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Lords Chamber
12 February 2001
Volume 622

House Of Lords

Monday, 12th February 2001.

The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Lincoln.

Local Government Finance White Paper

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asked Her Majesty's Government:

When they intend to publish their White Paper on local government finance.

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My Lords, we are currently considering over 16,000 responses to the local government finance Green Paper. We shall announce our decisions on the reform of local government finance in a White Paper to be published later this year.

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My Lords, I thank the Minister for his Answer. I note that he mentioned "later this year". A similar reply was given previously by his noble friend Lady Farrington. Does the Minister agree that any changes, whether to council tax bands or in the nature of a revaluation, will give rise to large numbers of winners and losers—indeed, considerable losers in London and in the South East? In the interests of householders, does the Minister agree that the sooner the Government's intentions are known the better?

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My Lords, bearing in mind that local government finance is an extremely complicated area and the fact that, whatever you do, there will almost certainly be winners and losers, noble Lords will understand why we are taking our time over this consultation. Indeed, 16,000 people have bothered to respond, so there is much interest in the matter. We shall assess that response in relation to council tax banding. Although that aspect was not specifically covered in the consultation, we have received responses in that respect and in relation to the other strategic issues outlined in the Green Paper.

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My Lords, does not my noble friend the Minister think it worth while to take some time over this consultation rather than rushing into a process and introducing something like the poll tax that the previous Conservative government introduced some time ago?

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My Lords, as happens so frequently with my noble friend, he has left me with the feeling that I wish I had said that. My noble friend is correct in what he says. This is an extremely complicated area; indeed, the poll tax saga was an indication of the difficulties involved. I believe that we are right to take our time to get the matter right.

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My Lords, can the Minister tell the House why the concept of floors and ceilings, which I understand is part of the Green Paper, has been introduced as part of this year's settlement process before any adequate assessment could he made of the consultation replies?

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My Lords, the Government's responsibilities in the matter are clear under local government finance provisions. In order to avoid major changes that would impact on council tax payers, we felt it necessary to introduce floors and ceilings in relation to this year's settlement. This has been done in the interests of stability and in order to avoid sudden changes to council tax payers.

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My Lords, in the interests of clarity, as well as the fairness to which the noble Lord, Lord Bowness, referred, does the Minister agree that it is important to ensure that local authorities have the right degree of independence and the opportunity to take decisions about their communities? If the Minister so agrees, does he also agree that for the Government to increase a specific grant at the expense of general funding—in other words, ring-fencing and reducing local discretion—is not the right direction in which to move?

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My Lords, one of the themes of the Green Paper is to look at ways in which local authorities should be able to extend their flexibility and make choices for themselves on how they spend the money available to them. In general, I agree with the noble Baroness's first point. However, there are particular areas of government policy where clear objectives are needed and where ring-fenced grants may continue to be appropriate—that is as well as, and not instead of, providing increased flexibility to local authorities.

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My Lords, is the Minister aware that the rise in specific grants in the last settlement is higher than the rise in revenue support funding? Does that support what the noble Lord is now saying?

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My Lords, in my naivety, I thought that the noble Baroness was addressing the subject matter of the Question—namely, the forward pattern of local authority finance. If the noble Baroness is addressing history, then clearly there are parts of government policy under the present system where it is best to achieve objectives through ring-fenced financing; for example, on nursery education, which would not have been possible had we not extended the ring-fenced facilities over the past year and, indeed, during this current year. However, in the longer run, my previous answer stands.

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My Lords, should not government grants to local authorities always be ring fenced? Surely that would leave the raising of money from community charges to be dealt with as local authorities decided.

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My Lords, that seems to me to indicate a degree of centralisation in the approach to local government finance, such as was endemic at various times during the term of the previous administration and from which we wish to move away. We do not wish to see the rigidity applied whereby central government lay down specifically and precisely how local government should spend its money. As I said, there are specific objectives in respect of which we must do so, but, in general, we believe that local authorities are responsible for making their own decisions within the allocation given to them by the Government and as regards the money raised through their own resources.

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My Lords, as a matter of clarification, is the Minister saying that the ring-fenced grant is always separate from, and additional to, the general grant so that it in no way detracts from the general grant? I am not quite sure on that point.

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My Lords, under past policies elements within the general grant have been ring-fenced. The intention is to move to a broader, pooled budget under the general grant to which future ring-fenced finances would be separately allocated.

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My Lords, when the noble Lord says "ring fence", does he mean what I mean when I say "hypothecated"?

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My Lords, I am not sure what the noble Lord means when he says "hypothecated". When I say "hypothecated" I tend to refer to central taxation which the Treasury on occasion—very rarely—allows individual departments to allocate for specific purposes. Ring-fencing relates to the control or otherwise which central government have over local government allocations.

Female Genital Mutilation

2.43 p.m.

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asked Her Majesty's Government:

In the light of the report by the All-Party Parliamentary Group on Population, Development and Reproductive Health on female genital mutilation, when they will take steps to implement some or all of the 12 recommendations in the report.

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My Lords, I was pleased to participate in the launch of the all-party group's report in November and to underline the Government's commitment to help stamp out this appalling practice. We are working actively to this end, both in the United Kingdom, where the practice is outlawed, and in our international development work. The report contains a great many detailed recommendations and useful suggestions which are consistent with work that we are already doing and will continue to do in the future.

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My Lords, I thank my noble friend for that encouraging Answer and declare an interest as patron of the London Black Women's Health Action Project. Is my noble friend aware that the public in this country know virtually nothing about female genital mutilation and its disastrous and long-term effects? Does she agree that a campaign might be mounted to raise public awareness?

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My Lords, first, I congratulate my noble friend on constantly bringing this issue to the attention of the House as a patron of a London women's health group. I agree with my noble friend that raising public awareness is very important. The only way that FGM will eventually be eradicated is through a continuous programme of education and information aimed at the grass roots level. The Government are taking steps to promote that kind of work, for example, through FORWARD, an NGO actively working with communities to bring an end to this practice.

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My Lords, is the Minister aware that the United Nations Status of Women Commission looks on this as a serious issue and has done so for a long time? Has she seen the report in the newspapers of the two young Kenyan women who won a landmark court decision which enabled them to refuse to suffer this indignity and abuse in their own country? Does she think that that might be helpful not only in terms of publicity but also in terms of helping to change attitudes in the countries where this practice is so common?

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My Lords, I am aware of the various UN statements which cover FGM, including the statements in the Beijing Plus Five document and also through CEDAW. In relation to the two young Kenyan women, we are constantly working with different countries to encourage them to outlaw FGM because then it will be possible to deal with the situation not only in the UK context but also in the home country. I agree that publicising that case might well be one way to raise awareness and begin the process of changing attitudes in various communities.

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My Lords, can my noble friend the Minister tell us in which areas of the UK FGM is most prevalent? What is being done at a local level to combat this problem?

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My Lords, an estimated 15,000 girls in the UK are considered to be at risk of FGM. The majority of these are in families who are settled in inner-city areas, for example, London, Birmingham and Cardiff. A good example of a local level response is the North West London African/Somali Well Women Clinic, which was set up by the Central Middlesex Hospitals Trust. The clinic provides comprehensive care, including, for example, surgery to repair and sometimes reverse damage caused by FGM. It is important that we ensure that other trusts are aware of the kind of work that that trust is doing and promote and spread good practice.

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My Lords, this is a serious and important subject. Alas, the report is not available either in the Library, the Printed Paper Office or from the all-party parliamentary group so I am unable to ask the Minister about its contents. However, we all agree that female genital mutilation is a harmful and cruel practice. Does the Minister also agree that it is deeply ingrained in the culture and religion of some of the developing countries and if it were banned it would be pushed underground? A new approach is being used by organisations such as UNICEF to target community leaders, including Islamic sheikhs, elders, women, youth, health workers and artists to develop a consensus on the best way to approach the problem. Do the Government agree that education and support are better tools with which to push for that change rather than a ban? The noble Baroness told the House in November that £400 million had been committed by the Government to support primary education programmes. How much of that money has specifically been targeted to FGM?

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My Lords, we think that education and support are important. However, we also think that the legislation which we have in the United Kingdom to ban FGM is important. I totally agree with the noble Baroness that this practice is deeply ingrained in the cultures of some communities. However, we cannot get away from the point that FGM is mutilation. While it is important to guard against stigmatising communities, raising awareness within communities of that mutilation and ensuring that young girls understand that they do not have to be mutilated in that way is an important part of our strategy.

I shall draw to the attention of the all-party group that its report is not available. I think that it will be concerned to know.

The noble Baroness also asked about DfID funding. We support a number of different initiatives. We support the World Health Organisation training programme on prevention of FGM; it is operating in a number of countries, including Egypt, Kenya and Tanzania. We also give £400,000—I think that the noble Baroness, Lady Rawlings, referred to £400 million—for similar work to the Inter-African Committee on Traditional Practices.

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My Lords, is my memory correct that the noble Lady, Lady Kinloss, took a Bill through the House of Lords—it subsequently became law—making FGM illegal? If so, can the Minister say how many people have been prosecuted since the inception of that Act for operating in that way on young people?

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My Lords, I think that the noble Baroness, Lady Trumpington, took the Bill through the House. There have been one or two complaints but no prosecutions to date because of the difficulty of getting data in relation to the matter.

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My Lords, I am grateful to the Minister for remembering—it was long before her time as Minister—that I took the Bill through the House of Lords. Since the Bill was passed and the practice became illegal, have there been any prosecutions?

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My Lords, as I replied to the noble Countess, Lady Mar, there have been no prosecutions.

Written Answers: Reference To Departmental Websites

2.52 p.m.

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asked Her Majesty's Government:

Whether they will refrain from answering Parliamentary Questions for Written. Answer by referring the Peer who asked the Question to a

departmental website, instead of including the information in the Answer and publishing it in the Official Report.

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My Lords, it has been the practice of successive administrations to refer to departmental websites when appropriate. Naturally, access to all such websites referred to are available within the Libraries of the House as well as to the public. This is in line with the Government's stated aim of encouraging the increased use of electronic facilities.

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My Lords, I thank the Minister for that reply. Perhaps I may point out that I asked for a Written Answer to the simple and important Question: how many people claimed asylum in 2000? The Answer was that I could get the information from the departmental website. I did so by applying to a lady in the Library who produced, an hour or two later, six pages of detailed statistics. The website was listed as www.homeoffice.gov.uk/rds/index.htm. I mention that in case the public want to know. Within those six pages the answer to the simple question was on page 3. The figure was 76,040. Is it not in the public interest that that should be in Hansard instead of people throughout the country having to grab the information somehow from a departmental website of which they may not have the reference?

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My Lords, I am enormously impressed by the noble Lord's grasp of modern technology. I am enormously impressed by his grasp of the address of the Home Office website. I was aware of the Answer to which he has just referred. I had the opportunity of speaking to my noble friend Lord Bassam of Brighton who answered it. The noble Lord was keen that there should be the most detailed and thorough Answer imaginable. However, having discussed it we agreed that it might well have been better if the figures which answered the Question had been given in Hansard as well as on the website.

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My Lords, will the Minister give an undertaking that Her Majesty's Government will take another look at this Question? Traditionally, it has been the function of the executive to assist Members of Parliament whether in this House or another place. The obligation is not discharged by the executive, which in so doing exhibits a curious attitude towards Parliament. It does not lie in the mouths of the executive to put off or in any way obstruct the desire of Members of this House or another place. It should answer fully the Questions put down on the Order Paper.

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My Lords, the complaint cannot be that we did not answer the Question fully because pages of material were made available in answer. However, as I made clear in answer to the supplementary question of the noble Lord, Lord Renton, my noble friend Lord Bassam and I agreed that it might have been better if the specific figures had been given in the Answer as well as referring the noble Lord to the website for greater material.

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My Lords, does the method by which the Government replied to the Written Question of the noble Lord, Lord Renton, have anything to do with reports that Internet studies are now to be given priority over the reading of Shakespeare?

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No, my Lords; it has nothing to do with that but relates to the Government's desire to try to improve electronic communication. I do not resile from the point made in reply to the supplementary question of the noble Lord, Lord Renton: although there was much information on the website, it would have been more convenient to Members of this House if the specific figures had been given in the Answer. I have made that clear.

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My Lords, is the Minister aware that in many respects the Home Office website is a much easier place to access information than Hansard? After a few weeks one cannot remember the date of the Answer. Is the Minister aware that the Home Office website has been improved enormously in recent months? Not only can one obtain the statistics for which the noble Lord, Lord Renton, asked but also many other important pieces of information which are not readily available to the public. However, the public can access the websites for free in local libraries or elsewhere.

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My Lords, that is a compliment to the noble Lord, Lord Bassam, who is the modernising Minister in the department.

There is a serious point here. As a result of there being a website, a vast amount of information about government departments is more accessible than otherwise would have been the case. I entirely agree with the noble Lord.

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My Lords, does the Minister agree that it is the responsibility of Ministers to ensure that the Answers given are correct? It is not a question of convenience but of principle. Answers should be given in the Official Report and then placed on the website, and not the other way round.

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My Lords, questions of judgment are involved. My noble friend Lord Bassam and I agree that it would have been better if the numbers had been given.

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My Lords, I thank the noble and learned Lord and the noble Lord, Lord Bassam, who signed the Answer as "Lord Steve Bassam". That sounds awfully friendly but I did not know that he was the son of a Duke or a Marquess.

In answer to the noble Lord, Lord Avebury, the public have access to Hansard and although they may have access to websites and so on they may not have the exact reference required. In any event, as my noble friend Lord Crickhowell, said, is it not much better that the well established parliamentary practice relating to constitutional importance should continue? I am glad that it will.

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My Lords, it is surely right that the figures should be given; and that there should be a reference to the website where more material can be found.

Uninsured Driving

3 p.m.

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asked Her Majesty's Government:

What steps are being taken to deal with the problem of uninsured driving.

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My Lords, we are taking the offence of uninsured driving very seriously. The police have powers to stop vehicles to check insurance and other matters. Every year, more than 250,000 drivers are convicted of driving without insurance. The Government are supporting the insurance industry in setting up a computerised insurance database with links to the vehicle register. That database should be operational later this year, enabling the police to detect and prosecute more uninsured and unlicensed drivers at less cost.

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My Lords, I thank my noble friend for that response. Is he aware that, although the numbers prosecuted seem to have increased, the standard fine is only £150, whereas the average insurance premium is £350? Clearly there is an incentive for miscreants not to insure. Should not something more be done about the level of the fine, which is much too low for the offence?

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My Lords, I take my noble friend's point seriously. The maximum fine is £5,000. The licence can be endorsed by six to eight points and disqualification is discretionary for the court. However, in practice my noble friend is correct—the average fine is £210. That is higher than for other motoring offences but it is still much lower than the maximum. Last year, the courts imposed full disqualification in 28,580 cases. People should realise that the courts have powers to deal with that offence. In addition, the Home Office is currently engaged in consultation on penalties for motoring offences in general, including this one.

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My Lords, does the Minister agree that, although the Motor Insurance Bureau has to pick up the tab for uninsured drivers, the penalties are ludicrously low given the total financial disaster that befalls a family whose breadwinner, for example, is killed by an uninsured driver?

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My Lords, I accept that there is concern about the level of the penalties. As the noble Lord said, there is a safety net in most cases, operated by the insurance companies under the Motor Insurance Bureau, but the cost has to be handed on to the insurance companies and thence to other insured drivers who are obeying the law.

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My Lords, I understood the Minister to say that the department was helping the insurance industry by setting up a database at the Driver and Vehicle Licensing Agency in Swansea. Why does not that fall foul of the Data Protection Act?

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My Lords, we have discussed the issue with the data protection authorities. Access will be by special agreement with the police authorities to enable particular inquiries to be pursued. The database will not be available to the general public.

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My Lords, it is not clear to me from what my noble friend said whether there are firm plans to raise the minimum fine.

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My Lords, the actual level of the fine within the maximum is always a matter for the courts. I said that the Home Office was currently engaged in a wide consultation about the nature of penalties in motoring offences, including this one. If noble Lords are interested, I think that the closing date for consultation is 9th March. That relates particularly to the seriousness of the offence of uninsured or unlicensed driving.

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My Lords, is my noble friend saying that there is no minimum fine?

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My Lords, there is rarely a minimum fine. There is a maximum fine of £5,000.

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My Lords, when the department does spot checks for road tax, which one occasionally sees taking place, are checks also made on insurance? Is there a correlation between those who do not pay their road tax and those who are not insured?

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Yes, my Lords, there is an almost automatic correlation in that a driver cannot buy a road tax disc without showing a valid insurance certificate. The two offences are frequently related.

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My Lords, is there a further correlation between those who do not pay their road tax, those who are not insured and those who abandon vehicles by the roadside? How much of a problem is caused by abandoned vehicles and what is my noble friend doing about it?

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My Lords, although I personally am doing little, my colleague Keith Hill and I are ensuring that the police, the local authorities and the DVLA co-operate on an apparent increase in the number of abandoned vehicles around the country. There are substantial powers, but they need to be co-ordinated and we need to target the areas of worst offence. A couple of pilot projects will be launched shortly to improve that co-ordination. All the authorities need to address the issue.

Business

3.5 p.m.

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My Lords, at a convenient time after 3.30 p.m., my noble friend Lady Blackstone will, with the leave of the House, repeat a Statement being made in another place on the schools Green Paper.

Criminal Defence Service (Advice And Assistance) Bill Hl

Read a third time, and passed, and sent to the Commons.

International Criminal Court Bill Hl

3.6 p.m.

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My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—( Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Clause 23 [ Provisions as to state or diplomatic immunity]

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moved Amendment No. 73:

Page 13, line 9, leave out subsection (4).

The noble Lord said: I shall speak to the amendment on behalf of my noble friend Lord Lester and at his request.

The amendment would remove the discretionary power of the Secretary of State to direct that proceedings under Part II shall not be taken against a person to whom subsections (1) and (2) apply. Article 27 of the statute provides that:

"This Statute shall apply equally to all persons without any distinction based on official capacity".

That includes heads of state or government. Therefore, in accepting Article 27, a state party to the ICC Statute has already agreed that the immunity of its representatives, including its head of state, may be waived before the International Criminal Court and that their status is not a barrier to their arrest and surrender to the court.

A non-state party to the ICC Statute has not accepted that provision and the immunity of their diplomats remains intact unless there is an express waiver. If there is a waiver of immunity in relation to a request for a diplomat's surrender, that waiver is treated as extending to proceedings for his arrest and surrender to the ICC.

Article 98 of the statute says:

"The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity".

The court would not have the power to ask the United Kingdom to breach our obligations relating to state or diplomatic immunity.

If any case arises as to the status of a person named in the request made by the ICC under Clause 2, the determination of his status will be a matter for the court, not for the state party—in this case the United Kingdom—that received that request for provisional arrest and surrender.

The subsection that we are dealing with assumes that there will be consultations between the Secretary of State and the ICC but leaves the Secretary of State with an unfettered discretion to direct that further proceedings shall not be taken, whether or not the person concerned is a national of a state party.

If under international law there is any doubt as to the nationality or immunity of the person concerned, I submit that the correct procedure would be, first, for the Secretary of State to draw the attention of the International Criminal Court to the evidence, showing that that person is a national of a non-state party and that he has an immunity recognised in international law. If the court agrees that the person has immunity, it can then apply to the non-state party for a waiver. If it does not obtain the waiver, the court has the power, under Article 58.4 of the statute, to cancel the warrant of arrest. Clearly it would wish to exercise that power if it was satisfied that the accused had the status which he claimed.

If, after examining the evidence, the court disagrees with the person's claim to the nationality concerned or with his claimed immunity, that is a matter for the court and not for the Secretary of State. The accused may still challenge the jurisdiction of the ICC on any of the grounds of admissibility which are mentioned in Article 17 of the statute. The non-state party which has refused to accept the jurisdiction of the court under Article 12.3 may also challenge the admissibility of the case under Article 19.5. If that were to happen, presumably the competent court in this country would adjourn the hearing of any request by the ICC for the delivery of the person concerned under Clauses 2 or 3 of this Bill until the ICC had determined the question of admissibility.

Perhaps I may refer to the relevant New Zealand legislation; that is, the International Crimes and International Criminal Court Act 2000. The sequence of events that would occur when any question arose of conflict with other international obligations is spelt out. There, the Attorney-General must inform the ICC of the supposed conflict and the Minister has the power to defer compliance with the ICC's request until the ICC advises him whether or not it intends to proceed. In the event that the ICC tells the Minister that it intends to proceed, the request must be executed. The ICC, and not the Minister, has the final word, and the same principle should apply in this country.

This particular subsection has far wider implications than for the UK alone. Other countries will be using our legislation as a model: countries in the Commonwealth; perhaps countries in the European Union; and countries further afield. I can only imagine that if some of those countries gave a power to their Ministers equivalent to the one set out in this legislation, it would not always be exercised in the spirit of the statute. If, for example, Iraq is a non-state party which has an agreement with other states to grant immunities to Saddam Hussein and other leading figures in the regime, those other countries may be able to refuse co-operation with the ICC by saying that they have bilateral treaties with Iraq which prevent them complying with requests for arrest and delivery of the alleged criminals.

What would happen if a question arose as to the nationality or diplomatic status of the accused? First, if the accused is a person such as is mentioned in subsection (1), no argument exists as to jurisdiction. If, on the other hand, he is a citizen of a non-state party, then normally a waiver would have been obtained and certified by the Secretary of State under subsection (3).

However, let us suppose that at this point the accused claims that he is not a citizen of the state which issued the waiver but of some other non-state party and that he possessed an immunity as a result of his position in that state. Either way, the Secretary of State would consult the ICC. If they agreed that the accused was what he claimed, the ICC would cancel the warrant. If, on the other hand, they were both satisfied that he was not qualified, the proceedings would continue.

Therefore, the only circumstances in which the power might be used would be either if the ICC disagreed with the Secretary of State or if it wished to determine the validity of the claim for itself rather have it done for it by the Secretary of State. That does not constitute full compliance with the statute and I hope that, on reflection, the noble and learned Lord will agree to reconsider the matter. I beg to move.

3.15 p.m.

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I hope that the noble Lord, Lord Avebury, will forgive me for the fact that I exhibited some surprise when he rose to move the amendment. As I was the only person present whose name appeared to the amendment, I believed that the task would fall to me. However, there is nothing personal in that and I do not in any way question the noble Lord's right to move it. Indeed, I rise to support him.

Perhaps I should say at the outset that the noble Lord, Lord Lester of Herne Hill, and my noble friend Lord Goldsmith, who also put their names to the amendment, asked me to convey to your Lordships their regret that they cannot be here until later in our proceedings. Fate decreed that the amendment was not reached during the first day of the Committee stage when they were present throughout and that it was reached before they were able to be here today.

Perhaps I may also say at the outset that I do not resile from one word that I said at Second Reading. I believe that the Government are warmly to be commended on the lead which they gave in the negotiations leading to the statute, on their determination to ratify the statute as soon as possible so that we shall not dissipate the influence that we have acquired by arriving late at the table, and, accordingly, on finding time for the Bill. Therefore, I have no mission to complain about a gift horse.

I support the noble Lord, Lord Avebury, because, together with my noble friends, I seek to give the Government's artefact an extra polish. I confess that I find it disappointing that successive British governments of whatever complexion have played a heroic role and have then gone out of their way to silence the chorus of approval by ensuring that attention is concentrated not on their achievement but on the defects.

As the noble Lord, Lord Avebury, said, one consequence of Article 27 is that a state which ratifies agrees to waive diplomatic immunities in respect of its own officials in proceedings before the court. That is given effect to by Clause 23. Of course, a statute cannot deprive a potential defendant of diplomatic immunity if the state in respect of which he claims it is not a party to the statute. However, as the noble Lord said, there is provision for that state to waive the immunity if it considers it right to do so because the immunity is there for the benefit of the state which is being served and not of the individual. Clause 23 gives effect to that provision, too.

Those provisions are a necessary corollary of the whole purpose of the statute. Those who commit monstrous offences which fall within the court's jurisdiction are not confined to private soldiers and minor officials. Often they are acting in accordance with a deliberate policy initiated by senior politicians and officials. To provide that they shall be immune from the process would be to frustrate what it is there to achieve. The international tribunals for Yugoslavia and for Rwanda equally provide that there shall be no defence of diplomatic immunity.

That is one of the many ways in which the modern world subordinates the interests of individual states to the needs of the global community. Last year, Mr Kofi Annan expressed that sentiment in a speech to the General Assembly. He said that in a growing number of challenges, the,
"collective interest is the national interest".
Therefore, as I understand it, we are all agreed on the principle to which Clause 23 gives effect.

However, as the noble Lord, Lord Avebury, said, for a reason which is not clear—at least, to me—the Bill proceeds to explain that it does not really mean what it says. Although in those situations the right to rely on diplomatic immunity is withdrawn, nevertheless the Secretary of State may direct that the proposed defendant shall not be delivered up to the court. That is a curious provision for at least three reasons.

First, it appears to frustrate the whole purpose of Article 27. Those who might otherwise have relied on diplomatic immunity shall nevertheless be subject to the court's jurisdiction, but only if the Secretary of State decides that they shall.

Secondly, as the noble Lord, Lord Avebury, said, it introduces an executive discretion by a politician into a judicial process. The Secretary of State is not required to give reasons for his decision. If he declines to explain how he arrived at his conclusion, no one has the power to second guess him. Thirdly, it opens the door to diplomatic pressures by other states, including the state of which the prospective defendant is a national, in a process which is specifically designed to protect the rule of law from diplomatic pressures.

The Government gave a commendable lead in the discussions prior to the statute in arguing that the prosecutor should not be subject to political interference, yet that is precisely what the Bill now seems to propose. I understand that implementing the statute may sometimes cause a strain in our relations with another state if that state does not wish to see one of its nationals answerable for his conduct. But I should have thought that in that situation it would make life easier for the Government if they can respond to representations by saying that they have no power to interfere with the process.

The Bill could place the Secretary of State in a situation where he must either refuse the request of the other government to intervene, although he has power to comply with that request, or obstruct a prosecution which the British public and world opinion might wish to see undertaken. That is not a method of protecting the Government from embarrassment; it is a recipe for embarrassing the Secretary of State and creating diplomatic difficulties.

I believe that is the view of the many distinguished NGOs in the field of human rights which have addressed some of us on this subject: Amnesty, Redress, the Medical Foundation for the Care of Victims of Torture and the Parliamentary Group for World Government, which is represented in this House, all of which applauded the Government's work on the statute but are now spending more of their time pressing for changes in the Bill. That is a pity. Those of us who tabled the amendment did so because we want the process to work successfully. We did so not to embarrass the Government but to spare them embarrassment. We are all on the same side. I hope that the Government will listen.

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This is an important issue and an interesting part of the Bill. I am extremely glad that the two noble Lords—a powerful duo—have jointly moved the amendment, if that is what occurred, and enabled us to pursue one or two matters which need clearer answers than we have had so far.

Discretion is given to the Secretary of State in subsection (4), which the noble Lord, Lord Avebury, wants to see removed, that after consultation with the ICC, proceedings under this part of the Bill can be stopped. In other words, the challenge to immunity can be challenged and immunity re-asserted. We need to know from the Minister how far the discretion goes and under what circumstances the Minister thinks it will be used. If it is used, will that be reported to Parliament and that the Secretary of State had so directed under his powers in subsection (4)?

Could one speculate a little as to whether it would be used to protect senior officials, senior Ministers, or even a head of state? The Bill is not retrospective but we can see situations in the recent past where our own senior Ministers, indeed, the Prime Minister, have carried responsibility for actions which have involved the killing of civilians and the intentional bombing of targets which may or may not be genuine military objectives. I have personal views that such actions were entirely right and proper, but many people have personal views that they are not; that they should be challenged and that they constitute war crimes. This might be a place where this barrier—we shall come to others which appear to exist in the Bill—could stand in the way of charges being raised, warrants being issued or even an investigation being initiated against a senior official who, in our view inside this jurisdiction, had acted properly and in the service of the state.

We need much more clarification. As for this being a model for other countries, I have to say that in general I hear the idealism of the noble and learned Lord, Lord Archer. Indeed, we heard similar idealism from the noble Lord, Lord Goldsmith, last week on the idea that if we follow certain lines and reduce our safeguards against certain unwelcome developments, even safeguards against our national interest, other countries will follow suit and we would have set a good example.

That is high idealism and it is splendid. However, I feel that with some little experience of international affairs it is completely unrealistic. The real world is not like that. There are many countries which have not yet signed, and even signatories such as Iran, which would not take the slightest notice of models and examples that we set. They would look after their national interests, certainly protect their senior officials and insist on immunity with gusto.

To turn the argument on its head, this particular case is one example which, if left in the Bill as the Government clearly want, will be a model that all the countries will follow. They will follow models which enable them to have more protection, more safeguards, more immunities and more guarantees so that they can frustrate the international jurisdiction, international power and the intentions behind the Bill which the noble and learned Lord, Lord Archer, and others, have so graphically described.

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I am grateful to the noble Lord. If, as he says, it is true—it may well be—that if the provision we seek to delete is left in, other countries will regard it as a model, does he regard that as an argument for leaving it in or for taking it out?

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I regard it as a case for looking at our own interests and leaving it in, not as a case for thinking too much about what will or will not be a model. I have tried to say that the general argument, which was used by the noble Lord with great sincerity, that other countries—perhaps some of the non-signatories which will become signatories such as China—will be influenced for one second by what we leave in or take out of the Bill, is a well-meaning fantasy. However, I also say that this case might be one example which they will follow. I do not know whether or not they will. Even if we leave it out, they will probably put it in again if they have similar legislation.

On balance, my own view starts from our own interests in the international context with a desire to make the Bill work. Nevertheless, I realise that in certain cases the discretion must exist. Therefore, I am not on the side of the amendment, but I should like some of the questions raised to be answered.

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I sympathise with what motivates the noble Lord, Lord Avebury and the noble and learned Lord, Lord Archer of Sandwell. However, they proceed on a mistaken analysis of what the statute brings about and what Clause 23 deals with.

The Rome Statute brings about a circumstance in which immunities shall not be a bar to prosecution before the ICC in respect of those states which have signed and ratified, because by signature and ratification they agree to the provision of non-immunity. This clause provides that diplomatic and state immunity cannot shield representatives of states parties from arrest and surrender to the ICC. That is the first proposition and the first step.

However—this is where the mistaken analysis creeps in—the same is not true of non-states parties. By virtue of subsisting international law which binds Her Majesty's Government, we have to accord diplomatic and state immunities unless the state concerned has agreed to waive them. Two matters follow from that. First, we hope that as many countries as possible will become states parties to the statute. Secondly, we hope that the remainder will not permit immunities to protect their representatives from criminal responsibility. That is the purpose of subsection (4).

Subsection (4) provides that the Secretary of State may direct that arrest and surrender proceedings not he taken against someone who enjoys state or diplomatic immunity. What must he do before he makes that direction? Subsection (4) tells him that he may take that step only after consulting, first, the ICC and, secondly, the state concerned.

Therefore, the provision has nothing to do with any weakening of the power of the ICC to bring to justice those against whom grave allegations are made who are representatives or nationals of state parties. Here we are dealing with the representatives of international sovereign countries which have not agreed to the ICC statute.

3.30 p.m.

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I thank my noble and learned friend for giving way. I am trying to follow his argument. However, I am a little puzzled because subsection (4) provides that the Secretary of State may direct that proceedings shall not be taken against such a person as mentioned in subsections (1) or (2). Subsection (1) relates to states which are members.

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And subsection (2) refers to connection with a state other than a state party to the ICC statute. That is exactly the point I am making. One therefore has two categories. Some are representatives of states' parties and some are representatives of parties which are not state parties. That is exactly the point I am trying to make.

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I do not believe that the noble and learned Lord has fully taken the point raised by his noble and learned friend. The power in subsection (4) allows the Secretary of State to direct that the proceedings do not go ahead in relation to a person such as is mentioned in either subsections (1) or (2). If the noble and learned Lord is arguing that we still need the discretionary power in relation to non-state parties, he has not explained why it is necessary to refer to both the subsections and not just to subsection (2).

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That is a legitimate point which, when it is put discreetly, is a better point than the point that my analysis is completely wrong. The analysis I am trying to put is at present based entirely on those who are representatives of non-state parties. I had understood—doubtless wrongly—that the noble Lord, Lord Avebury, and my noble and learned friend Lord Archer of Sandwell objected to both. We now understand the nature of the objection. I am saying that in respect of non-state parties, with which I am now trying to deal, the provision is necessary because our obligations under international law require it.

In respect of subsection (1), it is possible in exceptional circumstances, which I concede are difficult to envisage, that the point might be engaged. I am able to say that as regards the states parties and the non-states parties alike, the views of the ICC and the state concerned would be important factors in any decision. I ought to say what government policy is. It is quite clear that war criminals ought to be brought to justice. That is why—and everyone agrees—the Government have been so vigorous in their work on the statute. I am grateful to both noble Lords for commending us.

There may be exceptional circumstances in which subsection (4) might want to bite. As the way in which the noble Lord, Lord Avebury, has put the matter is a little more focused than the general objection, I shall look again to see whether I can give further assurance. I do not know and I must consult my noble friend Lady Scotland on the matter. I do not resile on the non-states party point.

The noble Lord, Lord Howell, asked a question relating to senior Ministers in high authority. I take his point: the statute, when effective, is entitled to strike the mighty as well as their obedient, or directed, servants. He asked whether it would be the occasion of a parliamentary Answer and I believe that it would be. As any such request is likely to be highly publicised, it seems to me inconceivable that a Question would not be asked about the exercise of the Secretary of State's discretion.

I am standing firm on the non-states parties. I realise that it may not be entirely attractive to both noble Lords. I shall look again at the point relating to subsection (1), although I cannot hold out a real prospect of a change of view. However, I might be able to give a firmer assurance about government thinking.

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First, I apologise to the noble and learned Lord, Lord Archer, for the apparent discourtesy. I had imagined that after my noble friend Lord Lester spoke to me he would have said something to the noble and learned Lord. It is my fault for failing to speak to him before coming into the Chamber. I humbly apologise for any discourtesy.

I am grateful to the noble and learned Lord for going part of the way with us and agreeing that there is a point to be examined in so far as a power to direct the proceedings should not continue where the accused is a national of a state party. I could not for the life of me conceive of circumstances in which the Secretary of State would want to direct that proceedings should be discontinued in relation to a person who has no immunity because the state party has acceded to the ICC statute and has therefore waived all the immunities. It is therefore inconceivable that any circumstances could arise which would require the Secretary of State to think about exercising the kind of discretion he is given under subsection (4).

However, we go further and continue to insist that it is wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events which would take place if there were any dispute about the matter. The noble and learned Lord reaffirmed that there would always be consultations between the Secretary of State and the ICC and between the Secretary of State and the non-state party in order to ascertain, first, the fact that no waiver had been issued and, secondly, that the person had the immunity which he claimed.

The circumstances in which the Secretary of State would want to exercise his discretion would be that the ICC and the Secretary of State disagree on whether the accused had made out a case that he was a member of the non-state party and had the immunities which he claimed. We say, and every non-governmental organisation which has examined the point has told the Government, that this is a matter for the ICC and not for the state concerned to which the request is made.

I am afraid that we must disagree about that and return to the matter on Report. However, I hope that it will be possible for us to engage in further conversations with the noble and learned Lord. I speak without the authority of my noble friend Lord Lester, but knowing his character as I do I am sure that he would prefer to resolve the issue by rational argument between us and the Minister rather than by a confrontation on the Floor of the Chamber. I am pleased to see the noble and learned Lord nodding his head.

On the assumption that we can continue to pursue the subsection (2) matter and with the assurance that the noble and learned Lord will look at subsection (1), I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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moved Amendment No. 74:

Page 13, line 12, at end insert
("(4A) The power conferred by section 1 of the United Nations Act 1946 (power to give effect by Order in Council to measures not involving the use of armed force) includes power to make in relation to any proceedings such provision corresponding to the provision made by this section in relation to the proceedings, but with the omission?
  • (a) in subsection (1), of the words "by reason of a connection with a state party to the ICC Statute", and
  • (b) of subsections (2) and (3), as appears to Her Majesty to be necessary or expedient in consequence of such a referral as is mentioned in article 13(b) (referral by the United Nations Security Council).").
  • The noble Baroness said: Amendment No. 74 deals with the particular circumstance in which the ICC investigates a situation at the request of the United Nations Security Council. Any Security Council resolution passed under Chapter VII of the UN Charter would be binding on all UN member states. Such a resolution could include a provision that any indictee be arrested and surrendered to the ICC. Such an indictee might be a representative of a state which was not a party to the ICC, and a representative who enjoyed diplomatic or even state immunity. We would nevertheless be obliged to surrender that individual as a result of UN action, and this amendment gives us the power to do so. It provides for an order-making power under the UN Act. That power would be exercised on a case-by-case basis. Any Orders in Council would be put before Parliament in the same way as existing Orders in Council under the UN Act and, therefore, both Houses would have an opportunity to look at the matter.

    This is an important provision to enable us to meet a possible obligation which would arise out of a future UN Security Council resolution. I am grateful to my noble friend Lord Goldsmith for drawing our attention to the issue at Second Reading. Amendment No. 133 makes a very minor change to Clause 76 as a direct consequence of Amendment No. 74. I beg to move.

    On Question, amendment agreed to.

    3.45 p.m

    On Question, Whether Clause 23, as amended, shall stand part of the Bill?

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    I should like extremely briefly to make a couple of points. My concerns are very much at odds with what has been expressed and are very much in a contrary vein to the drift of the main argument. First, I should like to express my caution about the lack of discretion, rather than the concern, which has been expressed, about too much discretion. I have a certain amount of disbelief about the effective abolition of state immunity from representatives of government and heads of state. I have reservations about the desirability of that, and very considerable scepticism as to whether the law will be applied in that way. Are we really to believe that any Israeli head of state or Prime Minister will be indicted? Many people have harsh views about the newly elected Mr Sharon, but I am doubtful whether anyone would be so bold as to initiate proceedings against him which would have extremely inflammatory consequences in a tense situation. I suggest that, in reality, whatever may be the evidence in Chechnya about the behaviour of troops of the Russian Federation, no one would consider indicting Mr Putin. Whatever the appalling record of the People's Republic of China in Tibet, where according to some estimates deaths run into hundreds of thousands, again one can be sure that that will not happen.

    Perhaps the Minister can tell the Committee how, if it does happen, we can expect diplomacy to continue. Will diplomacy take place only by electronic communication? Will it not take place on third party ground? What guarantees will there be for heads of state visiting the United Nations? The Committee will recall that attempts were made to indict both President Mugabe and Fidel Castro. According to some estimates, the latter is responsible for 30,000 deaths. There were attempts to indict Fidel Castro when he arrived in New York, but somehow nothing happened. I find it difficult to believe that anything will happen, but it does not seem to me that that is the impartial rule of law.

    My second point is one that I have raised several times. I apologise to the Committee for not having been present at Second Reading. Although I studied the report of the debate in Hansard, I was unable to find the point addressed in the speeches of the Minister. I refer to the point that I raised twice on the first Committee day in relation to the resolution of conflict by domestic amnesties. Both then and today we had in attendance a charm of lawyers. It seems to me that it is possible to argue that the continuing development of international law poses a real threat to conflict resolution. Unless one believes that every internal conflict should be fought to the last soldier and be resolved only through unconditional surrender, the automaticity that is upheld by enthusiasts for this Bill will mean that some civil conflicts will be longer rather than shorter.

    One example of the kinds of contortion that a government might get into are the recent events in Sierra Leone. There the British Government pressurised President Kabbah's government to accept into coalition the RUF party, under the leadership of Foday Sankoh who, according to all accounts, had been guilty of the most appalling crimes, including the cutting off of children's limbs. In the interests of ending the civil war, after the Lomé peace the British Government were anxious to do as much as possible to bring about an end to the domestic conflict. As everybody knows, things did not work out like that. In the rush for the diamond and mineral wealth of the country, the civil war resumed and Mr Sankoh, in his second incarnation, ended up being branded a war criminal. But Britain had had very different thoughts the first time when I put it to the Committee that the evidence was no less than it is now that the most ghastly acts had been committed by his supporters and troops.

    I give another example of the dilemmas that can arise. According to the electronic version of the Daily Telegraph for Wednesday 2nd February 2000, Mr Peter Hain, former Minister of State at the Foreign Office, who has been a warm supporter of the International Criminal Court and this Bill, made a speech in which he said that African countries should,
    "offer Jonas Savimbi, Angola's rebel leader, safe passage [into] exile and immunity from prosecution for war crimes in an attempt to end the country's 25-year civil war".
    According to the report, the Minister of State was asked whether a man branded a war criminal by southern African states should escape prosecution. Mr Hain, who confirmed that he used these words, said:
    "It is a matter for other African governments. But if the price of settling this devastating war … was to reach an agreement with Savimbi on where he had a future outside of Angola … all sorts of things become possible".
    I continue the quotation:
    "I would say to him: 'If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that"'.
    I emphasise the words,
    "'it would be possible to provide guarantees about. that' ".
    Far from being shocked by what the Minister said—in many ways that is entirely sensible—it seems to me that the logic of that is entirely at odds with the thrust of the Bill and the automaticity that is being urged in the so-called impartial application of law. I say "so-called impartial" because politics, political prejudice, fashion and mythology often intrude into views taken of conflicts. We delude ourselves if we think that politics can be entirely excluded from the resolution of such conflicts.

    One might instance our own conflict in Northern Ireland which, viewed from another vantage in the world, might lead others to feel that perhaps we should not have had some of the amnesties that have been granted. I might not feel that. I do not feel that. But I can imagine someone else taking a different view. In Northern Ireland we have had a de facto amnesty in order to hasten what we hope will be the end of the conflict. I am not concerned about too little discretion, but that there is not enough. When I put this matter to the noble and learned Lord the other day, he referred simply to the fact that the prosecutor had a degree of discretion. But that is vaguely defined. I put it to the Committee that there is a clear conflict between what is proposed in the Bill and the ending of some ghastly conflicts. Sometimes wars—civil wars in particular—are brought to an end only by politics, negotiation and offers of safe conduct for those who have been involved.

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    I remind the Committee that I have an interest. I have a simple question for the Minister. When we accept diplomatic credentials from a non-state party's diplomats will we be seeking a waiver under subsection 2(b)?

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    The noble Lord, Lord Lamont, raised a number of interesting examples. I wondered when he would come on to Chile. I was very disappointed that he did not refer to the possibility that, if the International Criminal Court had been in existence, some of the leaders of Chile could have been tried under those provisions. Equally, the other examples that he gave were ones which have happened in the past and do not fall to be considered under the Bill because the jurisdiction of the International Criminal Court is not retrospective. So whatever we may think, for example, about the desirability of prosecuting Mr Savimbi, who has undoubtedly committed, as the noble Lord said, a huge number of war crimes in Angola, that possibility is not open for us.

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    The point I was making does not relate to Mr Savimbi but to the general principle. There will be Savimbis in the future; there will be conflicts like the Angolan conflict in the future. I was not seeking to refer to an individual or an individual's situation but to a general principle exemplified by that and which I believe will occur in the future.

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    To pursue the example; Mr Savimbi would already have committed crimes under the ordinary law of Angola. He could be tried under that law. The previous example that the noble Lord gave, which is equally important, was that of Mr Foday Sankoh in Sierra Leone. Mr Foday Sankoh can be tried under the ordinary criminal law of Sierra Leone. I am not altogether clear why the Government and the United Nations consider it necessary to establish a special tribunal to deal with war crimes committed, as he said, in the most appalling civil conflict there, when they can be dealt with under ordinary law. The same applies to Chechnya. Chechnya is technically under the internal jurisdiction of Russia. Any crimes or war atrocities committed by the troops or by the forces of the Chechnyan separatists could be dealt with in the normal course of Russian law. Similarly, there are other examples where domestic crimes are committed within the boundaries of a state.

    There may be an argument—there has been an argument, as the noble Lord, Lord Lamont, says, in the past—for putting an end to a conflict by allowing a head of state or someone who is at a very senior level responsible for crimes that have been committed in that state, to go into exile. The two examples that occurred to me as the noble Lord was talking were Idi Amin and Mengistu in Ethiopia. But if one thinks about that latter example, there have been quite a few trials instituted by the newly elected government of Ethiopia. Under their ordinary law they have dealt with the people who committed atrocities under Mengistu and he is the only one that escaped. Therefore, if one is saying that it is desirable, from the point of view of putting an end to a conflict, to let the person at the apex of the tyranny and the repression go into exile and live a comfortable life in Saudi Arabia or Zimbabwe while all the underlings who have committed the atrocities while subject to his orders are to be tried, one must disagree with the noble Lord, Lord Lamont. It is surely desirable that we have on the International—

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    Can I put the moral choices to the noble Lord another way? Suppose a war has reached a virtual stalemate. It has gone on for a decade. The only prospect is continuing casualties on both sides. Is it better to fight to the last man until there is no one left or to have a negotiated settlement, which would be impossible under the Bill?

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    If one looks at the cases that we are discussing that would not have happened. I believe that Mengistu was on his last legs at the time when, under American pressure, the Zimbabweans agreed to accept him. Furthermore, in the case of Uganda, Amin would have fallen after the Tanzanian invasion. It made very little difference that he was allowed to go into peaceful exile in Saudi Arabia. Unless the noble Lord can show that letting these dictators off scot-free in the past has been helpful in saving thousands of lives, I do not believe that he has a very good argument. I go further than that and say that if the provision that removes immunity from all officials, including heads of state, of state parties was not in the statute, we should not have the deterrent effect. The whole point of the statute is not simply to bring people to trial for these horrible offences, but to create a powerful deterrent which will stop the offences being committed in the future. If the person at the top believes that he will escape scot-free by having such an immunity—

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    Perhaps I may put another case. Would it not be in the interests of the people of Cuba if the president of Cuba stood down? But how is the president of Cuba likely to stand down when he might face prosecution for crimes committed in his own country?

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    The whole point that I was trying to make to the noble Lord is that these people—Castro, Savimbi, and so on—are not subject to proceedings under the International Criminal Court anyway because the atrocities that they have committed are in the past and swept into history. It is only crimes committed by Mr Castro or Mr Savimbi after the statute came into force with the requisite number of signatories that will be subject to the jurisdiction of the court. So, while the noble Lord has made an interesting point about the immunity of heads of state, it is not one that we have to consider under the Bill. The Bill only brings into effect the provisions of the International Criminal Court Statute. The International Criminal Court Statute says that there will be no such immunity and it would be impossible therefore for us to make any provision in the Bill which does not agree with that.

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    When we were last in Committee the noble and learned Lord, Lord Williams of Mostyn, met me on the stairs and said that no hereditary Peers were taking part in the debate. I noticed that the noble Lord, Lord Avebury, was. I shall now disabuse him. I shall disabuse him because of what my noble friend Lord Lamont has said. I shall put the issue in a long and historical context.

    The essential point is to stop punch-ups. When Charles came back to this country he realised that there had been social upheaval and crimes committed by both sides. Because he never wanted to go on his travels again he determined that as much as possible should be forgotten and forgiven. Incidentally, that is why I still own my small property in Surrey. So I am extremely pleased with Charles II.

    Having said that, he recognised that civil war—punch-ups—always involve horrors. It is essential to allow people to get away and escape to stop the continuation of those punch-ups.

    The French in 1815 did not learn that lesson. I suggest that, in some ways, the Allies in 1918 did not learn the lesson of a gentle peace. It is no good the noble Lord, Lord Avebury, referring to Mr Castro. Is it not lovely how criminals and dictators are always called "Mr", but if someone is nice and pleasant he is always called by his Christian name by the media? That is one of the supreme ironies. Mr Castro is not going to be tried for anything retrospectively. If he did do something nasty, he would be tried for that.

    However, we have to live in the real world. I am not defending the nasties, but we know that they exist. It is the nature of the conflict of mankind. If we want to get rid of the nasties, we must exorcise the poison. That frequently means letting very unpleasant people live in villas in the south of France on ill-gotten gains, which have probably been paid for by taxpayers in Scunthorpe, Washington or Paris, and which have been siphoned off into Swiss bank accounts. We have to swallow our disgust at their behaviour and say that it is better for that to happen, as my noble friend Lord Lamont says, than that the slaughter continues. We should bear in mind the fact that we sometimes have to accept that, and that is why I am sympathetic to what my noble friend said.

    4 p.m.

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    Before the noble Earl sits down, does he agree that it is very easy to bear the sufferings of other people in a forgiving spirit?

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    I quite understand that, and I equally understand the serious moral dilemma involved. We have to weigh the balance between ending something by getting the nastiness out of the way and holding our nose and thinking that although we do not like the man, we would rather that he lived in a villa in the south of France than that the slaughter should continue. I accept what the noble and learned Lord, Lord Archer, says because I know that he is a great fan of human liberty, for which I admire him. I hope that I am as well, but occasionally one has to hold one's nose in its defence.

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    I had not intended to speak in the debate, partly because this is a detailed clause and partly because I could not attend at Second Reading for which I was unable to apologise. In view of the way in which the discussion has evolved in the past 20 minutes, I want to add a word of sympathy for the basic point that my noble friend Lord Lamont raised. On several other quite important matters, I do not agree with him, but I share instinctively some of his concerns on this matter.

    Quite often, there is a tension between peace making and justice. My noble friend gave some examples of that. The noble Lord, Lord Avebury, said that such examples related to the past. My noble friend was trying to project the dilemmas into the future by asking how we would handle these events if they happened again. Therefore, his remarks were legitimate.

    I would add South Africa to my noble friend's list of examples. Serious offences were committed there, and the people against whom they were committed—to refer to the point made by the noble and learned Lord, Lord Archer—decided not to proceed down the road of investigating and punishing crimes, although the allegations were serious and terrible and fell within the scope of what we are discussing. Instead, they set up a truth and reconciliation commission, with Archbishop Tutu as its chairman and Nelson Mandela as one of its authors, because they believed that that was a better way of securing the settlement of harmony in the rainbow nation. Most people thought that that was right and that it would have been wrong if one of those against whom allegations were made had turned up in London, Paris or Washington and had been arrested and brought before an international court when the judgment of those in the newly democratic South Africa was to have a different procedure.

    My main worry about this whole concept is a slightly different one. We argue all the time in this House about matters of policy, and ethical foreign policy, which is a perfectly legitimate argument. Most of us accept, however, that in matters of policy there must be room for disagreement—even illogicality. In relations between a country like ours and the rest of the world, we cannot be expected to be completely consistent in everything. The moment that we begin to shift, or claim that we are shifting, on matters of policy from the discretion of Ministers or parliamentary control to matters of law, we are trying to elevate discussion to a different level. If law is to be valid and valuable, it needs to be impartial and universal. Unfortunately, that concept, coming out of the Rome treaty, is unlikely to be either. It will affect those who are useless from a point of view of diplomacy, those who are defeated and those who are weak. It will not touch those who are powerful and continue to be important players in the world of diplomacy. In policy, we have to make these discriminations, awkward though they may be. Once one begins to talk about international law, one has to achieve a higher degree of impartiality than we shall do under the treaty or the Bill.

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    I want to add the briefest of footnotes to what my noble friend Lord Hurd has said. The dilemma between peace and justice has arisen, and continues to arise, in Northern Ireland, as my noble friend knows—probably better than I do. It is with us in many circumstances and is likely to continue to be so. Such dilemmas are inherent in these situations before they can be resolved.

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    This debate on clause stand part has predictably expanded into a debate about one of the most important dilemmas in the Bill. The issue has been rightly raised, as it has been before and will be again. I shall certainly raise it at Report stage. The issue is about the danger of confusing matters of politics with matters of law, and the resulting confusion. In answer to the interesting excursion into 17th century history of my noble friend Lord Onslow, I recall that some of the regicides were brought to justice, although I am sure that the balance and reconciliation that my noble friend called for were also present, as well as a bit of shrewd politics.

    The debate and the earlier discussion on the amendment relating to citizens of states parties highlights that there is something of a major loophole in the structure of the Bill. It is a loophole through which our country may not seek to leap but through which other countries can be imagined leaping only too eagerly. At Report stage we shall have to examine the matter much more closely to be satisfied that, in the light of the broad aim of having a better means of catching international monsters and perpetrators of atrocities, we have the right legislation on our statute book to achieve that. There seems to be a doubt over the matter at the moment.

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    I have to remind myself that in the interests of economy we are in Committee rather than having a Second Reading debate. I know that the noble Lord, Lord Howell, has recognised that. I shall deal with a few of the matters because I know that Members of the Committee regard them as important.

    We need to bear in mind the fact that the Government have signed the statute in company with a large number of other countries. We hope that that number will increase. The purpose of the Bill is to implement the statute. I take on board fully, and respectfully, the points made by the noble Lords, Lord Lamont and Lord Hurd. Essentially, we have a philosophical difference about how to go forward. I respectfully suggest that that question has been resolved by our signature to the statute.

    What we are doing through the Bill is seeing whether, mechanically, we are producing appropriate legislation to give effect to that statute. I take the point about high state policy. It is true, as the noble Lord, Lord Avebury, said, that many of the illustrations given are to be met with the proposition, which he put, that this is not retrospective. It is equally true that one can extrapolate that type of example for the future, as did the noble Lords, Lord Lamont and Lord Hurd. In answer to the general questions of the noble Lord, Lord Lamont, I would say that we do not have a perfect system whereby the mighty are brought to justice for their wicked cruelties, though we do have systems of justice that punish individuals. That is the philosophical step that we are engaged on.

    It is true, I dare say, that in the future we will not find all experience of the statute, when ratified into law, perfect on every occasion. The stance that we adopt—I hope that the Opposition will adopt the same stance—is that this is a distinct improvement on what presently is to be found. It is intended to deter for the future. That point, which I endorse, was made by the noble Lord, Lord Avebury. It is intended to say to those who are powerful people, sometimes in extremely powerful countries—I take the point made by the noble Lord, Lord Lamont—that they will not necessarily be safeguarded for ever. The noble Lord mentioned the People's Republic of China. It is a matter for it to decide whether to sign and ratify. It is a matter for the state of Israel to decide whether to sign; and if it does, whether it wishes then to ratify. But, having taken those two steps with all due deliberation, none of them should think that their subsequent leaders or present leaders for subsequent offences are liable to go unpunished.

    That is a significant step forward. On this side of the Committee and in other parts of the Committee we rejoice in it. We do not pretend that it will be simple. But once upon a time—I am sorry to be as historical as the noble Earl, Lord Onslow—the barons were not tried by juries; and once upon a time the clergy were not tried by juries. I am sorry that the noble Lord, Lord Howell, corrected the noble Earl, Lord Onslow, about the regicide. I frequently take visitors to see the death warrant and have noticed that many of the signatories were indeed Welsh. If it is said that after the restoration all was sweetness and light, I must send a postcard to the Duke of Monmouth.

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    The Duke of Monmouth was James II, not Charles I.

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    I said "after the restoration". In the Onslow saga I suppose the most definitive argument is that the noble Earl is still the possessor of land and therefore we should do nothing that might interfere with his peaceful enjoyment of it.

    There is no ducking this question. The noble Lord, Lord Lamont, was right to raise it and the noble Lord, Lord Hurd, was right to endorse it. We recognise the difficulties but we believe that this is the way forward. It is a step of high policy. At the moment we are engaged in seeing to the difficulties and intricacies of putting that decision into legislation. In answer to the noble Earl, Lord Attlee, it would not be necessary to ask for a waiver when credentials were delivered. It would be a matter for subsequent investigation.

    Contrary to my own self-instruction, I have spent a little time on Second Reading matters as I thought it was appropriate to do so. I hope that the noble Lord, Lord Lamont, will not insist on his opposition to Clause 23 standing part of the Bill.

    Clause 23, as amended, agreed to.

    Clause 24 [ Delivery up of persons subject to criminal proceedings, &c.]:

    On Question, Whether Clause 24 shall stand part of the Bill?

    4.15 p.m.

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    Perhaps I may ask one question about Clause 24, which introduces Schedule 2. How will the provision apply to United States servicemen? We have already had a discussion about how the Bill affects diplomatic immunity in respect of non-state parties. Can the noble and learned Lord confirm that the effect of the Bill will be that even though the United States does not ratify the court, the servicemen of the United States could still be arrested and tried by the court if found on some third party territory? Will he confirm that they could be arrested and could be put on trial before the International Criminal Court? Is that not one of the major concerns of the US Administration and one of the reasons why the court is unlikely to be supported in the end by the United States?

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    I shall need to have precise details about the circumstances being posited by the noble Lord. At the moment individual servicemen are liable if they commit offences in foreign territories. That is the present state of the law. There have been notorious prosecutions in that regard. I really do not know what the ultimate attitude of the United States Government will be. All I know is what the noble Lord knows, which is that the former president signed. It is a matter for the US Congress to ratify.

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    I am sure that the noble and learned Lord would wish to make it clear to the Committee that even President Clinton, who signed the statute in his last days when he was doing a good many other controversial things, thought that the court needed to be amended to safeguard American personnel—and without that it could not be ratified.

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    As I have said on earlier occasions, the statute is not capable of being amended in the way suggested by the noble Lord. My understanding of the United States constitution—the noble Lord will recognise this—is that both Houses of Congress would need to ratify. Present indications are that that is less rather than more likely. But I am perfectly happy to correspond with the noble Lord about any points of particular detail.

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    Perhaps I may try to assist the noble Lord, Lord Lamont, by referring him to Article 17.1(b), under which a case may be ruled inadmissible if it has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned. In the circumstances referred to by the noble Lord where a United. States serviceman is accused of some offence in a third jurisdiction—a future Somalia, as it were—the military authorities of the United States would investigate any allegations that crimes had been committed by their servicemen. If they found that there was a case to answer, they would prosecute the servicemen by means of their military courts. If they decided that there was not sufficient evidence to justify a prosecution, that would equally be grounds for saying that the case was inadmissible in proceedings before the International Criminal Court. They would then notify the International Criminal Court that they had examined the allegations against the servicemen, had found that there were not sufficient grounds for prosecution and had not gone ahead and were therefore requesting that the court treat the case as being inadmissible in its jurisdiction.

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    It might be for the benefit of the Committee if an appropriate amendment were brought forward on Report. The noble and learned Lord might then be able to study the situation and provide a slightly more conclusive answer.

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    I am certainly happy with that. I think that one needs to be quite particular about the answers one gives to questions. I am perfectly happy to do that. In some circumstances, the answer of the noble Lord, Lord Avebury, would be correct. In other circumstances, there might he alternative criminal proceedings to be taken against United States servicemen. But answering general questions and trying to be specific does not help anyone.

    Clause 24 agreed to.

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    I beg to move that the House do now resume.

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

    House resumed.

    Schools Green Paper

    4.20 p.m.

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    My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Education and Employment on the schools Green Paper. The Statement is as follows:

    "I wish to thank all those who have assisted me in drawing up these proposals and to put on record my appreciation to teachers and non-teaching staff across the whole of the country for the work that they are doing day in, day out, to turn policy proposals into reality in the classroom and beyond.

    "Four years ago, we promised that we would improve school standards. Last week, the Chief Inspector's report confirmed the improvements in literacy and numeracy which have transformed primary schools. Standards are rising fastest in those schools where under-achievement has been most pronounced—in education action zones and through the Excellence in Cities programme. We have seen over 650 schools successfully removed from special measures. We will deliver our class size pledge ahead of schedule.

    "We are laying the early foundations, with 120,000 more young children in free nursery places than four years ago. We are committed to universal free nursery education for all three and four year-olds and to providing childcare places, benefiting 1 million children by 2004.

    "We have expanded the Sure Start programme, and I am pleased to announce today that the number of early excellence centres will be increased by 100.

    "Our task now is to build on these foundations to sustain change in primary schools and to transform secondary education. We have made a start, in particular through Excellence in Cities and the considerable expansion of specialist schools and through our investment in buildings and repair. But in partnership with teachers and parents, we need to move further and faster.

    "Today's Green Paper, Schools: Building on Success, sets out the three key challenges. First, we need to improve standards still further. For primary schools, we are consulting on new targets for achievement at age 11:85 per cent gaining level 4 in English and maths by 2004 and 35 per cent reaching level 5. We aim for a step change in performance in the early secondary years. We will be setting demanding targets for achievement at age 14, building on success in primary schools. Attainment at this age is a key determinant of GCSE performance. Ninety-three per cent of those who reach level 6 gain five or more good grades at GCSE. So, that is why we are already taking action. We have introduced new programmes of teaching in 200 schools with more challenging targets and catch-up provision, and with tests for 12 year-olds who have fallen behind.

    "From this September, we will extend this programme to all English secondary schools, backed by £82 million of investment this year. We are concentrating renewed attention on secondary schools which have low levels of success and helping those schools facing the biggest economic and social disadvantage through new pupil learning credits.

    "The second challenge is a focus on diversity and choice to ensure that the individual talent of pupils is fostered and that their weaknesses are addressed. Through a more diverse curriculum and improved support, we can transform their life chances. The national curriculum remains a basic entitlement. However, in addition, we will ensure that children have access to sport, the arts and to citizenship programmes.

    "I can announce today our intention that over time every child in primary school will have the opportunity to learn a musical instrument and experience one of a range of sports. But we need to do much more to offer real choice. We will accelerate pupil achievement with experimental programmes for youngsters taking tests at 13 rather than 14 and ensuring more early entries for GCSE. I am also able to announce today the establishment of a new centre which will spread good practice in addressing the needs of gifted and talented pupils. We will offer a new vocational route, providing choices in work-based as well as in full-time, practical GCSEs, leading on to apprenticeships for those who would benefit.

    "The third task is to extend diversity among schools, so that every secondary school develops a particular ethos and plays to its strengths, as well as contributing to its community and to the wider education system. We will double the current number of specialist schools, with a new target date of 2003 for the first 1,000, and leading to 1,500 schools within five years. Consistency is important. I can today also announce the creation of advanced specialist schools, extending their role to assist in teacher training and school leadership. We have already announced the first city academies in inner cities. Today, we are proposing new forms of partnership with the voluntary and private sectors to support schools.

    "Beacon schools enable the best of our schools to share best practice with others. I can, therefore, tell the House that, as well as offering beacon status to 1,000 schools by this autumn, we will also expand the programme to some schools which demonstrate excellence in working with their community. This Government have been the first to support new voluntary-aided schools for different faiths. We believe it is important that, where there is parental demand, we support such schools. We recognise that the costs to Church and other faith schools of funding 15 per cent of capital investment have been considerable, in particular with improved funding from government. I can today announce that, following discussion with the Churches and other faith groups, we intend to reduce this contribution to 10 per cent.

    "To succeed in reforming standards in schools, we need to recruit and retain good teachers. There are 2,250 more people training to be teachers today than a year ago. This is a direct result of action we undertook last year. This year's pay settlement, helping in particular new recruits and experienced teachers, is important. There has been a 12 per cent increase in those applying for training, along with more than a twofold increase in inquiries. However, we need to look further at how we can persuade good graduates to consider teaching and to stay in the profession.

    "The Green Paper proposes that we consult universities about developing teaching modules within a wide range of undergraduate courses, so that young people gain a taste and experience of what teaching has to offer, and, for some, to complete the in-school graduate teaching programme on a fast track. Beyond this, in shortage subjects—maths, English, languages, science and technology—we will assist new teachers by paying off their student loans at the rate of one-tenth of their debt in each year that they remain teaching in the state sector. During that period, they will not have to make repayments. This is a substantial new incentive to graduates to come into and to stay in teaching.

    "The programme I have announced today sets a clear direction for schools over the next five years. It builds on policies that work. It offers consistency and continuity together with modernisation. Teachers will be supported by improved training and by cutting out bureaucracy and addressing teacher workload. It will be backed by increased autonomy for headteachers of successful schools, building on changes in inspection and funding, including over the curriculum and improved pay and conditions for staff. It will be underpinned by the substantially increased investment we have provided in both the day-to-day running costs of our schools and in the fabric of their buildings.

    "Our policies are designed to develop the potential of, and offer equality of opportunity to, every child from whichever background they come and whichever school they attend. We have today moved beyond the old arguments to create a schools system appropriate for the 21st century. I commend the Green Paper to the House."

    My Lords, that concludes the Statement.

    4.28 p.m.

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    My Lords, I thank the noble Baroness for repeating the Statement in this House. I should also like to point out that we have seen the content of this Green Paper trailed throughout the weekend and this morning in the Sunday Times, the Sunday Telegraph, the Sunday People, the Independent, the Daily Mail and various other newspapers; on the BBC, on ITN, on Sky and Radio 4 and, of course, on almost every other broadcast media.

    The Statement is breathtaking in its audacity. It is easy to understand that panic has given rise to it. We are told that the Government now believe in selection, in private sector running of schools for profit and in academies for talented, young children. The Government have failed to deliver on education, and the Secretary of State knows that. After four years, the Government's policy on education is failing parents, children and governors, especially in our secondary schools.

    The Secretary of State also knows that, under the Government, class sizes in secondary schools have risen—a point consistently made during the passage of the Bill in this House which dealt with primary school class sizes. As confirmed by Ofsted, the Government's targets on exclusions have undermined discipline in classrooms, and the energy and enthusiasm of our teachers has been absolutely stifled by burdening them with red tape and paperwork—a directive per day since the beginning of last year.

    The Government are presiding over a crisis in teacher recruitment and retention, about which more will be said next week, that has left schools around the country without sufficient staff and has done serious harm to the education of tens of thousands of children. As we all know, many subjects are without specialist teachers in our secondary schools. What is the Government's answer to these problems today? Immediate steps to reduce bureaucracy and enforce discipline? A task force? A czar? No. I am afraid that all we have is a Green Paper and a speech from the Prime Minister mapping out his "agenda for the future". We have been here before. As your Lordships would expect, both the Prime Minister's speech and this Green Paper are awash with spin but very little promise of delivery.

    In his speech last Thursday, the Prime Minister made some definite pledges in relation to students. However, each of those so-called new pledges had already been announced by the Secretary of State in a press release on 14th September 2000. Perhaps that slipped the Prime Minister's mind. In this regard, as in so much, the Government are at least predictable. Today on the radio we heard the Prime Minister pledging to increase, in the next Parliament, the share of national income spent on education—exactly the same pledge that the Prime Minister made before the previous Parliament, exactly the same pledge that the Government have failed to deliver in the present Parliament.

    We have asked on a number of occasions for information about action zones. To date we have received none. Given today's Statement, will the Minister now let me have any evaluation reports on action zones and the part played in them by the private sector? Will the Minister also confirm that, during this Parliament, the Government have spent an average of 4.6 per cent of GDP on education, compared with an average of 5 per cent by the previous Conservative government, and have therefore failed to deliver on their 1997 manifesto commitment to spend a greater proportion of national income on education than the previous Conservative government? The Secretary of State has not delivered on that pledge. Why should we believe him this time?

    There are even more pledges in today's Green Paper—diversity in secondary education, businesses to take over failing schools, head teachers to be given greater management freedom from LEAs. We obviously welcome the language and the rhetoric of many of the proposals in the Green Paper—certainly those that have been copied word for word and pasted from the Conservative Party's website! We particularly welcome the Government's acceptance of the principle, which we have long advocated, that the private sector should be allowed to take over the management of schools. Will the Minister tell the House whether the Secretary of State has abandoned his previous dogmatic insistence that no private sector company could make a profit running state schools?

    So far, we have something old and something borrowed. What is new in the Government's package? It has to be the Government's decision today that they suddenly favour selection. Everyone who watched the Secretary of State's lips at the 1995 Labour Party conference, saying, "No selection by examination or interview", will have been startled by today's announcement. On this issue, the Government are guilty of much confusion. The Secretary of State said that specialist schools would be able to select 10 per cent of their pupils. However, he told Radio 4 that they are not selective. And what of the new national academy? Will the Minister tell the House how pupils will be selected, if not by examination, interview or aptitude, to attend the national academy for gifted and talented children?

    Labour's confusion over selection is symptomatic. They have attacked grammar schools but have introduced selection in inner cities for the brightest children and now propose to introduce it for those who wish to take vocational GCSE examinations. When will the Government stop their vendetta against grammar schools and scrap grammar school ballots? Does the Minister agree with the Prime Minister's office that our comprehensive schools are merely "bog standard"? How does the Prime Minister believe that parents, children and staff in our schools will feel about being described in such an inelegant way?

    The Secretary of State refers to diversity and choice. He offers bureaucracy and confusion. It is clear from the Statement that the centre will still impose its will on our schools. Will the Minister now accept that the only way to provide for the freedoms that she, the Prime Minister and the Secretary of State advocate is to free our schools of the shackles of LEAs, to provide, on the basis of a national formula, direct funding for each school, and to set schools free to decide what is right for their pupils, untrammelled by bureaucratic and politically correct interference from central or local government? Why should we believe a government who abolished maintenance grants and introduced student loans, without any manifesto commitment, and now suggest paying off student loans? That would be tough on a teacher of music, history or geography, because they do not feature in the Secretary of State's list.

    Our schools need to encourage and develop the talents and abilities of every child, enabling all children to achieve their full potential. Our aim is to provide the education that is right for every child. To achieve that, we need an education system with hallmarks of excellence, diversity and choice. We need a system in which schools would be free to set their own ethos and maintain it through their admissions policy; free to set and exert discipline; free to receive the whole of their budgets direct and spend them in the interests of their pupils; a system in which teachers are trusted and free to get on with the job of teaching children and raising standards. This Green Paper does nothing to provide the freedom for which our teachers and schools are crying out.

    Since coming to office, the Labour Government have conducted a vendetta against grammar schools. In opposition, the Labour Party opposed choice and diversity in schools, selection, performance tables, city technology colleges, specialist schools, freedom for schools to make their own decisions at local level and private sector involvement in the running of our schools. This is a most extraordinary volte-face. However, it remains rhetoric. The Government have not delivered in this Parliament. Why should we believe that they will in the next?

    4.37 p.m.

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    My Lords, I, too, thank the Minister for repeating the Statement and for introducing the Green Paper. Like the noble Baroness, Lady Blatch, I also noticed that over the weekend the Statement was widely leaked. However, that had the beneficial side-effect that those of us wanting to respond to it today were well briefed as to its contents. As with so many papers on education produced by the Government, we on these Benches regard it as a curate's egg. We welcome many of its proposals. There are other aspects of it about which we are extremely wary.

    I begin with the issues that we welcome. First, we are delighted to see an expansion of the Sure Start programme. We all agree that there is an urgent need for an expansion of nursery provision, especially in the most deprived areas of this country.

    Secondly, we welcome the new initiative on music and sport in primary schools. That is long overdue. Irrespective of their parents' income, children should be given opportunities to learn a musical instrument or enjoy specialist sporting facilities. It is not right that access to those provisions should depend on income and class.

    Thirdly, we welcome the introduction of teaching modules to undergraduate courses. On a number of occasions undergraduates have already participated in teaching their specialist subjects in schools. I know that that was an initiative of Imperial College. It is a very important way of introducing undergraduates to the pleasures, perhaps as well as to the downside, of teaching. We on these Benches welcome that new initiative and wish it well.

    Fourthly, we congratulate the Government on the success of the literacy and numeracy strategies. The report of Her Majesty's Chief Inspector of Schools last week set out some very real achievements in that regard. We were delighted to learn of them. It is very important that we should overturn the situation in which 20 per cent of the people of this country are functionally innumerate and illiterate. In that task, it is absolutely vital that we should start with the primary schools.

    For that reason, we also welcome the fact that the Government are now turning their attention to secondary schools. For a long time, many of us have wondered what goes wrong in the first years of secondary school. Children going up from primary schools are often full of zest for learning but, in one way or another, they lose that zest in their first year. As we have seen from the inspector's reports, not only do they lose it but in some instances their performance goes down during those first years. It is therefore extremely important that we look at some secondary schools and try to improve the quality of teaching. There are, of course, very many good secondary schools but, sadly, perhaps too many that do not come up to scratch.

    There is a question as to whether the move towards more specialist schools is the right one. It is on this issue, in particular, that we have doubts about the Green Paper. It raises the question of when is a specialist school a selective school. The noble Baroness, Lady Blatch, left us in no doubt whatever that, as far as she was concerned, this is an extension of the introduction of selection. The Secretary of State, Mr Blunkett, was more careful, both in the Frost interview yesterday and on the Today programme this morning. He talked about selection not by ability but by aptitude. But those are words, words, words. When is ability aptitude? What does "selection" mean?

    The problem, quite frankly, is that we are moving towards a situation in which 46 per cent of secondary schools will have specialist status. That is fine. In Guildford, we have five secondary schools, four of which now have specialist status. I worry, to some extent, about the one that does not have specialist status; or, if you like, the other way round, the 54 per cent of secondary schools in this country that do not have specialist status.

    The largest of our comprehensive schools in Guildford has only recently had specialist status. It was announced among the latest batch of schools to be given specialist status. It did not really want to become a specialist school—it is a very successful comprehensive school—but it felt that it could not afford not to apply for specialist status. Why? Because it means money. It means an extra £100,000 in terms of capital expenditure and, for the next four years, an extra £123 per pupil. It is therefore of considerable advantage to any school to claim specialist status. However, the danger is that the schools which do not get specialist status will be the schools which perhaps need the money and the resources most.

    I am delighted that the Statement mentions that schools in the most deprived areas will receive resources. Perhaps the Minister can spell out precisely what is meant by that. It is left extremely vague. The Government will be,
    "helping those schools facing the biggest economic and social disadvantage, through new pupil learning credits".
    Neither the press statement nor the Green Paper tells us very much about what pupil learning credits are and what they will do. I should like to know much more about them. We need to know what the 56 per cent of secondary schools which do not have specialist status—those schools which may be, in the impolite phrase, bog standard comprehensives—will receive. Are they not the ones which need help the most?

    This brings me to our final query on the Statement, the issue of teacher shortages. Again, it is nice to see the Government at long last admitting that there is a crisis in teaching. We on these Benches have been saying for a long time that we were building up to a very real crisis, and time and time again the Government have assured us, "Crisis"? What crisis?" There is a crisis. The Government have to face the fact that they cannot possibly deliver on their promises on secondary education unless they can get teachers into place in the schools.

    I have been arguing for a long time that we need to do something special about science and maths. I have seen with my own eyes that, time and time again, we are not replacing teachers who retire. Increasingly, pupils are being taught maths by non-specialist teachers. It is not good enough. We now know that, in terms of recruitment of new people into teaching, teacher numbers are down not only in science and maths, but in modern languages, history and geography. Even English is now a shortage subject for secondary schools.

    Yes, we need to attract many, many more good graduates into teaching, but I am wary of whether these sticking plaster gimmicks are the answer to the crisis. We need to pay the profession decently. Even more importantly, we need to give teachers the trust and status that their profession deserves. There has been a steady erosion of those two values, which, if I may say so, is as much a result of the policies pursued by the Opposition as the policies pursued by the Government. That has landed us in the crisis we now face. Until the Government take action to reverse the trend, I fear that they will never solve the problem.

    4.46 p.m.

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    My Lords, I was amazed by the response of the noble Baroness, Lady Blatch, to the Green Paper. Not a single thing could she bring herself to welcome. I accept that it is the job of the Opposition to oppose, but usually a thoughtful Opposition think deeply about a Green Paper of this kind and are able to find some areas where they can say, "The Government are doing the right thing. We welcome it and we support it". But not the noble Baroness.

    I am, however, grateful to the noble Baroness, Lady Sharp, for the welcome that she gave to some of the proposals in the Green Paper and for the fact that she was willing to acknowledge that there have been improvements in our schools, notably in literacy and numeracy results in our primary schools.

    The noble Baroness, Lady Blatch, began by arguing that we had not done the job she thought we should have done on class sizes. So far as concerns infant class sizes, we are now down from nearly 500,000 children in classes of over 30 to around 30,000. We have had the first fall for many years in class sizes in junior schools. As to secondary schools, there is a tiny increase in class sizes, but this increase is on a long-term trend; it was taking place in the very years in which the noble Baroness not only was a member of the government but also the Minister of State for schools. Adult pupil ratios in our secondary schools are fairly stable.

    The noble Baroness went on to berate what she called red tape and the paper chase in our primary and secondary schools. She neglected to accept the absolute commitment that my right honourable friend the Secretary of State has made to reduce the amount of material that goes into our schools. He has pledged that there will be a reduction of one-third in the number of papers sent to schools, and that there will be a reduction of 50 per cent in the number of pages that teachers—in particular, head teachers and senior teachers—have to read. A good start has already been made.

    The noble Baroness went on to claim that there is a very serious teacher shortage and a decline overall in the number of teachers in our schools. There are 7,000 more teachers today in our schools than in 1998. I think the noble Baroness, Lady Sharp, was a little unfair in suggesting that the good ideas set out in the Green Paper about making sure that we increase the number of good graduates that we recruit into teaching—and, indeed, that we retain more teachers—was only sticking plaster. That is not the case. It is beholden on opposition spokesmen to come up with better ideas rather than always to be negative. I have not heard any better ideas from either of the two spokesmen opposite.

    The noble Baroness, Lady Blatch, asked about education action zones. I cannot provide her with an evaluation report containing the information she asked for. We know that schools are improving faster in education action zones nation-wide, and the same is true of excellence in cities areas. In both cases, we are seeing a substantial improvement. Again, it is a pity that the noble Baroness felt unable to acknowledge that.

    The noble Baroness asked about school funding. She was not quite accurate as regards the Government's pledge. What we said was that more of the national income would be spent on education at the end of this Parliament than at the beginning. That has been delivered. In 1996–97, 4.7 per cent of GNP went to education; in 2001–02 the figure is 5 per cent, and that will rise to 5.3 per cent by 2003–04. The figure is against a period of economic growth, when national income is going up, unlike under the previous government when, for a number of years, overall national income went down.

    The noble Baroness went on to ask about specialist schools, as did the noble Baroness, Lady Sharp. We want all schools to have a distinct character and mission. We want all schools to be excellent at the basics and to play to strengths other than the basics. It is our intention to identify more beacon schools, as well as more specialist schools. We shall examine more ways in which a school can become a beacon school—for example, by demonstrating excellence in working with the community.

    As regards selection, only 7 per cent of specialist schools are making use of the option to select up to 10 per cent of pupils by aptitude. The noble Baroness laughs, but I think that answers the question she posed.

    The noble Baroness asked about the national academy. There is a slight misunderstanding on the part of the noble Baroness as to the purpose of the centre for gifted and talented youth. It will co-ordinate better provision for gifted and talented young people through, for example, an extension of the summer school programme, which has already been seen to benefit such youngsters. We also want to involve the universities in continuing to work at the further development of what has been a very successful experiment.

    I can say categorically that we have no intention of scrapping grammar school ballots. The noble Baroness cast aspersions on the Government's commitment to greater diversity and greater autonomy. The Government are serious about this. We have every intention of making it possible for our schools to be freer in a variety of respects: through what they pay their teachers and through the lifting of the national curriculum, especially for those young people who would benefit from more work-related learning and a more vocational programme. The noble Baroness seems to neglect the fact that financial delegation has increased to the maximum level that it makes any sense for it to reach without cutting into the vitally important funding that local education authorities need for special educational needs and the provision of decent school transport.

    I believe that I have answered all the questions that were put to me, with one exception. The noble Baroness, Lady Sharp, asked about schools in deprived areas receiving pupil learning credits to make it possible for younger pupils to receive some of the benefits that middle class and upper middle class parents give to their children almost automatically. I think I can help her. We have plans in this area. Those schools with 35 per cent or more of their pupils on free school meals will benefit from this help. They will receive between £240 and £360 extra per pupil per year.

    This is an imaginative and innovative programme. It is focused particularly on building on the success of changes in primary schools and on taking this through into secondary schools. I am disappointed that the Conservative Opposition were unable to welcome at least some of the proposals.

    4.55 p.m.

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    My Lords, I thank the Minister for repeating the Statement. I hope that I may give her a little encouragement. Like many diocesan bishops, I have responded to the Church Schools Review Group, chaired by the noble Lord, Lord Dearing. He has encouraged all of us to increase the provision of secondary schools in our dioceses. Therefore, I welcome some recognition by the Government of the clear moral and spiritual framework—the clear ethos and the mission statement—of many of our Church schools. That responds to the needs of parents and is an aid to raising standards in schools. The point needs to be acknowledged and recognised. Therefore, on behalf of the Churches and the other faith groups, I welcome the suggestion that this kind of provision may be extended and that the Government will explore further the idea of diversity among schools.

    I also welcome the grant increase from 85 to 90 per cent to aid schools with the cost of capital works to provide, improve and repair school buildings. The Church schools are, I believe, the only group which is still paying VAT on such works. It is a continuing problem. Will the Minister give an indication of the timing of the introduction of the increased grant?

    Will the Minister indicate how the Government will help the Churches and the minority faith providers to respond to the 100 new schools initiatives? I am sure that they would examine any such proposals with great interest. We want to do what we can. In the diocese of Lincoln, we are working with Lincolnshire County Council to support the teaching of religious education and to undergird the moral framework of many of the county's schools. We want to do all that we can to enhance and support the good relationships we enjoy in that regard. Some of the material in the Green Paper indicates that we may receive a little more encouragement. I should welcome any indication from the Government as to how that might be taken forward. On behalf of the Churches, I thank the Minister for the Green Paper. I welcome it, and in particular the generous increase in the grant.

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    My Lords, I am grateful to the right reverend Prelate for the welcome that he has given to those aspects of the Green Paper that he identified. Because it is a Green Paper, we shall be consulting on much of the detail, including his final point. We shall want to talk to the Churches about those issues.

    As regards the timing of the increase in the capital grant to Church schools, subject to consultation and the passage of the necessary legislative procedures, it should be implemented from 1st April 2002. I am especially grateful for the welcome given by the right reverend Prelate to the extension in the number of Church schools. We have read the report by the noble Lord, Lord Dearing. We wish to talk further to the Churches about how we might move in that direction.

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    My Lords, I congratulate the Government on what they have achieved thus far in education, and on what they are planning to achieve. Can the noble Baroness say whether the Government have any plans for that important minority of children who do not receive the support and encouragement of their parents in respect of education?

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    My Lords, if the noble Lord, Lord Northbourne, has a chance to read the Green Paper he will notice a number of proposals within it that are geared to try to help the children whom he has identified. In responding to the noble Baroness, Lady Sharp, I mentioned the new funding that we are providing for schools in deprived areas where not all children lack the support of their parents. This will provide access to sports facilities, extra music lessons, visits to museums and theatres; in other words, all the enriching activities that are extremely important. The additional help that we want to provide to those young people who come into secondary schools but who are still not reaching the target levels that the Government have set will, again, he an important way to help children who have not been given very much support at home.

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    My Lords, I congratulate my noble friend the Minister on presenting such a radical Green Paper on education. The document is impressive in its scope, but also—at first glance—in the degree of detail that it addresses in relation to some of the most stubborn, long-standing and increasingly difficult issues that face our schools. I welcome the very clear statement that the process will be conducted in partnership with teachers and parents. I particularly welcome the fact that there is such an emphasis on the individual child, as well as on the circumstances of the family and on the home in very disadvantaged communities.

    From what my noble friend has said, I believe that the new pupil learning credits will open up tremendous enrichment possibilities for children who would otherwise never go to a theatre, learn a musical instrument or participate in activities that other children take for granted. The Government have taken many steps in that direction; indeed, that is an extremely welcome development.

    I have one question for my noble friend, building on what she said about transition between primary and secondary school. This is a time of extreme vulnerability for some children and a time when a good deal can go wrong. Does my noble friend have any further information on what the Government are doing to improve that process and make it easier for primary and secondary schools to work together?

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    My Lords, I am grateful for what my noble friend has said about the emphasis on the individual child. A great deal of the Green Paper focuses on raising standards, extending diversity and providing greater autonomy for schools. However, the needs of individual pupils must never be ignored. That is why we are considering pupil learning credits and why we are looking at extra provision for the gifted and talented. Indeed, it is why we are considering ways of lifting the national curriculum for those pupils in secondary schools who will benefit from a more vocational form of education and learning, thereby giving them greater opportunities to spend some of the week in their local FE colleges. We want to see much more collaboration between the FE sector and the secondary sector.

    As regards the transition from primary to secondary school, it is absolutely vital that the progress we have been making in our primary schools with higher levels of literacy and numeracy, as well as better overall performance in science, is maintained when children make that move into the secondary sector. We expect there to be very good contact between secondary schools and feeder primary schools. We also expect those children who have not done as well as anticipated to be given extra help. They should be identified as a result of information being passed from primary to secondary schools right at the beginning of their secondary careers, so that they can receive the extra help that they need.

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    My Lords, like my noble friend Lady Blatch, I welcome many of the ideas in the Green Paper. The ideas of diversity and autonomy have long been at the heart of Conservative education policy. We must rejoice when the sinner repents, even if—as in this case—it is a rather late repentance in the life of this Parliament. Like the noble Baroness, Lady Sharp, my concern relates to the 54 per cent of secondary schools that will not be specialist schools.

    As the Minister well knows, and as the Government have acknowledged, there is already a crisis in finding sufficient specialist teachers. The creation of so many specialist schools and the huge proportion of secondary schools becoming specialist schools will soak up a very large number of specialist teachers. Inevitably, they will see the attraction of teaching in a school that specialises in their subject. They will be mopped up as they finish initial training, and the good teachers will be instantly recruited by the specialist schools from wherever they worked. Can the noble Baroness say who will be left teaching in the 54 per cent "bog standard" schools? Where will we find the good teachers of history, geography, modern languages and mathematics? As a trustee of a city technology college, I already know that we have difficulties in securing enough technology teachers in specialist areas. Can the Minister say what will happen as regards finding good teachers—the best teachers—for those who may most need them in the other schools?

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    My Lords, I shall not repeat what I said in my initial response to the noble Baroness, Lady Sharp, about those schools that opt to stay and provide the whole range of the curriculum and do not wish to become specialist schools. I believe that I set out the Government's position in that respect in some detail.

    The noble Baroness asked about teachers. There is a great deal of information in the Green Paper about finding new ways to recruit more and better teachers, and about getting teachers into the classroom quickly and retaining them. I do not believe that all teachers, even those teaching the subjects that will be the focus of some specialist schools, will necessarily want to teach in specialist schools. Many of them will be happy to teach in comprehensive schools that decide not to go down the specialist route. That is certainly the case at present in those areas where there are a number of specialist schools.

    The noble Baroness mentioned history and geography, which are not the subject of a specialism. We shall not have schools specialising in either history or geography. We expect all schools to teach those subjects and to teach them well. I believe that the noble Baroness is being unduly pessimistic, especially in the light of the numerous proposals in Chapter 5 of the document about finding ways to increase the number of people who come into secondary school teaching. Those proposals include introducing modules into undergraduate programmes, which will, I hope, encourage more students at that stage in their careers to think about teaching because they find it challenging, exciting and interesting—indeed, something to which they might not have been exposed were this change not introduced.

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    My Lords, I wonder whether the Minister would be willing to dissociate herself from that extremely unfortunate phrase "bog standard" comprehensive schools which, in the experience of many people present in the Chamber, is injurious to those communities of both pupils and teachers with which so many of us have been involved during our working lives outside this House.

    Further, will the noble Baroness admit that the information that we are short of teachers in maths, English, languages, science and technology—that is, the main subjects of the national curriculum—is most disconcerting and worrying, especially when the DfEE's own figures show that there has been a 14 per cent reduction in applications for student teachers in secondary schools, compared with 1997? These declines are particularly severe in maths, modern languages, English and in history and geography where the figure is more than a third. Class sizes are at their highest for the past 25 years. Heaven knows, I am no apologist for the former Conservative government, but that is a pretty startling statistic, as is the one that vacancies are at a 10-year high. I do not think that we can be fobbed off with platitudes about an extra 2,000 teachers in training positions this year.

    Does the Minister think that the Liberal Democrat proposal to pay teacher trainees a £15,000 training salary would be of assistance? Has she any ideas as to how the inspection of schools can be conducted rigorously but without discouraging teachers?

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    My Lords, the noble Baroness asked many questions. I start with the final point about the inspection of schools. We are talking to Her Majesty's Chief Inspector about a lighter touch as regards inspections, particularly in those schools that have demonstrated success over a sustained period of time, and about trying to reduce the bureaucracy of inspections. As regards shortages of teachers in some of the subjects which are covered by specialist schools, the Government are not complacent about the shortages.

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    My Lords, my remarks were addressed to the national curriculum; that is, the bits of the education system that children arc supposed to have to do well in.

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    My Lords, I am sorry if I misunderstood the noble Baroness. I believe that she also made reference to the fact that these are the very subjects that are taught in specialist schools. It is absolutely true that we must have more well qualified teachers in these fundamental subjects that have to be taught to all pupils under the national curriculum. However, the document is full of proposals to try to overcome the shortages that the Government readily accept exist in these subjects. Some of the figures that the noble Baroness has just given are not altogether accurate. There are currently 7,000 more teachers in our schools than there were in 1998. This year I believe that there has been a 12 per cent increase in the number of applicants wishing to take a PGCE. The noble Baroness suggested that—

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    My Lords, does the Minister accept that the increase is in primary rather than secondary teachers?

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    My Lords, the noble Baroness is a Front Bench spokesman and has already had her turn. It is not right for her to ask further questions when it is the turn of Back-Benchers.

    The Liberal Democrats can always come up with proposals for paying trainee teachers £15,000 a year because they never have to do the sums that one has to do when in government. I do not think that £15,000 a year is a realistic figure to pay those who are literally training rather than people who are based in schools under a rather different kind of programme and who are paid more than the £6,000 training salary that we provide for those undertaking a PGCE course.

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    My Lords, may I welcome this further imaginative instalment of the Government's programme and perhaps suggest to my noble friend that the biggest danger she faces is being undermined by the actions of some local education authorities? I give just one example of this educational vandalism. In the most deprived area of Bristol it is proposed to close Whitehouse Primary and Gay Elms Primary, Gay Elms containing the only specialist autistic unit for children in the whole of Bristol. Will she be vigilant that this sort of outrage cannot be slipped past her because it will only undermine the very excellent efforts which have been pronounced?

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    My Lords, I cannot comment on my noble friend's question about the closure of two schools in a local education authority. The Government want to continue to work in a constructive way with LEAs right across the country. That is what we are doing.

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    My Lords, the Minister has not answered the question about bog standard schools. Does she agree after four years in office with Downing Street's statement that our comprehensive schools are bog standard? Can she tell the House how schools select by aptitude given that all parents think that their children have aptitude? How can one select on that basis?

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    My Lords, comprehensive schools are diverse and we wish to make them more so. There will be many different kinds of comprehensive school, some of which will specialise and others which will not. The Government wish to widen the autonomy of our comprehensive schools and make sure that all of them have the opportunities to excel in some areas. On the issue of whether all parents think that their children have aptitude, I do not think that that is entirely true. It is rather unfair to parents. I believe that all parents want to support their children. Speaking as a parent, I never thought that one of my children had an aptitude for modern languages. He found them extremely difficult. I would never have made that claim. However, I believe that teachers are able to identify children who demonstrate an aptitude for modern languages. They might want to encourage those children to go to an appropriate specialist secondary school.

    International Criminal Court Bill Hl

    5.17 p.m.

    House again in Committee.

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

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    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.

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    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.

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    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.]

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    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.

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    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.

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    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.

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    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.

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    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.

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    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?

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

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    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.

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    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.

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    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.

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    moved Amendment No. 82:

    After Clause 26, insert the following new clause

    GOVERNMENT RESPONSIBILITY TO MAINTAIN LAW AND ORDER

    (". 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.

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    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.

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    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]:

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    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.

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    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.

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    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.

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    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.

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    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.

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    I am happy to give that assurance.

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    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]:

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    moved Amendment No. 88:

    Page 15, line 37, leave out ("sensitive").

    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.

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    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.

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    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?"

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    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.

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    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?

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    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.

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    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.

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    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?

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    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.

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    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]:

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    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.

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    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]:

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    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.

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    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.

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    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]:

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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    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?

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    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?

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    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]:

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    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.

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    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.

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    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?

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    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.

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    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.

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    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.

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    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.

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    I take the noble Lord's point. He has caught me on that one.

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    On that very satisfactory note, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 39 agreed to.

    Clauses 40 to 42 agreed to.

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

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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

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    I beg leave to withdraw the amendment.

    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?

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    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.

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    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.

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    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"]:

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    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?

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    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.

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    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?

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    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?

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    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.

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    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.

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    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.

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    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]:

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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    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".

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    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.

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    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.

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    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—

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    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?

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    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.

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    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.

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    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?

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    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.

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

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    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.

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    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.

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    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—

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    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?

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    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.

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    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.

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    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?

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    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.

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    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.

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    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.

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    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—

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    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.

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    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.

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    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.

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    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?

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    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.

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    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.

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    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.

    Social Security Contributions (Share Options) Bill

    7.54 p.m.

    Brought from the Commons; read a first time, and to be printed.

    Constitutional Committee

    7.55 p.m.

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    rose to ask Her Majesty's Government whether they support the proposal for a Constitutional Committee in the House of Lords; and, if so, what they believe the role of such a committee would be.

    The noble Lord said: My Lords, I am grateful to all noble Lords who will speak, in particular the noble Lord, Lord Carter, the Government Chief Whip who will reply, and my noble friend Lord Henley who will speak from the Opposition Front Bench

    I warmly welcome the setting up of the Constitutional Committee which was approved by the House on 8th February. I wish it every success, and my noble friend Lord Norton of Louth, its chairman, and all members. I believe that this committee could be as important to the functioning of this House as the Delegated Powers and Deregulation Committee. It could give the House an early warning of constitutional matters in public Bills and how they should be dealt with.

    In this Parliament we have had a lot of Bills changing our constitution. That has convinced me that we need more effective parliamentary safeguards than exist at present. I remind noble Lords that the terms of reference of the committee are,

    "to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution".

    Those are comprehensive terms of reference. I imagine that there will not be too many public Bills which have significance for the constitution. It may well be that the committee will be able to give quite a lot of its time to the second part of its terms of reference; namely, to review the operation of the constitution.

    I mention two separate points concerning the operation and work of the committee. The first is the use of the Parliament Acts. Since the first Parliament Act was put on the statute book in 1911 it has been rarely used. The fact that it was on the statute book proved enough. But in this Parliament it has been used on two or three occasions. It has been used on a matter of conscience where, by long tradition, both Houses have a free vote. I suggest to the House that this is contrary to the spirit of the Act. An unhappy impression has been created that there has been little or no attempt to listen to the views of your Lordships' House and to try to accommodate them. This cannot be good for Parliament or for the effective scrutiny of government. I believe that this attitude tends to undermine your Lordships' important role in trying to ensure that the checks and balances in our constitution are maintained.

    In his debate on 24th January, the noble and learned Lord, Lord Simon of Glaisdale—I am delighted to see him in his place today—spoke about the abuse of the Parliament Acts. I suggest to your Lordships that he has unrivalled authority and that we should take seriously the comments he made. It may well be that this matter is too delicate, too controversial, for the Constitutional Committee to consider particularly in its early stages. However, I ask the Government to recognise that there is unease in many parts of the House about the way in which the Parliament Act has been used in this Parliament.

    My second point concerns the relations between Westminster and the new devolved bodies in Scotland, Wales and Northern Ireland. That is a separate point that has not been raised in our recent debates on constitutional matters. There are concordats governing the conduct of Ministers in relation to the devolved Assemblies. I want to talk about the relations between the Parliaments, on which no view has yet been formed.

    There will inevitably be differing views on policy matters. That is understandable. However, we should do our utmost to develop good relations between Westminster and the devolved Parliament and Assemblies and to try to avoid demarcation disputes. Your Lordships' House is eminently suited for that role. I call in aid the Wakeham Royal Commission and

    the Delegated Powers and Deregulation Committee. Recommendation 32 on page 65 of the Wakeham commission's report stated:

    "The reformed second chamber should consider establishing a committee to provide a focus for its consideration of issues raised by devolution, possibly as a further Sub-committee of the proposed Constitutional Committee".

    In other words, it would be a devolution committee.

    The Delegated Powers and Deregulation Committee produced a special report dated. 24th November 2000, which referred to the procedural consequences of devolution and quoted written evidence to the Royal Commission. On pages 17 and 18, it stated:

    "The House of Lords should be addressing this issue now, separately from House of Lords reform. The issue is all the more pressing for the House of Lords as, unlike the House of Commons, the House of Lords has no obvious first port of call for relations with the Parliament and Assemblies. In our view, the House of Lords should consider this issue as a matter of high priority".

    Those are powerful recommendations from two highly authoritative committees. I understand that no action has been taken so far on the issue. If so, that is disappointing. We are feeling our way. We are in uncharted territory and we need landmarks. It is not a question of big brother at Westminster telling little brothers what to do; it is a question of developing good working relationships between bodies that are independent of each other but need to work together for the good of the United Kingdom as a whole. I hope that the new Constitution Committee will be able to give a high priority to the issue. It may well also be an appropriate subject for the Liaison Committee. I hope that the Chief Whip will be able to answer my points.

    8.4 p.m.

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    My Lords, the noble Lord, Lord Dean, brings exceptional experience and authority to the subject of the constitution. We are also indebted to him this evening because his Question relates to the establishment of an institution that has been lacking in our public life. That may have gone unnoticed because we have an unwritten constitution. A written constitution, particularly a federal constitution, almost inevitably demands a constitutional court or its equivalent.

    On a number of occasions during the last Parliament, Cross-Benchers urged the Government to establish a Royal Commission on the constitution. Minister after Minister said that it was unnecessary, because everything in the constitutional garden was lovely. It never seemed to occur to them that an alternative government might follow that viewed the existing balance of the constitution with less enchantment. That has occurred.

    On the eve of the last election, The Economist produced an extraordinary leading article. The Economist had been critical of the Conservative Government, but in the end it concluded, "Labour doesn't deserve it". Its reason was that in Mr Blair's,
    "one declared area of radicalism—constitutional reform—his ideas are half-baked".
    That was a remarkable judgment in the circumstances, but it proved to be true when we embarked on the proposed constitutional reforms. Perhaps the most remarkable aspect was one that has recently been raised again by the noble Lord, Lord Campbell of Alloway—the fact that we embarked on more than one referendum without thinking through what they involved. The referendums in Scotland and Wales went ahead with no consultation with the far more numerous citizens of England, who were affected, and without any thought as to who should frame the questions. They were framed by Parliament, but they were somewhat loaded.

    I am encouraged to see so many members of the new committee attending the debate. No doubt it will consider issues such as the circumstances in which there should be a referendum, who should call it and who should frame the question. That is only a beginning of some of the questions.

    The noble Lord, Lord Dean, has adverted to a number of questions which undoubtedly would fall to the consideration of the committee. However, in my respectful submission, there is one overriding and all-pervading question; namely, the balance of the constitution and whether our executive is increasingly aggrandizing. I say "increasingly" because it was already notable in the previous administration. What we have seen recently is what we saw before, but now it is more noticeable; namely, an attempt to talk up a practice into a convention and a convention into a rule of law when it suits the executive, as it practically always does.

    I very much trust that the noble Lord, Lord Acton, who is present, will bear out to the committee the wisdom of his great-grandfather regarding the potential corruptibility of all power. Therefore, I very much welcome this question, which is now to be answered by the noble Lord the Chief Whip. I noted one or two other points, but the important ones have been introduced by the noble Lord, Lord Dean. Again, I particularly advert to the responsibility which exists in an unwritten constitution of relying on a balance of power rather than a separation of power, such as one sees in America. That is the responsibility to be addressed by the committee, whose establishment we welcome so much and whose membership commands our admiration.

    8.12 p.m.

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    My Lords, it is both daunting and a privilege to follow the noble and learned Lord. He is the acknowledged expert in your Lordships' House on constitutional affairs and was so long before I ever had the privilege of attending this House. The House will be much indebted to my noble friend Lord Dean for having offered this opportunity for debate on what may lie within the remit of the Constitution Committee.

    Inevitably, what is said in this debate and what was said on 13th December on the fifth day of the debate on the gracious Speech, on 19th January on the Parliament Acts (Amendment) Bill, on 24th January on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, on the Salisbury convention, and on 31st January at Second Reading of the Parliamentary Referendum Bill is all relevant to this Motion moved by my noble friend today and to the Motion which will be moved by my noble friend Lord Norton of Louth on Wednesday.

    Intervening on Tuesday will be the Report stage of the Regulatory Reform Bill. On any showing, that is a main constitutional Bill which, as such, falls within the remit of the Constitution Committee, albeit that it is concerned with delegated power, and the Delegated Powers and Deregulation Committee has already reported on it. On Royal Assent no doubt the Constitution Committee will wish to keep under review that aspect of the constitution.

    Assuredly during a dinner hour debate it is not appropriate to deploy any of those arguments, which are already recorded in the Official Report; nor is it appropriate to pre-empt tomorrow's debate on the Regulatory Reform Bill, which will no doubt be considered on the Motion of my noble friend Lord Norton of Louth.

    However, in the course of all those previous debates one matter arose but was never discussed. No attention was given to it. It was the rather curious concept which certainly on two occasions appears to have been formed on the Government Front Bench and on which some clarification will be sought from the noble Lord, Lord Carter, during his reply to the debate. As I always do, I have given the noble Lord notice of the question that I was intending to ask.

    That concept, as I understand it, subject to correction, is based upon the assumption that this House is subservient to another place. The other place, elected by the people, has a mandate during the period of its office until the next general election to introduce whatever legislation it pleases. Therefore, your Lordships should not exercise the power of objection but only the power to amend.

    However, surely unless and until some new form of self-denying ordinance is established by consensus, does not that concept conflict with the express provisions of the Parliament Acts, which preserve the independence of your Lordships' House and the delaying power? Would not that concept inhibit the due exercise of your Lordships' function as the acknowledged guardian of the constitution in circumstances where the nation is substantially divided? Is this question a matter of importance not only with regard to this Motion but also the Motion to be introduced on Wednesday?

    Does not another question arise on both Motions as to whether this new form of self-denying ordinance, including, in accordance with the recommendations of the Royal Commission, a reappraisal of the mandate doctrine to represent a new balance of authority between the two Houses, should not be sought by consensus? Should there not be meaningful consultation—I believe that that phrase was used by the noble Lord, Lord Goodhart—between all political parties, the Cross Benches and the spiritual Benches to seek to devise a practical, acceptable resolution?

    I turn to the abuse of the Parliament Acts. In that regard, the references for the noble and learned Lord, Lord Simon of Glaisdale, are as follows: 19th January, col. 1320; 24th January, col. 267; and 31st January, col. 783. The noble and learned Lord says that the only constitutional manner in which to seek to control abuse of the Parliament Acts is by a self-denying ordinance. That can be done in two ways. One is self-denying by the Government in resorting to the Parliament Acts, and the other is self-denying by the House in the exercise of its power of rejection and power to insist.

    With regard to referendums, the noble and learned Lord, Lord Simon of Glaisdale, said on 31st January at col 769:
    "The urgent question is in what circumstances constitutionally do we need or desire a referendum … that is a matter on which we should take advice from the Constitution Committee".
    That was in context with the Parliamentary Referendum Bill, which the noble and learned Lord supported, and which dealt with the provision of Bills which substantially affect the constitution. That was also supported by my noble friends Lord Dean of Harptree and Lord Cranborne, and the noble Lord, Lord Chalfont. While we are on the subject of referendums, surely the stance that there must be a referendum on stage two as affecting the constitution is wholly well conceived?

    There are other matters of constitutional importance relevant to today's debate and the Wednesday debate, such as the disparagement of the status and dignity of Parliament by doctored spin direct to the media, the re-affirmation of the guardianship role of your Lordships' House and the reaffirmation of the sovereignty of each House under its own rules and procedures. There is also the most important contribution today from my noble friend Lord Dean of Harptree on the relationship between Westminster and the devolved bodies based on concordats, where, as my noble friend said, in accordance with the recommendations of the Royal Commission, good working relationships must be established, and that is within the remit of this House.

    Like it or not, we have already entered into a new constitutional dimension in which a new convention which represents a new balance of authority between the two Houses has, as yet, not been devised. On that the House is in urgent need of the advice of the Constitution Committee, albeit that the resolution may be had only by consultation and consensus.

    8.22 p.m.

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    My Lords, in the three minutes remaining before the Front Benchers speak, I seek to put on record a few words on the assumption that the committee, when formed, will read this debate. I should like to remind them that Parliament was invented when the Crown, which was the executive government of this country, could not find sufficient resources with which to govern it without the consent of the people paying the taxes.

    There was a battle between Parliament and the Crown which continued until the Stuarts, who tried to do without Parliament, finished up having to do without their head, and the Roundheads, who tried to do without the Crown, finished up by appointing a Lord Protector who was a king in almost everything but name. The constitution settled down in the glorious revolution of 1688 to the House of Orange, and there the matter might have rested. but the Hanovarians came in with a king who could not speak any English. At that point we get into the game which we are now playing. The executive government came in from outside Parliament and was no longer distinct from it. The executive now sits in the House of Commons with a few representatives on the Front Bench in this building.

    What I shall suggest will appeal to my noble friend the Conservative Chief Whip and, I hope, to the noble Lord, Lord Goodhart. However, it will not appeal to the noble Lord the Government Chief Whip until he changes places. Then he will see the force of what I say. The function of Parliament is to control the executive. This committee needs to have that in mind and to see whether or not it is capable of so doing. That is an important concept. I ask the members of the committee to keep that in the forefront of their minds throughout their deliberations.

    8.23 p.m.

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    My Lords, I am grateful to the noble Lord, Lord Dean of Harptree, for introducing this short debate. He is a distinguished former member of the Delegated Powers and Deregulation Committee, which I suppose is the nearest thing we have had up until now to a constitution committee.

    I warmly welcome the setting up of the new Constitution Committee. I also welcome the appointment of the noble Lord, Lord Norton of Louth, to chair it. I am sorry to see that he is not in his place. I hope that he will not mind if I say in his absence that he is a distinguished expert on the constitution and also, I believe, notably independent minded.

    Whatever the future of your Lordships' House, it will undoubtedly remain a revising and scrutinising chamber. However, I think that it can do much more than that. The Select Committees of your Lordships' House are an important way of achieving that. As the European Union Committee and the Science and Technology Committee have shown, Select Committees do not have to be reactive. They do not just have to deal with current legislation. They can be forward looking and can, indeed, be a kind of think-tank, not just an ordinary think-tank but one of the highest authority.

    The quality of the staff, the clerks and the expert adviser, is very high indeed. Even though the committees in your Lordships' House have no power to compel attendance of witnesses, they are able to persuade important players in the game to appear as witnesses. The all-party and cross-bench membership of the committees adds weight to their reports, especially when, as they commonly are, unanimous. Our Select Committees produce reports of quality and authority. In setting up the Constitution Committee we are building on strength.

    I believe that there are three roles for the Constitution Committee. The first and obvious one, because it is spelt out in its remit, is to report on the constitutional implications of legislative proposals, either in current Bills or in pre-legislative scrutinies. I am sorry that this committee was not in existence some years ago. We have had what I think has been an unrivalled flood of important constitutional legislation in this Parliament, certainly for a very long time indeed. Even in this Session we have had the Regulatory Reform Bill. As the noble Lord, Lord Campbell of Alloway, said, that raises important constitutional issues, both by extending powers to act by secondary legislation and by developing further the relatively new form of what might be called "hybrid secondary legislation", the super affirmative resolution procedure, as it is sometimes called, which involves an extensive degree of consultation.

    It is too late for the new committee to report on the Regulatory Reform Bill, which has its Report stage tomorrow and, provisionally, Third Reading next Monday. But the Delegated Powers and Deregulation Committee has already reported fully on that Bill. Undoubtedly, at least if the present Government are returned at the next election, there will be more to come in the way of constitutional legislation. I refer in particular to the stage two reform of your Lordships' House.

    The second role I see for the Constitution Committee is the monitoring of the working of the current constitutional arrangements. As the noble Lord, Lord Dean of Harptree, said, it is a vital question to study how the devolution is working. Is the balance of devolved and reserved powers satisfactory? Is the partial system of devolution to Wales, which gives power over secondary but not primary legislation, workable? Will the Political Parties, Elections and Referendums Act work properly or is it, on the one hand, too easy to evade its restrictions or, on the other, unnecessarily bureaucratic? Will the Freedom of Information Act work when it is brought into force?

    Although I do not agree with the noble Lord, Lord Dean of Harptree, in suggesting that the two recent cases in which the Parliament Acts have been used were inappropriate, I very much agree with him that these issues are matters which the Constitution Committee should consider. It should look at the Parliament Acts and, indeed, the Salisbury Convention. It is difficult, if not impossible, for the Constitution Committee to reach a conclusion and make formal recommendations on this because it is too controversial as between the parties. But certainly reports could clarify the issues and set out the arguments on either side.

    I believe that the third and final role for a Constitution Committee is to look at the detailed implications of the constitutional changes that could happen in future but have not yet taken place.

    It is unlikely that the committee would put forward recommendations for a new constitutional settlement because they are likely to be highly politically controversial. However, it could examine the perceived advantages and disadvantages of constitutional proposals. We could, for instance, ask the Constitutional Committee to review the various electoral systems now in force in this country. There is a multiplication of them—in our view there are too many but some are desirable.

    The noble Lord, Lord Elton, suggested that the role of the Constitutional Committee was to defend or strengthen the hand of Parliament against the executive. He will be pleased to hear that I strongly agree with him. I hardly dare mention one issue which the committee might examine; that is, whether all Ministers need to be Members of one or other House of Parliament. They need to be accountable to Parliament and to answer questions, but do they need to be Members in order to be accountable? Might it not be better to have a larger pool of people from whom Ministers can be appointed.

    I shall not go further into that matter, which is a hobby-horse of mine. I return to the main issue. I believe that the Select Committee on the Constitution will strengthen the position of the constitution. I believe that it can and will strengthen the role and reputation of your Lordships' House and I extend a warm welcome to it.

    8.32 p.m.

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    My Lords, I, too, thank my noble friend Lord Dean of Harptree for having initiated this important debate. I also welcome its timing, coming as it does so soon after the resolution of the House to set up a Select Committee on the Constitution. I am also pleased that Her Majesty's Government listened to us on these Benches, in particular to my noble friend Lord Strathclyde, and agreed to set up the committee. I hope—this hope will be shared by Members on all sides—that the committee develops and grows in stature, as have other recently appointed committees of the House. I think in particular of the Delegated Powers and Deregulation Committee which was set up in 1994 or 1995 by my noble friend Lord Cranborne when he was Leader of the House. We take it seriously and the Government take it even more seriously.

    It is a matter for members of the new committee to determine the agenda. I have no doubt that they will follow all that was said in our recent debates on the constitution; those initiated by my noble friend Lord Campbell of Alloway, by the noble and learned Lord, Lord Simon of Glaisdale, and by other noble and learned Lords. I also congratulate my noble friend Lord Norton of Louth on having been selected to be chairman of the committee.

    Whatever one's standpoint in the recent debates to which I referred, no noble Lord can deny that a common thread which runs through all of them has been a sense of new uncertainty and, potentially, instability in our constitution that has followed the maelstrom of change pushed through by this Government.

    There is no part of the constitution—from the local council chamber to this House—which has not been shaken by these changes. At the same time, we have seen the deliberate transfer of authority away from the Westminster Parliament to European institutions, to the judiciary, domestic and overseas, and to devolved bodies. It has been one of the most tumultuous periods of constitutional change for a long time.

    Perhaps I may set out a few issues which the committee could examine. Obviously, other suggestions will come from other parts of the House and some from the Government Front Bench. It might have a special role in the evolving structure of new devolved parliaments and assemblies, as put forward by my noble friend Lord Dean. But as centrifugal forces grow, and they surely will, who will watch the process and hold the threads of the constitution together? Let us examine, for example, the points raised by the noble Lords, Lord Carlile of Berriew and Lord Elis-Thomas, on the matter raised by my noble friend Lord. Peyton of Yeovil only last week; that we may need to examine the ways in which both Houses now devise primary legislation in relation to the Assembly in Wales. As I read those exchanges, I thought that there was an appropriate function for this House, in particular for this new Select Committee.

    The Select Committee may also want to look at the relations between Holyrood and Westminster, the smooth functioning of which is vital to the survival of the United Kingdom. I do not agree with the idea once loosely floated by the late First Minister of Scotland, Mr Dewar, that one day this House might be given the power to review and revise Scottish legislation. Such a proposition would be premature, even though some of the difficulties of unicameral government are already becoming apparent north of the Border—an issue which the committee might review.

    On the other hand, as my noble friend Lord Strathclyde suggested in 1999 when he first suggested the idea of such a committee to your Lordships' House, the new committee might scrutinise the work of the Scottish Parliament, the Welsh Assembly and the new Northern Ireland Assembly so as to sound a warning nationally if the Government—for example, through the over-use of the Section 28(7) power in the Scotland Act—were intruding on the privileges of those bodies.

    The devolved bodies could themselves bring complaints to the House of Lords if they felt that the executive was encroaching on them and their rights. Equally, the committee could warn if those bodies were seeking to remove the constitutional boundary stones set down for them by Westminster. Although in theory the Presiding Officer—and, indeed, the Advocate-General or the Lord Advocate—have a "whistle-blowing" role, it is not impossible to envisage political circumstances in which they might not blow that whistle.

    Finally, the Select Committee might develop the expertise and authority to be the arbiter of problems arising from the working of the so-called "concordats" between the executives in London and Edinburgh.

    My noble friend Lord Strathclyde suggested other potential roles. There is the evolving relationship between Parliament and the judiciary and Parliament and the EU institutions to which I have alluded. There is also the use of the huge powers reserved by Ministers in much recent legislation. One example would be the powers taken in the Greater London Act to require the Mayor of London's policy to be in line with national policy.

    Some have floated the idea that constitutional Bills might be given a new and separate status to avoid unilateral imposition of major constitutional change by one party with a majority in another place. The committee might equally report adversely on proposals for referendums where there was unequal funding or where the procedures were not in line with the Neill committee rules. Others, including my noble friend Lord Campbell of Alloway, have raised the question of post-legislative referendums on matters of great constitutional importance.

    One has only to review that list, and many other ideas put forward in this debate and elsewhere, to realise that the committee set up by your Lordships may come to have the same importance and authority as the Delegated Powers and Deregulation Committee so ably chaired by my noble friend Lord Alexander of Weedon.

    I greatly welcome the Unstarred Question and the establishment of the committee. Against the background of all the uncertainty following the government changes and against their apparent intention to plunge on with further changes without consulting other parties or seeking any cross-party consensus, I venture to say that few things could be more timely than the setting up of this committee. We always need someone to watch the executive's manoeuvres. This House is uniquely equipped to do so and I believe that the Select Committee will do the job for this House uniquely well.

    8.40 p.m.

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    My Lords, the House is once again indebted to the noble Lord, Lord Dean of Harptree, for introducing an important topic about the role of your Lordships' House. As a number of noble Lords have said, this is one of a series of debates held this year which follow on from the two Bills introduced by the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway, and the topical debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. Not surprisingly, most speakers have concentrated on the second half of the noble Lord's Question regarding the role of the Constitutional Committee, and I want to do the same.

    For the record, the Government entirely support the decision of the House to set up the committee which was recommended by the Royal Commission chaired by the noble Lord, Lord Wakeham. We look forward, as I am sure does the whole House, to the committee establishing itself as a respected and authoritative body on a par with the other investigative committees of your Lordships' House. The genesis of the committee was the report of the Royal Commission. It noted that proposals for some such committee had come from a number of sources, in particular the right honourable Member for Huntingdon, Mr John Major, the Labour Party and your Lordships' own Delegated Powers and Deregulation Committee.

    Following its consideration of those representations, the Royal Commission recommended that the committee should consider all Public Bills, other than those concerned with supply or consolidation, on their arrival in the Second Chamber and prepare a comprehensive report on any constitutional implications; and, more generally, it should keep the operation of the constitution under review. The terms of reference which your Lordships have now agreed for the committee faithfully reflect those two suggestions. The Government likewise accept that this should be the dual focus of the committee. The terms of reference have deliberately been widely drawn to enable the committee to develop its role as it sees fit. All noble Lords who have spoken in the debate have agreed that the committee must be allowed to develop in its own way.

    I should like to comment on a few issues which I believe would enhance the effectiveness of the committee. First, comparatively few Bills have a direct constitutional implication, and they are not always the obvious ones. For example, the Clergy Disqualification Bill which is presently in another place is agreed to be a constitutional Bill, but I do not believe many would seriously argue that it has wide-ranging constitutional implications. I believe that, therefore, the committee will establish a reputation for authoritative reporting if it very carefully selects the Bills on which it seeks to do a full report.

    Secondly, and perhaps even more important, there are aspects of Bills which in the first instance may appear to be constitutional but fall within the remit of other committees. The Regulatory Reform Bill is perhaps an example of the potential for overlap between the new and an existing committee. I am thinking also particularly of human rights in respect of which there is now a Joint Committee of both Houses, and the balance between the powers of Parliament and the executive as represented by the degree to which Ministers are given delegated powers which fall to be considered by your Lordships' Delegated Powers and Deregulation Committee.

    I believe that the constitution committee would be more effective if it concentrated its work on other areas and did not seek to duplicate the work of other committees. In addition, the committee will have to consider how it can best deploy its resources in a comparatively limited period of time. The Royal Commission recommended that it should consider Bills only when they arrive in this House. That will give the committee only a couple of weeks to consider a Bill before it can have its Second Reading. Again, a focused, targeted approach will, we believe, yield dividends in the quality of the committee's work. I am sure that the noble Lord, Lord Norton of Louth, who I am delighted to learn is to be chairman of the new committee, has already thought of these and many other considerations. However, I was asked for the Government's views and so I give them.

    The ability to comment on Bills is to be only one part of the committee's remit. The other is to,
    "keep under review the operation of the constitution".
    That is a much more long-term project. The noble Lord, Lord Dean of Harptree, and other noble Lords asked whether the Government saw issues, such as the operation of the Parliament Acts and the effectiveness of the devolution settlements, as falling within the committee's remit. It is not for the Government to interpret the committee's remit; that is a matter for the committee itself. However, in principle it could be said that both fall within it. I suspect that in particular the latter—the devolution settlements—was what many people, including the Labour Party, had in mind when they recommended to the Royal Commission the establishment of the committee. The Royal Commission itself recommended that the committee might consider setting up a specific devolution sub-committee. Since devolution is obviously a major constitutional change—the decentralisation of power while maintaining the Union—clearly it would be wrong to say that it should fall outside the remit of a constitution committee.

    Whether particular aspects of the settlements, in particular the way in which the concordats work at administrative level, would be appropriate for the committee to consider would depend on certain matters. The noble Lord asked particularly about the relationship between Westminster and the devolved legislatures generally. That seems to be central to devolution, and I see no reason why the committee should not do useful work on that to complement that which is done within government and by the relevant Select Committees in another place. However, whatever the interpretation of its remit, I believe that the committee would be wise to consider extremely carefully the way in which it looked into other questions, for example, the structure of the other place in the light of devolution. It seems to me that that would not be a proper subject for a committee of this House to undertake. We must be careful that the undoubted expertise of the members of the committee does not lead the House to assume that as a whole it has a greater standing in constitutional matters than another place.

    The noble Lord also asked whether the Parliament Acts, the Salisbury Convention and so on would be within the remit of the committee. The terms of reference would certainly allow it, but whether a particular inquiry was a sensible and proper use of the committee's time and resources would be a matter of extremely careful judgment. As my noble and learned friend Lord Falconer said on 31st January in response to the noble and learned Lord, Lord Simon of Glaisdale, when the latter raised the point in debate on the Parliamentary Referendum Bill promoted by the noble Lord, Lord Campbell of Alloway, we do not accept that this Government's use of the Parliament Acts in any way calls into question their continued validity. I was pleased to note that the noble Lord, Lord Norton of Louth, made the same point in a trenchant contribution to the debate on 24th January.

    In addition, we also believe that if there is—we do not accept that there is—a problem in the relationship between the executive and the other place, that is a matter to be resolved by the other place. It is not an issue to be resolved by increasing the powers of this House at the expense of those of the elected Chamber, especially not by this House unilaterally arrogating powers to itself. Therefore, I believe that the committee should be extremely careful about any investigation of the relationship between the executive and the elected Chamber.

    I turn to just two of the main points raised in the debate, because there were a number of overlapping contributions. The point raised by the noble Lords, Lord Campbell of Alloway and Lord Dean of Harptree, about the relationship between the two Houses of Parliament, the use of the Parliament Acts and a possible self-denying ordinance affecting the use of the powers of this House is well taken. Speaking as Chief Whip, there is one very important and obvious aspect of this matter which, as far as I know, has not been fully considered. Whatever form future reform of this House may take, I am not aware of any proposals which would give the government of the day a majority in this House. Any government of whatever persuasion would always be in the minority in this Chamber under the many and varied proposals that I have seen for the reform of this House.

    How does one square the undoubted voting power of this House to deny the Government some parts of their legislative programme with the long-standing convention that the elected government of the day are entitled to get their business? I can do no more than enunciate the problem. It could well be a matter that the Constitution Committee would wish to consider at some time in the future in order to find a practicable and acceptable rubric regarding the operation of the two Houses and the way in which the Government achieve their programme, as the noble Lord, Lord Campbell of Alloway, very fairly mentioned.

    The noble Lord also raised the question of the Constitution Committee in relation to referendums. It is a subject on which I know he takes a particular interest. As my noble and learned friend Lord Falconer said when we debated the Parliamentary Referendum Bill on 31st January, there is nothing to prevent the Constitution Committee proposing, before a measure comes into force, an amendment to a Bill to provide for a referendum. Whether or not such a referendum then takes place will be a matter for the two Houses to decide, as it would be for any other proposed amendment to a Bill.

    The noble Lord, Lord Elton, in his brief intervention, referred to the role of Parliament to provide a check on the executive. He said that I might be prepared to change my mind if I moved across the House. I reply to the noble Lord that I speak as much as a parliamentarian as I do as a Chief Whip.

    We have had an extremely interesting debate. It is clear from the terms of the debate that there will be plenty of work for the new committee to do. It is essential that it chooses its programme of work and its topics for consideration extremely carefully. If one attempted to put together all the suggestions made in the debate for the work of the new committee it would be very busy indeed. It must choose its early work extremely carefully so that it gets the balance right. I am sure that there will be requests for debates in your Lordship's Chamber on that work and its report.

    I conclude that we are grateful to the noble Lord, Lord Dean of Harptree, for initiating the debate. We look forward to the Constitution Committee under the chairmanship of the noble Lord, Lord Norton of Louth, establishing itself by its actions as a respected part of your Lordships' House.

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    My Lords, I beg to move that the House do now adjourn during pleasure until 8.55 p.m.

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

    [ The Sitting was suspended from 8.52 to 8.55 p.m.]

    International Criminal Court Bill Hl

    House again in Committee.

    Clause 52 [ Conduct ancillary to genocide, etc. committed outside jurisdiction]:

    [ Amendments Nos. 112 to 114 not moved.]

    On Question, Whether Clause 52 shall stand part of the Bill.

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    Can the Minister give a brief explanation, particularly of that part in the Explanatory Notes stating that,

    "it will be an offence under this clause to incite, in England and Wales, the commission of genocide by a non-UK national overseas".
    Why is it necessary to have this provision? What gap is it aimed at? Why do some of our existing laws on incitement not cover that matter? Can one have genocide by a non-UK national overseas in the singular? Some explanation would be gratefully received.

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    One could have incitement by a single person or persons of a single person or a number of persons abroad. The provision deals with a new situation, which is that criminal offences are brought into judicable effect by the statute, if it is incorporated by the Bill.

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    But can there be genocide by a single person?

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    It is certainly possible, although I accept the noble Lord's underlying proposition that it is unlikely.

    Clause 52 agreed to.

    Clause 53 agreed to.

    Clause 54 [ Offences in relation to the ICC]:

    [ Amendments Nos. 115 to 118 not moved.]

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    moved Amendment No. 119:

    Page 26, line 22, at end insert?
    (?( ) The courts shall have no power to grant an injunction or other interim relief against the Crown, its agents or any member of Her Majesty's armed forces in respect of an offence or ancillary offence.?).

    The noble Lord said: Amendment No. 119 is a probing amendment. It seeks to safeguard against a particular possibility which could arise in domestic courts under the new legislation. Ministers may say that this is not the perfect place in the Bill to have the amendment. But it is hard to find any place to fill the particular hole we believe we have identified. We are concerned to ensure that there is no scope for domestic courts to interfere in current or potential operational matters or to be so moved to bring injunctions, or to feel impelled to bring injunctions, to stop the Armed Forces pursuing activities which they say are of a political nature. I have in mind injunctions that seek to prevent the Armed Forces operating in any way connected with nuclear weaponry. If that sounds far-fetched, it is a matter of record that the Scottish devolved Parliament is about to consider the legality of nuclear weapons.

    I am advised that back in 1996, the international court of justice gave an opinion that all nuclear weapons were illegal. It is possible to think of a range of injunctions that active people, with a strong political case to press, might bring against the Armed Forces who were seeking to carry out their normal duties, or who were about to go into a military action required by international peacekeeping interests or engaged in the pursuit of national interests.

    If the amendment is rejected, may we at least have an explanation as to why the possibility of an injunction is left in place in the Bill, given the new crimes that we are placing on the statute book? I am told that under English criminal law, courts have an inherent jurisdiction to issue injunctions to prevent threatened criminal offences. If something that hitherto was not regarded as a criminal offence, or identified as such, now becomes a criminal offence, how can we ensure that groups do not engineer injunctions, which interfere with the proper pursuit of national and security interests and the work of the military? I beg to move.

    9 p.m.

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    Clause 54 seeks to implement Article 70.4 of the statute, which extends existing offences against the administration of justice to cover the administration of justice of the ICC.

    I confess to being somewhat perplexed by Amendment No. 119 as it purports to exclude any injunctive relief in respect of a possible offence committed by Her Majesty's forces. While we do not accept that such a remedy would lie, the amendment has no place in a criminal law statute of this kind. It is a matter for the civil courts. I hope that the noble Lord will not seek to press his amendment.

    The Government remain confident that our entirely defensive minimum nuclear deterrent is consistent with international law and consequently there is no question of military personnel and civilians engaged in support of the United Kingdom's nuclear capability acting illegally or being in breach of the Nuremberg principles.

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    I thank the noble Baroness and ask whether her final comment, which is reassuring, will be placed on the record as a declaration or interpretative note? Will it be placed on the record on the ratification status or made explicit in some other way? The noble Baroness will know that the Republic of France has done precisely that, and that other countries are also concerned about the matter.

    I fully accept, as I said, that this is not the ideal place to make the point, but in probing the Government's views I was anxious to have the assurance that such injunctions, which are not unknown, and which may not be unknown in the future, are ones that the courts will not readily grant, merely because new crimes have been added to the statute book. That assurance is fair enough, although I do not know whether it will be enough for people outside. On the question of defence for military operations that could involve things that are now described under the appropriate schedules to the Bill, it is reassuring to have the certainty that there will not be injunctions or court interference of any kind. May I ask the noble Baroness to answer my one question on the declaration before I seek to withdraw the amendment?

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    I hope that I have said as clearly as I can that we shall certainly consider whether a declaration is appropriate. I reassure the noble Lord that our understanding is as I have outlined.

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    In the light of that reassurance, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 54 agreed to.

    Schedule 9 agreed to.

    Clauses 55 to 57 agreed to.

    Clause 58 [ Genocide, crimes against humanity and war crimes]:

    [ Amendments Nos. 120 to 122 not moved.]