million people?

    I believe that that was an historical tragedy. It was something that should never have happened. I am afraid that there are many cases where people move voluntarily for fear of what might happen if they stayed behind. The forced and compulsory transfer of populations is, and should remain, a crime against humanity.

    Will the noble Lord comment on Israel, which has such a deliciously decent reputation vis-à-vis the Palestinians, whom they have herded into ghettos, the Gaza Strip, the Lebanon, and all the other places? Alternatively, what about the Malaysian emergency, where we had to do it for the general good? I accept that we must be very careful in this respect. However, I do not believe that this subject is particularly germane to the amendments now before us. If we are to move into population exchanges, we must keep the record straight. It is not quite so simple. Venizelos is one such situation, and the beautiful record of Israel is another.

    I shall start with the question of Israel. Speaking as someone who is of Jewish descent on my father's side, I deplore many of the activities in which various Israeli governments have indulged over the 53 years, or so, since the creation of the state of Israel. Israel contains many people—

    I am grateful to the noble Lord for giving way. This could give rise to a most interesting debate and, indeed, has done so on other occasions. However, does the noble Lord agree that we are considering the Bill, and that we cannot change the statute?

    That is exactly right. I am most grateful to the noble and learned Lord for intervening. The debate has perhaps gone beyond the points with which we should be dealing. I shall not, therefore, continue.

    This debate has been raging for quite some time. Her Majesty's Government have given a great deal of thought and consideration to the issue. It has come as no surprise to us that a number of noble Lords have pursued the issue with such commendable vigour. The question of whether we should take universal jurisdiction in this Bill has been a matter of acute debate ever since we published the draft in August of last year. Should we use this Bill to provide for United Kingdom courts to take jurisdiction over ICC crimes, wherever in the world they were committed and whoever committed them?

    Members of the Committee will know that we have taken the view that it would be inappropriate for the UK to adopt the role of global prosecutor. The way that the ICC is intended to work is for states of the nationality of the accused, or on whose territory the crime was committed, to take jurisdiction and, failing that, the ICC. We continue to believe that the best place for an effective prosecution is the state of the accused where investigation and prosecution are likely to be most practical.

    However, I have listened most carefully to the points made by a number of noble Lords on all sides of the Chamber. I am very grateful to them for their thoughtful contributions. The proposals behind these amendments are commendably ambitious. It is not a practical proposition to bring cases in the United Kingdom courts where the crime and the criminal have no link to this country: the evidence is inaccessible, witnesses are hard to come by and successful prosecutions are almost impossible.

    We must also bear in mind why we are creating the ICC. As I said, it will operate with complementary jurisdiction. UK courts will be able to bring cases against UK nationals and crimes committed on UK territory. That principle should also apply elsewhere. It is the primary responsibility of the state of nationality of the accused, or where the crime took place, to bring the crime to trial. If they are unable or unwilling to do so, we are creating an ICC to step in. That is the whole purpose of the court. It is important that we do not over-extend ourselves to the point where we could be accused of undermining the very court we seek to promote.

    That said, I have listened with particular care to the examples given by the noble Lord, Lord Avebury, and to the hypothetical situations put forward by my noble and learned friend Lord Archer and by my noble friend Lord Goldsmith whereby a crime could be committed by a UK national and his non-British friend. They could commit a crime overseas together and return to the UK. The UK national could offer to provide a home for his friend. UK courts would not have jurisdiction over that friend because he was not a UK national. He may not be of sufficiently high rank to interest the ICC. His host country may not be one to which he can be extradited. Those issues have given us pause. Information about his crime might be available through British peacekeepers in the area in which he operated and his British friend may ultimately even want to testify against him.

    The possibility of that situation arising seems to us to be slight. However, the Government recognise the concern that is expressed. That being the case, and having considered all the arguments put forward during the debate, the Government are minded to bring forward amendments on this issue at Report stage.

    The amendments the Government intend to bring forward will not convey universal jurisdiction on UK courts but will give UK courts jurisdiction over UK residents. This builds on the precedent of the 1991 War Crimes Act. The Government's intention is to provide that any individual who chooses to make the UK his home from now on will be liable before UK courts for his actions overseas, which were crimes under this Bill, before he arrived here.

    When the Minister says UK residents, does she mean persons who are ordinarily resident in the UK or does that extend to people who come here in some other capacity as, for example, a visitor or a student, or the case that I mentioned, Colonel Yunus Yosfiah, who came here as a guest of the Ministry of Defence?

    Before the noble Baroness answers that, I hope that I may put the same kind of question in a slightly different way. Do I understand that the effect of the amendment would be similar to the situation in Canada, as I understand their statute, though less far-reaching than the situation in New Zealand? As I understand the situation in Canada, there is jurisdiction where after the time the offence is alleged to have been committed the person is present in Canada. Is it based upon that notion of presence?

    7.45 p.m.

    The definition of residence is a difficult and complex one. A number of Members of the Committee will know that it is interpreted in different ways in different statutes. One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident. It is right that the decision on whether someone is resident here should be made by a competent court with the benefit of all the evidence in a particular case. The concept of residence in the UK also appears in the War Crimes Act. No definition is provided for that and it does not appear to have affected the operation of that Act.

    I deal with the point raised by the noble Lord, Lord Lester. We do not have the precise definition that is being used by the Canadians. It looks as if they take the view that if someone is present within their jurisdiction that suffices. I cannot say at this stage whether we shall go down that road. It seems to us that the use of the term "residence" gives us a certain flexibility that would be capable of being interpreted in a purposeful way when one deals with different situations as they may arise on a case by case basis.

    The argument as to whether someone is resident is a difficult one. Would it not be much easier for the noble Baroness to explain to the Committee that anyone who is here permanently or on a temporary basis should be subject to the will of the court? I hope that she will answer in the affirmative.

    As I said, this is a complex situation. The Committee may remember the case of Levene, the Inland Revenue case, in which a few days were considered to be appropriate. In other cases that is not so. The term "residence" appears to give us the kind of flexibility—

    The noble Baroness seems to be making the position much more complicated than it need be. If a person has to argue as to whether or not he is a resident and quotes several different statutes with different descriptions of resident, that seems to me an unnecessarily complicated way to do things. As the noble Baroness knows, I have major doubts about the whole concept of the Bill but at least there is a logicality to what Members of the Committee opposite say. However, the moment you introduce the concept of whether someone is or is not a resident, it does not seem to me that you bring any clarity to the matter. We must have clarity in the criminal law.

    I am grateful to the noble Lord for giving way. I hope that I may acid a further point, having raised the matter in the first place and having argued the case of Shah in the House of' Lords about what is meant by ordinary residence. Will the Minister carefully consider the unnecessary complexities that would be introduced by bringing in residence or even ordinary residence? Will she also consider with her colleagues how undesirable it would look for the United Kingdom to have a different and narrower test than, for example, the Canadian test which seems to me a fair balance of argument and rather less wide-ranging than the New Zealand test? Could one consider the wider Commonwealth attitude taken in other common law countries in arriving at a workable solution to the problem? I greatly welcome what she said. What we are all trying to do is to find a workable test.

    We shall, of course, consider that before tabling our own amendments. However, I reiterate that the concept of residence does not seem to have caused problems in relation to the War Crimes Act. No definition was provided there but it has worked well. For the moment that is the way we are thinking. I can certainly reassure the noble Lord that we have taken on board everything that has been said. That will be factored into the way in which we frame any amendment on Report.

    The important issue is that anyone thinking of coming to this country should know that we shall not be a haven for war criminals and that they will be subject to the full force of the law. That is the import of what we want to achieve.

    I am grateful to all noble Lords who have participated in the debate, particularly those who supported the amendment. The sole exception was the noble Lord, Lord Lamont. I was a little surprised to hear my noble friend Lady Scotland using precisely the argument which underlay all that the noble Lord said. I see him nod with satisfaction. I think that they are both wrong.

    What the noble Lord said in so many words at the end of his intervention was that offences are better tried in the country where they are committed. Of course they are. That is not the issue. No one disputes that. What is important is that if they are not going to be tried there, they should be tried somewhere. Yet most of the offences with which we are concerned are not likely to be tried in the country where they are committed. The question then arises: how do we ensure that they are tried somewhere? With such horrific offences, it is vitally important that they should be tried.International opinion cries out for it. But, perhaps even more importantly, it is important that future potential victims should know that someone cares for them.

    I am grateful to my noble friend for the consideration which the Government clearly have given to the matter. The Minister said that the concept of residence introduced an element of flexibility into what was proposed. That is precisely what worries some of us. You can be too flexible when you are dealing with the criminal law. But the noble Baroness has held out the hand of friendship and I can do no less than wait to see what she has in it. In those circumstances, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment Nos. 109 to 111 not moved.]

    On Question, Whether Clause 51 shall stand part of the Bill?

    Perhaps I may ask the Minister to clarify one point. I understand that the Bill widens the definition of the crime of genocide beyond that of the Act of 1969. I should like to know in what respect that happens. I ask for this reason. As has been said, genocide is the most horrible and terrible crime which canbe committed. However, in my experience it is a word which has become slightly debased by over-usage in other crimes. Even in legal circles, I have noticed the term "genocide" being, to my mind, used somewhat exaggeratedly. That is not to say that there were not other crimes involved, but I take the term "genocide" to mean the killing of a class of people. I should be interested to know in what way and why this definition—it is already being strained—is being widened.

    I hear what the noble Lord says. Genocide is fully set out in Article 6 of the Rome Statute. It provides that for the purpose of the statute genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethical, racial or religious group. It sets out five elements: killing members of the group; causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. The definition of the crime is the same and is clearly stated there.

    Clause 51 agreed to.

    I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage of the Bill begin again not before 8.55 p.m.

    Moved accordingly, and, on Question, Motion agreed to.

    House resumed.