Lords Sitting of 8 February 2001

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Bradford): The LORD CHANCELLOR on the Woolsack.

Renewable Energy
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
What proportion of the United Kingdom energy requirement is met from renewable sources at the present time and what they expect will be met from renewables other than wind power five years hence.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, in terms of UK electricity requirements, 2.8 per cent of present requirements are from renewable sources. The Government have proposed targets of obtaining 5 per cent of UK electricity requirements from renewable sources by the end of 2003 and 10 per cent by 2010, subject to the cost being acceptable to consumers.
In the Government's 1999 consultation paper on renewable energy there were some illustrative scenarios of the different ways in which the various forms of renewable energy might contribute to a 10 per cent target by 2010. The "trends continued" scenario, for example, showed biofuels contributing just over half the target and wind energy contributing about 35 per cent, with about one-third of that offshore. The balance between the various forms of renewable energy will be determined by the market, and individual projects will be subject to the normal planning process.
Lord Hardy of Wath: My Lords, I thank my noble friend for that reply. Will there be continued monitoring of the various sources of renewables to determine whether they are meeting the contributions to which he referred? Will there be further consideration of the need for the development of wave power and of the adequacy of processing capacity for biomass? Although I greatly welcome the decision to promote the use of methane from landfill sites, can a similar facility be provided to promote the use of this highly noxious gas from closed collieries?
Lord Sainsbury of Turville: My Lords, there will be continued monitoring of the different sources of renewable energy. It is the Government's policy to encourage diversity in the renewable energy sector. The renewables obligation provides a long-term stimulus to the renewable energy sector as a whole. We provide support to such areas as wave energy and photovoltaics, which we do not see in the short term as likely sources of renewable energy on a commercial
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scale. We are supporting biomass with £89 million of capital grants, which also support offshore wind technology, because these processes are currently very expensive. So far as concerns methane from coalmines (mine gas), we are examining possible methods for the capture and use of the gas, although mine gas is classified as a fossil fuel rather than a renewable source of energy.
Lord Palmer: My Lords, in order to meet these objectives, which I strongly recommend to the entire country, would it not be logical for Her Majesty's Government to give biodiesel the same duty rate as fossil gas fuel?
Lord Sainsbury of Turville: My Lords, last November the Chancellor announced a green fuel challenge to industry; it was asked to submit practical proposals for new alternative road fuels. The idea was to introduce fiscal incentives for fuels offering the most promising environmental benefits. I believe that a whole series of proposals have been put forward for a wide range of novel fuels, including biodiesel. The DETR is now examining the environmental benefits of the different fuels. Any changes will be announced in the Budget.
Baroness Gardner of Parkes: My Lords, is reusable energy included in the list of renewables? I refer in particular to the great waste of energy from ordinary domestic chimneys. By the use of a new heat exchange mechanism, this could be recycled for domestic use. I refer also to combined heat and power schemes. Does either of these come under the heading of "renewable resources", or are they outwith it?
Lord Sainsbury of Turville: My Lords, I do not think that they are included in the actual target for renewables. However, there are schemes to encourage combined heat and power in their own right.
Lord Berkeley: My Lords, is my noble friend aware that some 30 per cent of Denmark's energy requirements are met by wind power, and that it has now developed 5 megawatt offshore wind turbines, which have the advantage of being able to be located a long way offshore and are thus less visible? Are such schemes part of my noble friend's programme? What support will the Government provide to get such projects off the ground? I refer to planning permission and to the financial support that is required in the early years.
Lord Sainsbury of Turville: My Lords, the figures I gave to illustrate how the pattern might change are of interest in this context. Fifty-two per cent of our current use of renewables comes from hydro power, 39 per cent comes from biofuels of one kind or another, and 9 per cent comes from wind. Based on the projection I gave, those figures would become 11 per cent from hydro, about 53 per from biofuels, and 36 per cent from wind. So the figures include a substantial increase in wind energy, a great deal of

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which will come from offshore wind. As I said, we are supporting this technology with capital grants. Part of the strategy is to use higher megawatt turbines; the 5 megawatt turbine would be part of that strategy.
The Lord Bishop of Oxford: My Lords, what are the Government doing to encourage the domestic use of solar panels? Is there any reason why the price of solar panels remains so high, creating such a disincentive to their wider use?
Lord Sainsbury of Turville: My Lords, the price of solar panels is high because they remain extremely expensive to make. The cost of energy produced by them is some five to seven times higher than conventional electricity, but there are plans to examine whether we can do more to increase their installation.
Lord Rea: My Lords, will my noble friend expand a little further on research into wave energy? I have an interest in this, as my son was part of the team helping Professor Stephen Salter in Edinburgh with the "nodding ducks". That research ended, but there is still great interest in this.
Lord Sainsbury of Turville: My Lords, we do not see wave energy making a substantial contribution to our renewable needs in the short term. However, the Government are supporting the demonstration of wave energy projects, including the Limpet plant on the Hebridean island of Islay; but that will not contribute between the years 2003 and 2010.
Baroness Nicol: My Lords, has there been much progress recently in the use of fuel cell technology, and is that included in the list of renewables?
Lord Sainsbury of Turville: My Lords, it is certainly included, and there has been progress. However, this technology is still some way off in terms of producing a substantial amount of renewable energy.

Prime Minister's Press Secretary
3.9 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
What are the powers and responsibilities of the Prime Minister's press secretary.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, Alastair Campbell is appointed as a special adviser under terms and conditions set out in a model contract for special advisers. His contract has been modified to take account of his role as the Prime Minister's official spokesman and his executive responsibilities.
Lord Renton of Mount Harry: My Lords, I thank the Minister for that Answer. However, it conceals more
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than it tells us. Does the Minister recall that the head of the Civil Service, addressing a House of Commons Select Committee in November, four months ago, said:
"The taxpayer is paying Alastair Campbell to work for the Government as the Government, not for the Labour Party"?
Is that really happening at the moment? Does it happen when the press secretary airbrushes another reluctant Minister out of history by a disparaging remark at one of his press conferences, or, indeed, when, as the Financial Times tells us this morning, he intends to use a press conference,
"to flag up ambitions for a second Labour term"?
Is there not an impossible conflict of interest here that needs resolving?
Lord Falconer of Thoroton: My Lords, there is not an impossible conflict of interest. The noble Lord will recall that at the very same Select Committee hearing the head of the Home Civil Service and the Cabinet Secretary said that special advisers in the position of Mr Alastair Campbell are able to put forward a more robust defence for the Government than other civil servants. That is precisely what Mr Alastair Campbell does.
Lord Strathclyde: My Lords, following on from that, on how many occasions has the Cabinet Secretary had cause to upbraid the Prime Minister's Press Secretary since 1997 for behaviour incompatible with the traditional roles of a civil servant? Can the noble and learned Lord tell the House if the Hammond inquiry will cover the activities of the Prime Minister's Press Secretary as regards the events surrounding Peter Mandelson's resignation, and when it will report?
Lord Falconer of Thoroton: My Lords, I am not aware that the Cabinet Secretary has ever upbraided Mr Alastair Campbell in the respect suggested by the noble Lord the Leader of the Opposition. As far as the Hammond inquiry is concerned, its terms of reference have been published in a parliamentary Answer; namely, to investigate the events of 1998 in relation to the application for a passport by the Hindujas.
Lord Clinton-Davis: My Lords, has Mr Alastair Campbell reacted in any way differently from his predecessor, Sir Bernard Ingham? Is it not a fact that hypocrisy surrounds this question?
Lord Falconer of Thoroton: My Lords, he does not have a knighthood like Sir Bernard Ingham. I do not know how Sir Bernard Ingham conducted himself. As far as Mr Alastair Campbell is concerned, he has conducted himself in accordance with the terms of his contract.
Lord Taverne: My Lords, if the Hammond inquiry exonerates the former Secretary of State for Northern Ireland, will the Government act in the way in which

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an employer would have to act in the case of an industrial tribunal inquiry and restore one of the ablest members of the Cabinet?
Lord Falconer of Thoroton: My Lords, the inquiry has been set up into the application for a passport. The findings are entirely a matter for Sir Anthony. We should wait until they are published before we speculate.
Lord Campbell of Croy: My Lords, as it was confirmed in my debate three years ago that Mr Campbell is one of the two special advisers who have been given the full status of a civil servant, has he been asked to sign the Official Secrets Act and does he attend meetings of the Cabinet, as distinct, of course, from a kitchen cabinet?
Lord Falconer of Thoroton: My Lords, his obligations in relation to the Official Secrets Act are exactly the same as for any other civil servant. As far as meetings of the Cabinet are concerned, from time to time he attends but obviously as an observer.
Lord Haskel: My Lords, it is quite clear that Mr Alastair Campbell is a civil servant at the present time. What happens if an election is called?
Lord Falconer of Thoroton: My Lords, Mr Alastair Campbell has made it clear that when a general election is called he will cease to be a civil servant and will work for the Labour Party.
Lord Marlesford: My Lords, having been a lobby correspondent throughout the time that Sir Bernard Ingham was in power, may I tell the Minister that I can never remember an occasion on which he criticised the—
Noble Lords: Question!
Lord Marlesford: My Lords, may I ask the Minister whether it would be helpful to be told that I can never recollect an occasion on which Sir Bernard criticised the Labour Party and that he frequently refused to take a line for the Conservative Party, although he was—as he properly should be and as Mr Campbell should be—totally loyal to the Prime Minister of the day? If Mr Campbell finds it difficult to combine the roles, would not a simple solution be for him to continue in his position but to be on the payroll of the Labour Party?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for telling me about Sir Bernard Ingham's job as official spokesman to the then Prime Minister. As regards the present Prime Minister's official spokesman, he is well able to operate within the confines of his contract, as the Cabinet Secretary made absolutely clear at the Select Committee hearing to which the noble Lord, Lord Renton of Mount Harry, referred. That involves robustly putting the
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Government's case and, where opposition attacks on the Government are absurd, he is able to point that out.
Lord Marsh: My Lords, can the Minister give the House any indication of exactly how many senior civil servants are allowed to take time off to work for their party in an election?
Lord Falconer of Thoroton: My Lords, special advisers are expected, if they are going to engage in party politics in the course of an election, to resign as special advisers and act as they see fit. That position in relation to special advisers was the same under the Conservative government as it is under this Government.
Noble Lords: Next Question!
Viscount Cranborne: My Lords, I can assure noble Lords opposite that I shall be brief. Am I right in concluding from the noble and learned Lord's answer to my noble friend Lord Campbell—a clansman of the person in question—that Mr Alastair Campbell has not signed the Official Secrets Act?
Lord Falconer of Thoroton: My Lords, I cannot be precise about the procedure but I make it clear that he is governed by the Official Secrets Act to the same extent as any other civil servant.

Television Subtitling
3.16 p.m.
Baroness Ashton of Upholland Baroness Ashton of Upholland asked Her Majesty's Government:
What proposals they have to ensure the comprehensive subtitling of television programmes.
Lord McIntosh of Haringey: My Lords, on 29th January this year we announced plans to raise the target for the provision of subtitling on digital terrestrial television from 50 to 80 per cent of programming by the 10th anniversary of the start of the service. This matches the target for analogue terrestrial services. We also announced that the digital terrestrial targets for subtitling, sign language and audio description services would be extended to digital cable and digital satellite services when legislative time permits.
Baroness Ashton of Upholland: My Lords, I am grateful for my noble friend's Answer. Does he agree that we should support the development of subtitling for two reasons: first, for the viewing enhancement of people who are hearing impaired; and, secondly, to provide a stimulus to British industry to be at the forefront of Smart voice recognition technology,

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which, linked to the ability to view simultaneous translation, is where telecommunications will be heading in the future?
Lord McIntosh of Haringey: My Lords, as my noble friend says, it is certainly the case that there is a technological spin-off into other fields. It is also right in itself that we should give deaf people access to a much wider variety of television programmes than has been available in the past.
Lord Swinfen: My Lords, can the Minister tell the House what plans the Government have to bring cable and satellite television under the remit of subtitling regulations?
Lord McIntosh of Haringey: My Lords, the announcement last week was precisely to the effect that we are doing what we can by order. For digital terrestrial services we shall lay orders to increase the targets for subtitling. As I said in my original Answer, for digital cable and digital satellite services we need primary legislation. I hesitate to suggest that there could be any defect in the Broadcasting Act 1996 passed by the previous government but it appears to be more difficult to apply it to cable and satellite.
Lord Addington: My Lords, it costs up to £400 an hour to subtitle television broadcasts. Is that not a reasonable cost to make the service available to all those who want to use it? Does not the Minister agree that there is probably an argument for enforcing this measure under the Disability Discrimination Act?
Lord McIntosh of Haringey: My Lords, I do not disagree that the cost itself is reasonable, but, of course, there are issues other than cost. There is the matter of the availability of the expertise and the equipment to implement subtitling. There is also the problem with regard to, for example, live programmes or late delivery programmes, of making this provision available at a time when it is relevant to what is being shown on the screen. The question of adherence to the Disability Discrimination Act is an interesting one which would have to be tested.
Baroness Wilkins: My Lords, will the Minister clarify why it is thought possible and right for the BBC to reach 100 per cent subtitling by the 10th anniversary of the digital channels' creation but not feasible for the other digital terrestrial broadcasters?
Lord McIntosh of Haringey: My Lords, the BBC sets its own targets. It has set itself the target of meeting, matching or exceeding the targets set by the Independent Television Commission. The BBC has said that it aims to cover 100 per cent of all broadcasts within 10 years. However, the difficulties for the last few per cent are exactly as I described in my previous answer: live broadcast and late delivery programmes. We applaud the BBC for the efforts it has made.
Lord Bruce of Donington: My Lords, has the Minister made any representations to the BBC
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concerning the quality of programmes which have been broadcast by BBC television over the past two years? I refer in particular to the relevance and articulation—with the exception of one or two popular programmes which are very articulate and understandable. Will the Government take account of a growing dissatisfaction among the population generally about the quality of television which we are now condemned to watch?
Lord McIntosh of Haringey: My Lords, I have two problems with the question. First, it does not appear to me to be relevant to the Question on the Order Paper. Secondly, as has been the case for many years under governments of more than one political complexion, Ministers do not answer in Parliament for the quality of BBC programmes, which under the BBC Charter is the responsibility of the governors of the BBC.

Tobacco Smuggling
3.21 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
nder what authority HM Customs and Excise has started to seize small quantities of cigarettes from British travellers returning from abroad and on occasion to detain the travellers incommunicado.
Lord McIntosh of Haringey: My Lords, Statutory Instrument 1992/3155, the Excise Duties (Personal Relief) Order 1992, implementing EU Directive 92/12/ EC makes any excise goods personally imported from another member state liable to forfeiture if they are intended to be used for a commercial purpose. The Police and Criminal Evidence Act 1984 lays down strict conditions about how long persons can be detained after arrest. Unless persons commit an arrestable offence they are free to leave Customs controls at any time.
Lord Monson: My Lords, I thank the Minister for his comprehensive reply. Of course Customs officers have a duty to try to stop evasion of tobacco duty. However, is it acceptable to seize cigarettes—the number being well below the legal limit of 800—from an individual on the grounds that his breath did not smell of tobacco and he was carrying neither matches nor a lighter in his pocket? Is it acceptable to keep a group of passengers waiting for six hours in midwinter, as I am assured occurred, without allowing them to ring their families to say that they were safe? Is it also acceptable to tell other people who had returned to their homes in the West Midlands and north of England after the cigarettes had been confiscated that they could have their cigarettes back after all provided that they presented themselves at Dover before ten in the morning?

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Is it not time that the powers of Customs and Excise, which date from the autocratic 17th century—were scaled down and brought into line with the more modest powers enjoyed by the police, which date from the more enlightened 19th century?
Lord McIntosh of Haringey: My Lords, I have read the article in the Daily Telegraph to which the noble Lord refers implicitly. The responsibilities of Customs officers are to establish whether cigarettes are being imported for commercial use. In doing so, they have to take into account the commercial status of the person who bought the cigarettes, whether the cigarettes will be stored, for example, in a warehouse, whether the receipts and invoices show that they have been bought by a business and whether the cigarettes are of one brand or a mixture—in other words, whether they are intended to be smoked by one person. Under those circumstances, clearly there is an element of judgment for Customs officers to exercise.
These are openly called "smoking tours" and coaches can be stopped at Dover and Coquelles. Customs officers invite the passengers to alight from the coach, luggage is available on a carousel, and they carry out the proper inquiries as to whether those cigarettes are imported for personal use.
Lord Tomlinson: My Lords, while I welcome the action that the Minister is taking against small-scale tobacco smugglers, I would equally welcome the engagement of Customs and Excise in large-scale activity. Is my noble friend aware that the European Commission is pursuing a suit in the court in New York for £3 billion against Philip Morris and R J Reynolds; that the European Commission has invited every member state to join in that action; and that to date Italy, Spain and Germany have done so? Will the Minister encourage Customs and Excise also to join in that action so that the £3 billion which has been illegally extracted from the taxpayers of Europe can be recovered?
Lord McIntosh of Haringey: My Lords, I am aware of the case to which my noble friend refers. Customs and Excise is actively considering whether to join in the case. I am sure that Treasury officials will also wish to consider the matter.
Lord Faulkner of Worcester: My Lords, the problem is not that Customs officers are doing their job but that British tobacco manufacturers are exporting enormous quantities of cigarettes to countries where there is no market for them secure in the knowledge that illegal and criminal syndicates in those countries then return them to this country under the guise of smuggling. Is it not time that the details of the wholesaler and the countries of origin and destination are properly identified on these packets; and that the tobacco manufacturers in this country are made to accept responsibility for their part in this trade?
Lord McIntosh of Haringey: My Lords, we would be keen to encourage any degree of openness which
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would deter the organised gangs involved in these operations. My noble friend will be glad to know that in the past few weeks we have broken up no fewer than 38 organised criminal gangs who have been involved in these activities.
Lord Dubs: My Lords, is not the real problem that our European partners give the health of their citizens a lower priority than have successive British governments in relation to smoking?
Are there any powers which would enable us to go back to old procedures whereby one could purchase 200 cigarettes—"and that's your limit, mate"?
Lord McIntosh of Haringey: My Lords, no. A European directive has been accepted under unanimity provisions which changed what my noble friend calls "the old procedures". It would not be proper for me to comment on the motivations of governments of other member states.
Lord Shore of Stepney: My Lords, can my noble friend inform the House of the normal limit per person which our European masters allow our citizens to bring into the United Kingdom? At what threshold does the European law operate?
Lord McIntosh of Haringey: My Lords, I do not accept the description of "masters". There is no fixed threshold. However, where more than 800 cigarettes are imported, Customs officers tend to make the inquiries to which I referred earlier.
Viscount Cranborne: My Lords, is it also true to say that the current rates of tax on cigarettes encourage a trade which seems to account for an increasing proportion of cigarettes sold in this country? As a result of that trade, the government health warning on packets of cigarettes is reaching an increasingly smaller proportion of a market, the remainder of which is denied, therefore, that valuable health warning.
Lord McIntosh of Haringey: My Lords, I hope that the noble Viscount is not encouraging tax harmonisation within the European Union. If I thought that that were the case I might have to report him to the shadow Cabinet!
Yes, we have significantly higher duty than other European countries. It is incumbent on us, therefore, to do everything we can to stop illegal imports. Only last week, on the first use of the new scanner which can attack the really bulk trade in cigarettes—that is, container trade—we stopped a container in Felixstowe which contained 6 million cigarettes, saving the Revenue £1 million. One seizure was thus worth half the cost of the scanner.
Lord Monson: My Lords, does the Minister accept that my original and supplementary Questions

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referred not to the treatment of the guilty, which concerned some of his noble friends, but to the treatment of the innocent?
Lord McIntosh of Haringey: My Lords, of course I accept that, but the trouble is that I know that the noble Lord was referring in particular to coach passengers, because that is what the Daily Telegraph article is about. Between 70 and 80 per cent of coach travellers who have goods seized are previous offenders. That is not the persecution of the innocent; it is dealing properly with what is undoubtedly an illegal trade.

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

Constitution Committee
3.31 p.m.
The Chairman of Committees (Lord Mackay of Ardbrecknish): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution;
That, as proposed by the Committee of Selection, the following Lords be named of the Committee:

L. Acton,

V. Cranborne,

L. Fellowes,

L. Holme of Cheltenham,

B. Howells of St. Davids,

L. Lang of Monkton,

E. Mar and Kellie,

L. Morgan,

L. Norton of Louth (Chairman),

L. Ponsonby of Shulbrede,

L. Weatherill,

B. Young.

That the Committee have power to appoint specialist advisers;
That the Committee have power to adjourn from place to place;
That the Committee have leave to report from time to time.—(The Chairman of Committees.)
Lord Cocks of Hartcliffe: My Lords, I do not wish to weary the House again with my views on specialist advisers, but as the recently set-up Joint Committee on Human Rights has now met, may I ask the Chairman of Committees whether it has made any moves on the appointment of specialist advisers and, if so, who are they and where are they from?
The Chairman of Committees: My Lords, the legal adviser to the Joint Committee on Human Rights is
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Professor David Feldman, who is a full-time member of the staff of this House, shared with the House of Commons. As far as I know, the Joint Committee has not appointed any other adviser.
Lord Lester of Herne Hill: My Lords, is the Chairman of Committees aware that the committee, of which I am privileged to be a member, is very pleased that someone of Professor Feldman's quality has been appointed as legal adviser? He is outstanding.
On Question, Motion agreed to.

International Criminal Court Bill [H.L.]
3.32 p.m.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
Lord Cocks of Hartcliffe: My Lords, will the Minister rebut an allegation that was made in the other place on 1st February during Business Questions by the Member for Islington, North, who is also a member of the Joint Committee on Human Rights mentioned by the noble Lord, Lord Lester, just now? Talking about this Bill, he asked the Lord President:
"Does she accept that there is unnecessary delay in the House of Lords?"—[Official Report, Commons, 1/2/01; col. 455.]
Will the Minister confirm that that is untrue? Is it not unfair that we take so much groundless flak?
Baroness Scotland of Asthal: My Lords, I can certainly confirm that there has been no delay on the Bill. Any aspersion that has been cast in that regard is misplaced.
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Lord Campbell of Alloway moved Amendment No. 1:
Before Clause 1, insert the following new clause—
RESERVATION ON TREATMENT OF PRISONERS OF WAR
(" .—(1) This Act shall have effect subject to reservation on ratification of the ICC Statute by Her Majesty's Government that Article 8 do make provision to proscribe any form of slavery, the threat of such, or other humiliating and degrading treatment of Prisoners of War, and the selection and use of Prisoners of War as hostages.
(2) The form of such provision shall be as agreed by a two-thirds majority of members of the Assembly of State Parties.").
The noble Lord said: Subsection (1) of the amendment would oblige the Government to make a reservation on ratification of the statute about the provision of measures of protection and safeguard for

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prisoners of war. Subsection (2) would make the form of such a reservation a matter for the decision of members of the assembly of state parties.
As your Lordships may know, the ICC Statute will come into force when 60 states have ratified. As yet, only 27 have ratified, although well over 100 have signed, including the United Kingdom. A number of states that signed entered reservations about the proposed reform of the statute, a most notable and important example being the United States of America.
I disclosed my interest on Second Reading and set out the grounds for such a provision. There was no dissent or objection raised. I do not propose to indulge in tedious repetition. The debate is reported in the Official Report of 15th January and the material is available to your Lordships.
The amendment would not delay Royal Assent of the Bill or ratification by the United Kingdom. It would not amend the statute—it could not do so anyway. It would in no way obstruct the Government's commitment to the principle that the International Criminal Court should be set up or the implementation of our obligations under the statute. Under current procedure, members of the assembly of state parties could not give effect to such provision until about seven years had passed.
No doubt there will be many reservations on ratification concerning somewhat complex matters such as crimes of aggression, terrorist offences and jurisdiction in contest with national sovereignty. They will require definition. The amendment is relatively straightforward and simple. The situation on the protection of prisoners of war under the Geneva Conventions Act 1957 and the convention of 1949, set out on page 62 of the Bill under the first definition of war crimes, is manifestly unsatisfactory. That was broadly accepted by the House on Second Reading.
The amendment may commend itself to your Lordships in principle as a requisite measure for future protection of those taken prisoner as part of the baggage of war. I beg to move.
Lord Howell of Guildford: We all appreciate the concerns behind the amendment, which is based on my noble friend's acute and long-standing experience of the horrors of war. The more recent horrors of Saddam Hussein using prisoners of war as hostages and threatening to surround military targets with them also lie behind the amendment. I support that concern.
What is the Minister's general policy on reservations on ratification? Are we to make, as other countries have done, various declarations on the ratification status document covering a number of issues where we wish to interpret the Statute of Rome according to our own lights? And can she give an indication of what they would be? Obviously they will affect considerably the view which people take of this Bill and its effectiveness.
The Attorney-General (Lord Williams of Mostyn): I am grateful to the noble Lord, Lord Campbell of
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Alloway, for raising this question. From his earlier remarks both in the Chamber and to me outside it, I know that his concerns are based on his own distinguished service and honourable experience. I hope that I shall be able to reassure not only other Members of the Committee but the noble Lord himself that the amendment is not required for what I agree to be the legitimate and proper purpose that he seeks.
Following the Second World War, as the noble Lord mentioned, in 1949 the existing Geneva Convention on Prisoners of War was updated. The new convention introduced the notion of "grave breaches"; that is, offences against protected persons—in this case, prisoners of war—which would be subject to trial by any nation in the world. We incorporated those offences into our own domestic law as long ago as 1957 in the Geneva Conventions Act. As the Committee will have seen, they are again reflected in the Rome Statute in Article 8(2)(a).
Therefore, I believe that the noble Lord will find in that part of the statute, and therefore in Schedule 8 to this Bill, all that he wishes to achieve for the prosecution of offences against prisoners of war. Specifically included are wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, and the taking of hostages. I reaffirm that all those offences apply to offences committed against prisoners of war.
In addition, the conduct described in Article 8(2)(b) would also be criminal if committed against prisoners of war. Among those is Article 8(2)(b)(xxi), which concerns the committing of outrages upon personal dignity—in particular humiliating and degrading treatment.
As the noble Lord mentioned, during Second Reading he drew attention to the provisions of Article 8(2)(c). That applies only in non-international armed conflict where the concept of "prisoners of war" does not exist. However, the definition of those protected under that article is wide enough to include persons made prisoner or detained during those conflicts.
The particular question was raised, both in the terms of the amendment, which speaks of reservation, and in the question of the noble Lord, Lord Howell, about reservations generally. In respect of both those questions—one implied in the amendment and one specifically raised by the noble Lord, Lord Howell—I invite the Committee to look at Article 120 of the statute, which is quite short. It states that no reservations may be made to the statute. I hope that that is helpful.
However, we would expect to make a small number of interpretative statements on ratification of the Rome Statute. The purpose of those statements—I hope that this meets the point made by the noble Lord, Lord Howell—would be to express our understanding of certain provisions under Article 8 of the Rome Statute. Therefore, in answer to the brutal question, as it were, of reservations pure and simple, that point is

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dealt with in Article 120. With regard to interpretation, I hope that I have been able to satisfy the Committee.
Lord Campbell of Alloway: I thank the noble and learned Lord for his reply. It was a fairly detailed and complex reply on which I wish to reflect and have time for reflection. As at present advised, it does not cover certain of the matters—I shall not take time over them—with which I dealt at Second Reading. I have in mind one in particular the threat of humiliating and degrading treatment—as well as some others.
I wonder whether the noble and learned Lord would be prepared to entertain discussions between now and the next stage of the Bill with a view to seeing whether, in any event, the Government might be prepared to give some form of satisfactory undertaking on this matter. Of course, such discussions would be without commitment. On that basis, in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Request for arrest and surrender]:
3.45 p.m.
Lord Howell of Guildford moved Amendment No. 2:
Page 1, line 23, leave out ("shall") and insert ("may").
The noble Lord said: In moving this amendment, I shall refer also to the amendments grouped with it. As this is the first amendment to be moved from this side of the Chamber, perhaps the Committee will allow me to preface my remarks by making quite clear that, in dealing with the substantial number of amendments on the Marshalled List, we on this side welcome the aims of the Bill and are anxious to see it work effectively and efficiently and, indeed, to deal with the issues raised in the amendments as swiftly as we can.
We want to see the United States of America brought along in support of the Bill. However, from the very start our concerns, as raised in the amendments, including this one, are as follows. We should avoid a general criminalising of the use of force in international affairs; we should avoid unintended consequences, in particular that lesser offenders are brought to justice and the big offenders—the atrocitymongers—escape; we should avoid using the legislation as a political tool; and there should be protection for our Armed Forces and all servants of the state, including, indeed, politicians of all parties, against vexatious prosecution. We shall return to all those matters, but I preface the moving of the amendment with those remarks.
This group of amendments deals with requests to the Secretary of State for the surrender and arrest of accused persons. Our amendments seek to allow the Secretary of State the option, for whatever reason he thinks fit, not to initiate the sending of documents to a judicial officer, thereby maintaining the autonomy of the United Kingdom in international matters. This precise amendment under Clause 2 starts from the
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point that the Secretary of State is accountable to Parliament. We believe that he should retain a residual discretion to refuse to activate a request for arrest and surrender. We believe that no harm will be done by that let-out.
I turn to the other amendments in the grouping. Amendment No. 4 gives the Secretary of State discretion in endorsing the warrant for execution in the United Kingdom where the request for arrest and surrender is accompanied by a warrant of arrest and the judicial officer is satisfied with it.
Amendment No. 6, which leaves out "shall" and inserts "may", obviously gives the appropriate judicial officer the discretion that arises from that change of wording. Amendment No. 7 simply seeks to ensure that any request as referred to in this statute and subsection shall be in the English language and that any request referred to in subsection (2) and in this statute shall be delivered to the Home Office and a second copy to the Attorney-General. This amendment will ensure that that is included in the statute simply for the avoidance of confusion. It is in that spirit of seeking reassurance that I tabled these first amendments. I beg to move.
Lord Williams of Mostyn: I entirely accept what the noble Lord, Lord Howell, said about the general stance which he and the Opposition Front Bench have adopted.
I revert to the last remarks—I am sorry; I believe that the noble Lord, Lord Campbell of Alloway, has left the Chamber for a moment, but he will read Hansard. I reiterate what my noble friend Lady Scotland and I said earlier. We are, of course, more than happy to hold discussions with any Members of the Committee on any matter which troubles them. I am happy to repeat that for the purposes of the noble Lord, Lord Campbell.
I understand the point of the amendments, but if they were agreed to they would destroy the scheme of the statute. The Bill's purpose is to allow the United Kingdom to ratify the Rome Statute, but that statute does not make allowance for the discretion that the amendments offer. The statute makes it clear that states parties are expected to comply with requests for arrest and surrender. Clause 2 sets out the procedure to be followed by the Secretary of State. One needs to bear in mind the fact that Clause 2 deals with the duty on the Secretary of State, on receiving a request for arrest and surrender, to transmit the request and accompanying documents to the appropriate judicial officer. That is simply an obligation, not a discretion, to carry out that first step. The judicial officer then receives the request, and we should meet our obligations under the statute if the clause remains as it is currently drafted.
If discretion were introduced, nothing of value would be added to the Bill. The amendment would produce circumstances that were contrary to Article 89(1) of the statute, which provides that states parties "shall" comply with requests for arrest and surrender.

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It is not right for a Minister, for instance, to be able to decide to give no effect to such requests—that would be in breach of Article 89(1).
I cannot support Amendment No. 7, which is badly drafted. I realise that that is the classic departmental response, of which the noble Lord has had many more years of experience than I. However, that is not the best point to make in this context, so I put it to one side. The matter does not need to be specified in the Bill because, by virtue of Article 87 of the statute, a state party will, on ratification, designate the language in which any requests for co-operation will be provided by the ICC and the appropriate channel for the transmission of such requests. At that time, on ratification, we will make a designation that we will require requests from the ICC to be made in English and will specify the appropriate channel for such requests. We believe that the appropriate channel should be the Foreign and Commonwealth Office rather than the Home Office. It will be for the Foreign Office to pass on the request, as appropriate, to the Home Office, the Scottish Executive or any other relevant department. I assure Members of the Committee that that is the model we have used for meeting requests from the International Criminal Tribunals for Rwanda and for the former Republic of Yugoslavia, which I recently visited, and that that model has worked well.
I hope that I have met the noble Lord's concerns in my response to his amendments.
Lord Lester of Herne Hill: We on these Benches support the stance taken by the Government on this raft of amendments rather than that of the Conservative Opposition. I shall explain the underlying issues of principle in this context, which should add to the comments of the noble and learned Lord the Attorney-General.
As a matter of principle, the philosophy on which the ICC is based, as we understand it, is that that court, as the specialist expert court, should in the ordinary way have prime responsibility, acting in partnership with national courts and national governments, for dealing with the serious offences that fall under its jurisdiction. This raft of amendments, apart from being inconsistent with the statute, would fetter or add restrictions to the role of the ICC and would give more responsibility to national courts and Ministers of the Crown in the exercise of what would be a very broad discretion. With respect and in relation to the philosophy that underlies the statute and the Bill, it does not seem to us that that approach is sensible. When we later debate whether our courts should exercise universal jurisdiction, we shall look at the complementarity principle to establish the extent to which national courts, as well as the ICC, can bear some responsibility in appropriate cases and deal with the important question of gaps.
The amendments would limit the role of the ICC, and they would do so in relation to arguments that are really based on national or state sovereignty and the role of national institutions. That seems to us to be inappropriate in relation to a court of this special
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character. Indeed, when the noble and learned Lord, Lord Lloyd of Berwick, who was one of the Law Lords in the Pinochet case, spoke on Second Reading, he emphasised the importance of giving as much authority as possible to the ICC rather than leaving national courts with the sort of dilemmas that arose in the Pinochet case. Without speaking to the amendments' particularity, to the extent that they would limit those principles, we oppose them.
Lord Monson: I want to put a question to the noble and learned Lord. Let us suppose—heaven forbid—that at some time in the future civil strife in this country led to large-scale killing, torture and the general maltreatment of individuals. A few years later, when law and order had been restored, the government of this country might decide not to prosecute those involved in such crimes but to establish a truth and reconciliation commission instead. Unless the amendments are agreed to today or at a future date, that, surely, would not be possible. If that government did not want to prosecute those people, they would have to allow others to initiate prosecutions. Would that be desirable if it were against the wishes of that British government?
Lord Lamont of Lerwick: Will the noble and learned Lord confirm—I hope that he can make this absolutely clear to us laymen—that the proposal is that the issuance of a warrant will be sufficient and that no prima facie evidence of any kind will be required? Will he further confirm, following the Pinochet case and in relation to the provisions of extradition law, whether the Government undertook to re-examine whether it was right that someone might be held in this country for a long period with no prima facie evidence being offered? Is that the position under the Bill?
Lord Avebury: Will the noble and learned Lord also kindly confirm, pursuant to what the noble Lord has just said, that the position is exactly the same as that which obtains in relation to the International Criminal Tribunals for Rwanda and the former Republic of Yugoslavia, which he mentioned? Is it not important that whatever we do in this context follows exactly the same procedures? Otherwise, one would be in the very anomalous situation of being obliged to arrest and deliver up an alleged offender to the tribunals, whereas, with regard to the amendment, one would not be so obliged in relation to an offender who was wanted to appear before the ICC. That situation would plainly be grossly unsatisfactory.
Lord Hylton: I do not always agree with my noble friend Lord Monson but on this occasion I support the general thrust of his remarks. I do not doubt that the amendments in their current form are defective. Nevertheless, it is desirable that there should be just a little flexibility somewhere in the system so that, with regard to countries such as some of those in Central America and South Africa—and, conceivably, Northern Ireland in the future—there should be some

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ways and means of allowing a process of reconciliation to happen without necessarily applying the full rigour of the law.
Lord Kingsland: If I may respectfully say so, the noble Lord, Lord Lester, put his finger on the principle that lies behind the amendments. That principle will re-emerge time and again in the course of this Committee stage.
I should like to take a slightly different stance from that which the noble Lord has taken, at least on this occasion. Let us suppose that the Secretary of State is faced with a situation whereby the United Kingdom Government have taken the view, first, that there is sufficient evidence before them in the case of an individual to prosecute; secondly, they think it appropriate in all the circumstances to prosecute; and, thirdly, they have begun the process of prosecution. Let us suppose further that they are then faced with a request from the court to issue a warrant and transfer the person to The Hague. In those circumstances, surely it is right that the Secretary of State should have a discretion to continue the process in the United Kingdom and not to release the individual.
4 p.m.
Lord Williams of Mostyn: Those questions are dealt with by the discussions which we had on Second Reading. I know that the noble Lord, Lord Lester of Herne Hill, and other noble Lords joined in that discussion which was fundamentally to underline the rationale behind this Bill and it is entirely based on the principle—I am sorry to sound vaguely European—of complementarity. A number of noble Lords stressed, and my noble friend Lady Scotland and I underlined, that this is a jurisdiction to be exercised where the domestic jurisdiction is not willing and able to investigate and prosecute.
If there has been a genuine investigation and prosecution or a genuine decision not to prosecute, then, of course, the ICC does not have the appropriate jurisdiction. But that is not the reason that one needs the discretion. If the statute requires us to carry out certain acts, then this amendment puts us immediately in breach of the statute, and the whole purpose of this Bill is to give effect to the statute, as I thought everyone who spoke on Second Reading agreed was a good thing.
I shall now deal with one or two other specific matters. The noble Lord, Lord Lamont, asked about the Pinochet question. He rightly reminded us that there is a review of extradition law which was announced by the Home Secretary some time ago. But he will also recall very well the scheme of the Extradition Act, which I believe was introduced when he was a member of the government, and whether or not one needed prima facie evidence.
The statute says—I believe rightly—that when the request is made, the Secretary of State has an obligation to transmit that request to the judicial officer. If the United Kingdom is deciding—I take the
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question of the noble Lord, Lord Kingsland, as an example—whether to prosecute and at that time, when the decision is being arrived at, one receives an ICC request, if one looks at Clause 5(4), one finds an answer to at least some of his questions.
If one looks at Clause 5(4), one sees there—and this goes back to the complementarity point which the noble Lord, Lord Lester, discussed on an earlier occasion on Second Reading—that in the case of a person alleged to have committed an ICC crime, the competent court may,
"adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC".
So I do not believe that the issues which trouble the Committee are properly based, because that is the answer to the procedure at that stage.
In respect of the question put by the noble Lord, Lord Monson, civil strife is not a clear concept but if there were an investigation going on in the United Kingdom, that would be sufficient to halt the ICC proceedings. I do not believe that modern jurisprudence should recognise a cherry-picking approach to those matters. The noble Lord, Lord Avebury, is quite right: the criminal tribunals in respect of Rwanda and the former Yugoslavia, the latter having been the tribunal where Mrs Biljana Playsic voluntarily surrendered—in fact I was there on the very day that she pleaded not guilty to the indictment—are important tribunals to deal with matters of fundamental human rights.
There is a gap in the law at the moment. I do not think anyone doubts that. One cannot have a discretion imported in the way that the noble Lord, Lord Howell, suggested, or it may be that the noble Lord, Lord Kingsland, wishes, in those circumstances. The obligation is quite plain. It is not a discretion for the Secretary of State. If one wants to challenge the proceedings, Clause 5(4) provides the opportunity to make that challenge.
Lord Monson: The noble and learned Lord said that, in his opinion, states should not have the right to cherry-pick, and I see what he is getting at. But earlier he said that states do have the right, although I cannot find it in the Bill—perhaps it appears somewhere else—to decide not to prosecute after investigation. Will he reconcile those two concepts?
Lord Williams of Mostyn: Frequently in my present occupation, police investigations are carried out and sometimes the evidential hurdle is not passed which is contained in the guidance to Crown Prosecution Service lawyers and on rare occasions it may be in the public interest not to prosecute and on other occasions the offence can be prosecuted only with my specific fiat or authority. So there are marginal cases where, even if the evidential hurdle is passed, then prosecutions would not be brought.
But my fundamental point remains this. I believe that we all agree that the international tribunal in Rwanda should take action against, allegedly, genocidal murder on a colossal scale—murder of

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hundreds of thousands of people—and that it is right to prosecute alleged war criminals from Yugoslavia. But one cannot then cherry-pick and say that because their skin is white or their nationality is British, they are not subject to the same rules of law.
Lord Kingsland: I am most grateful to the noble and learned Lord for drawing the attention of the Committee to Clause 5(4). The noble and learned Lord could be forgiven for not recalling that I have tabled an amendment to that clause. In view of what he said, I would encourage him to accept it because my amendment enables the Secretary of State himself to go to the ICC and challenge the admissibility of the issue of the warrant.
It is not clear on the face of the Bill that the Secretary of State would have the power to do that. I take it that it is implied by Clause 5(4) that the individual who is the subject of the warrant would be able to take that action but it is not stated in terms that the Secretary of State would equally be able to so act.
If the Minister were to agree that the Secretary of State could act in those circumstances, he would provide, if not the complete answer, then the answer to a very large extent to the observations made about the current amendment.
Lord Williams of Mostyn: Clause 5(4) as a concept is capable of meeting the questions which have been raised. I shall return to the specific amendment in due time because otherwise we shall lose our way.
My point remains that there is the opportunity for challenge to the jurisdictional basis of the ICC. That is provided in Clause 5(4). When that challenge is made, the competent court—namely, the court in this jurisdiction—may adjourn and no further judicial step is taken in this country about surrender until the admissibility of the case or the ICC's jurisdiction has been determined.
Lord Monson: I wonder whether I may trouble the noble and learned Lord again in the light of his last answer to me because I cannot see any other obvious part of the Bill on which I can raise this point.
Let us suppose that a country—not this country because we would never do such a thing—elsewhere in the world decides, "We will prosecute someone for a crime (in order to get the ICC off its back) but, when convicted, we shall pass a derisory sentence or even have the president of the republic grant a general amnesty to all prisoners", and so on and so forth. Would the ICC have the right to say to such a country, "That is not good enough. You have passed a derisory sentence and let this man out after only six months. We demand that you re-prosecute the individual or turn him over to us"?
Lord Lamont of Lerwick: I want to reinforce the point. I appreciate that the noble and learned Lord has said that the matter of amnesty was touched upon at Second Reading. Unfortunately I could not be present at Second Reading, for which I apologise. I do not
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want to make a Second Reading speech, although I am interested in the point raised by the noble Lord, Lord Monson. That is how the jurisdiction of the court may apply in relation to, for example, Northern Ireland, or to domestic reconciliation processes. Perhaps the noble and learned Lord could speak to that point briefly.
On the particular point raised by the noble Lord, Lord Monson, about a domestic court passing a derisory sentence, or one that a reasonable person may conclude was inadequate, I have seen an opinion expressed by an academic at Cornell University that the statutes of the court give it authority over how sentences are applied; for example, the ICC is permitted to overrule the decisions of national governments or national courts when sentences are too lenient, but not when they are too onerous. I have certainly seen that academic opinion expressed. I would be grateful if the noble and learned Lord could give the Committee his opinion on that.
Lord Williams of Mostyn: Part of the answer is found in Article 20 of the statute:
"l. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice".
I see that the noble Lord, Lord Lamont, is nodding. To put it crudely, the framers of the statute were not born yesterday. I readily recognise that in some jurisdictions—I hope not ours—cosmetic proceedings may have been taken, simply with a view to shielding, to take the citation from the statute.
I believe that Article 20 deals with these matters that I recognise as important. If one has a dispute in relation to the consequences of Article 20—domestic prosecutions or activities in the criminal justice system—and if there is a dispute about whether it is a shield or not, under Clause 5(4) one has the opportunity for that to be the subject of an adjournment domestically and an application to the ICC itself.
Lord Howell of Guildford: I am not surprised by the nature of the reply of the Attorney-General to these amendments. I do not suppose that he is surprised that I am not surprised! The purpose of this short debate has been to show the strength of the obligations from a higher jurisdiction that the Bill intentionally places upon us. The noble Lord, Lord Lester, has made it

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quite clear that that is the intention. They are strong obligations and they place constrictions that have been emphasised in this short debate. In view of the comments that have been made and the observations of the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Hylton moved Amendment No. 3:
Page 1, line 24, at end insert—
("(1A) The Secretary of State shall not transmit a request under subsection (I) if 40 years or more have elapsed since the date of the alleged offence.").
The noble Lord said: I have tabled Amendment No. 3 in the interests of achieving fair trials and preventing miscarriages of justice. In its effect this is a long-term amendment. I do not expect to be around 40 years after the International Criminal Court has come into active being. However, I have come into contact with too many victims of miscarriages of justice, so I believe that everything possible should be done to prevent such things happening.
As a layman, it seems to me that it is most unlikely that fair trials can be mounted 40 years after the event. Key witnesses will have died, often personal appearances will have changed almost out of recognition and memories will have become clouded or highly selective. In my view, some kind of statutory limitation is necessary beyond which it is not possible to bring charges. I admit that 40 years is an arbitrary figure and it may be that a shorter period would be preferable. I understand that Belgium has a limitation of 30 years even for the most serious crimes.
It is clear that in discussing the present Bill we cannot amend the statute of the International Criminal Court. However, I regret the rigidity of Article 29 and the possibly vindictive attitude of some NGOs that have supported it. The only options open to us are either to enter reservations to our ratification, as has been suggested by the noble Lord, Lord Campbell of Alloway, or to restrict the ability of the Secretary of State to act on request, as in my amendment. Therefore, this amendment has a probing character. I look forward to hearing the reply from the Government. I beg to move.
Lord Monson: The noble Lord, Lord Hylton, was good enough to support me on an earlier amendment and I have pleasure in reciprocating by supporting this amendment, not only for the reasons that he has eloquently advanced, but also for other reasons. As I argued at the time of the War Crimes Bill, what on earth is the point of prosecuting people who are in their 70s or 80s—those in their 60s may be a borderline matter—for crimes that they may have committed when teenagers, caught up in the transient political passions of the moment? However serious those
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crimes, those people may have led perfectly blameless lives in the intervening 50 or 60 years. What is the point of prosecuting them?
Lord Lester of Herne Hill: I well understand the concerns expressed by the noble Lord, Lord Hylton, but with great respect to him I believe that he is mistaken, as is the noble Lord, Lord Monson.
We do not have a statute of limitations in this country for the crime of murder. Someone who murders on a massive scale or who is guilty of torture is no more deserving of sympathy from the point of view of limitation than anyone else. The statute of the ICC deals with the problem in a sensible manner. Article 29 rules out an automatic statute of limitations, but Article 64 is one of several provisions that confers strong protection on the accused, stronger than is given in the express language of the European Convention on Human Rights and stronger than is given in the International Covenant on Civil and Political Rights. One of the overriding objectives in Article 64, paragraph 2, is that the trial chamber must ensure that a trial is fair and expeditious and conducted with full respect for the rights of the accused.
From all the international human rights case law, it is quite clear that, where it is impossible to conduct a fair trial because witnesses have forgotten facts and the events are so stale, the trial chamber or court will stay the proceedings just as they will in this country or in any other country that respects the rule of law. Therefore, the International Criminal Court is given a very wide discretion. In addition, there are very stringent obligations on the independent prosecutor to ensure that the rights of the accused are respected. We should take that into account. That seems to me the right way of dealing with it—not to have an arbitrary 20-year limitation period, which we do not have in our own legal system for very serious offences, but to leave it to the trial judge and the prosecutor to exercise their discretion on the basis of proper legal principles. For that reason, I oppose the amendment.
Lord Monson: Before the noble Lord, Lord Lester, sits down, will he agree that a person of, say, 78, is a totally different person in every way from that same person at the age of 18?
Lord Lester of Herne Hill: I agree with that. However, some crimes are committed in extreme circumstances. To make it a little less prejudicial than the way it is put, if someone between the age of 25 and 30 commits mass murder, the crime of genocide, and is exposed 30 years later at the age of 50 or 60, under the statutory limitation, prosecution would automatically be ruled out. That would not accord with the purposes of the International Criminal Court or the general law relating to humanity and war crimes. The discretion has to be built in. The discretion is not about forgiveness. It is about whether there can be a fair trial.
Lord Avebury: The crime of genocide and crimes committed in grave breach of the Geneva conventions

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are already subject to no limitation. It surely would be an anomaly to insert into this Bill a limitation which would then automatically apply to the crimes deemed to be so serious that there should be no limitation on them.
I should like to ask the noble Lord, Lord Hylton, to consider another argument. Technological advances in the field of forensic evidence may make it possible for an offence to be brought to court years after the event. We have experienced that in our own domestic courts. The remarkable technological advances relating to DNA matching have enabled us to bring murderers to justice years—perhaps not as many as 40—after the crimes had been committed. One recent case was brought to trial well over 20 years after the commission of the offence. We do not know what technological advances might be made in the future, enabling us to bring to trial people who may be prosecuted before the International Criminal Court under these provisions. For that reason, it surely would be unwise to fetter the jurisdiction in the way suggested by the noble Lord.
Lord Williams of Mostyn: There is a fundamental difference of approach here. First, this is not retrospective jurisdiction. The noble Lord, Lord Hylton, is therefore quite right on one basis, although he is quite wrong in the proposition that he will not be here in 40 years' time to scrutinise the working of this legislation. So his amendment—and this must be a first, even in your Lordships' House—would only come into effect 40 years from now.
I entirely agree with what has been said by the noble Lords, Lord Avebury and Lord Lester. Our jurisprudence does not normally operate on the basis of a statute of limitations. Hitler was not an old man between 1933 and 1939; nor was Stalin, at the height of his crimes; nor was an extremely young officer in the German armed forces named Eichmann; nor was Beria very young. All I can do is quote, and then modify, what Senator Irvine said in the Nixon hearings: "God is not mocked". I say that justice should not he mocked by the passage of time.
Lord Hylton: I appear to have started a hare, and perhaps, from a layman's point of view, quite a good hare. I shall certainly reflect on what has been said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Lord Kingsland moved Amendment No. 5:
Page 2, line 11, after ("demonstrate") insert ("beyond reasonable doubt").
The noble Lord said: This amendment concerns Clause 2(4) of the Bill. It deals with a situation in which an individual has been convicted by the International Criminal Court but the subsequent request for his arrest and surrender is not accompanied by a warrant of arrest. The Bill stipulates that if, nevertheless, the request is accompanied by a copy of the judgment of conviction, information to demonstrate that the
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person sought is the one referred to in the judgment, and a copy of the sentence imposed, the responsible judicial officer shall issue a warrant for the arrest of the person to whom the request relates. This amendment relates to that part of the clause concerning the information to demonstrate that the person sought is the one referred to in the judgment.
In our submission, a high standard of proof should be required before the judicial officer issues the warrant. I hope that the noble and learned Lord the Attorney-General will agree that it is very important for the courts to make sure that the right person is surrendered. In my view, it is highly desirable that, in those circumstances, the standard of proof should he "beyond reasonable doubt". I beg to move.
Lord Williams of Mostyn: I am not willing to accept this amendment. Clause 2(4)(b) and 2(4)(c) reflect the wording of the statute. The amendment to Clause 2(4)(b) precisely follows the wording of Article 91(3)(e) of the statute. If the request were made, a copy of the judgment of conviction provided and information to demonstrate that the person sought was the one referred to, the point about identity would be taken in the court itself. First, I submit that since we are putting the statute into effect in this Bill, it is right to do it in this way. Secondly, there is nothing inconsistent with the normal judicial pattern in extradition hearings.
We have had experience, fortunately not too recently, of rather tendentious arguments about technical points. My view is that the proper way in which to proceed is to provide the safeguards in the statute and that ultimately, if it is suggested by a convicted person that he is wrongly held in custody, it should be for the trial court to determine that issue.
Lord Kingsland: I am most grateful to the noble and learned Lord for his reply. It is clear that the International Criminal Court knows who the right person is. The problem faced by our courts is making sure that the person before them is the right one. There must be some standard required of the court in those circumstances. If the noble and learned Lord is not prepared to accept "beyond reasonable doubt", would he be prepared to accept "more likely than not"? If he is not prepared to accept "more likely than not", it would mean that, even where the court was less than 50 per cent certain that the person in front of it was the right person, somebody might find themselves on their way.
4.30 p.m.
Lord Williams of Mostyn: The difficulty with that approach is that if the single issue before the ICC is identification—for example, that was the question before the Israeli Supreme Court in the case of Demjanjuk—that matter will be relitigated at an inappropriate stage. I believe that here there is every safeguard at the early stages. To paraphrase the position, this is merely a request for the surrender of a convicted person to the jurisdiction of the ICC. If it is to be said that the wrong person has been arrested, that

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point should be made in the convicting court, not as a preliminary issue to be decided beyond reasonable doubt.
If the present drafting of the Bill requires that matter to be demonstrated, then it must be more likely than not for the demonstration to have occurred. If it is less likely it has not been demonstrated. I do not prejudge the decisions of courts, but I believe that that follows. Let us assume that the noble Lord, Lord Kingsland, and I sat in court and heard an application to demonstrate something. If either of us concluded it was very unlikely that that was right, we would not have satisfied ourselves judicially that the matter had been demonstrated.
Lord Kingsland: The noble and learned Lord answers my point and goes some way to meet the problem that I pose. In his view it would be absurd if a court did not satisfy itself, at least on the balance of probabilities, that the individual before it was the individual described.
Perhaps I may assist the noble and learned Lord in this dilemma so that he does not face it in future debates in Committee. The noble and learned Lord referred on several occasions to the statute. Does the noble and learned Lord agree that the correct approach to the interpretation of the statute is a purposive one and that it would be wrong to become simply a prisoner of the text? If so, surely in considering the Rome statute he should apply the same interpretative approach as he would apply to our own statutory law.
In the context of the Human Rights Act, perhaps the noble and learned Lord will go further and say that his approach to the statute is on the basis of Section 3(1) of that Act. I cannot judge whether the noble and learned Lord the Attorney-General would be prepared to go that far. However, as the noble and learned Lord recognises, it is commonsense that a court must be satisfied on the balance of probabilities. I would have preferred him to go further and accept the text of the amendment which requires that the court be satisfied beyond reasonable doubt. For present purposes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Lamont of Lerwick: I should like to raise three points on Clause 2. First, can the noble and learned Lord tell the Committee what details must be satisfied as regards the warrant? Subsection (3) provides:
"If the request is accompanied by a warrant of arrest and the appropriate judicial officer is satisfied that the warrant appears to have been issued by the ICC".
I assume that there are some other criteria which the warrant must satisfy and it is not sufficient merely that it is a document issued by the court. Presumably, that document must be drawn up according to certain rules.
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My reason for raising this matter is prompted by an issue which arose in the case of General Pinochet. The noble and learned Lord will recall that in that case the Lord Chief Justice held that the arrest warrant was not a good one. Subsequently when that document was referred to as a defective warrant the noble and learned Lord was quick to say, no doubt correctly, that it was far from being defective but none the less it was not good. I should like the noble and learned Lord to tell the Committee what criteria the warrant must meet other than simply that it is issued by the ICC.
My second point is a more general one. The noble and learned Lord has rejected the amendments tabled by my noble friends on the Front Bench and referred to the demands of the statute and, therefore, the need for automaticity. That is all very well, and I follow the logic of it. However, perhaps to anticipate a point to which the Committee will turn later, Clause 65 is concerned with the doctrine of command responsibility. Whether the commander of certain forces really has control over the behaviour of his troops is a very subjective matter. Some jurists have been very critical of a number of the judgments that have been made, particularly as regards people convicted in the Far East after the Second World War. I am also aware that a number of eminent American jurists have been extremely critical of the way in which that command responsibility was applied after the Second World War. Therefore, I believe that the points made by my noble friend on the Front Bench must be looked at in the context of command responsibility, which can be very subjective.
Thirdly, I should like to repeat the point that I put to the noble and learned Lord in relation to the amendments. The noble and learned Lord had many points to answer but he did not manage to deal with that question or the matter raised by the noble Lord, Lord Monson. How will these provisions apply when a national government wishes to have a domestic amnesty? How will they apply in the case of Northern Ireland when sometimes political decisions are made about the most horrendous crimes committed on our own soil?
Lord Lester of Herne Hill: Perhaps in responding the noble and learned Lord can confirm that my understanding of the position in relation to the first point raised by the noble Lord, Lord Lamont, is correct. In Clause 2—request for arrest and surrender—subsection (3) provides that the judicial officer must be satisfied, according to normal principles of English administrative law, that the warrant appears to have been issued by the ICC and endorse it for execution. When one reads that provision together with Clause 5(2)(b), the competent court—the UK court—must be satisfied,
"that the person brought before the court is the person named or described in the warrant".
According to my understanding of English law, that means that the court must be satisfied on the basis of proper material.
If one ties that in with the ICC statute just to see how

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full the safeguards are, Article 59(2), which deals with arrest proceedings in the custodial state, provides:
"A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State"—
that is to say, the normal English principles of public law—
that,
(a) The warrant applies to that person"—
that must he decided to the appropriate standard on the basis of proper evidence—
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected".
If my understanding is correct—I should be grateful if the noble and learned Lord can confirm it or otherwise—it appears that there are adequate safeguards against any abuse or miscarriage that may arise both under the statute and the statute read together with Clause 2 of the Bill.
Lord Avebury: I have one additional point only to add to what the noble Lord has said about the contents of the warrant. That is the provision of Article 91, paragraph 2(c), of the statute where it states that the documents must contain,
"such information as may be necessary to meet the requirements for the surrender process in the requested State".
It goes on to provide that,
"those requirements should not be more burdensome than those applicable to requests for extradition"
in the normal course of extradition proceedings. Therefore, the warrants supplied by the International Criminal Court have to be at least on all fours with those which are provided for extradition under treaties in force that we have signed with other states.
Lord Williams of Mostyn: The noble Lord, Lord Lamont, really asked questions with three aspects. The first related to the technical quality of the warrant document. I believe that he will find the answer to that question at paragraph 5 to Schedule 1 to the Bill. That states:
"An order, judgment, warrant or request of the ICC which purports—

to bear the seal of the ICC, or

to be signed by a person in his capacity"—

then I omit some words because they are on the face of the Bill. That is not dissimilar to—I say I hope by way of assistance—the kind of scheme that we adopted successfully some years ago; the backing of warrants regime with the Republic of Ireland. So I hope that that deals with his technical question on the nature of the warrant.
The second question he raised related to command responsibility. Since Nuremberg—about which I know there are differing views—the principle of command responsibility is well-developed in international law. I do not think that it is subjective; it is perfectly simple. Indeed, if one had domestic proceedings in this country and a commanding officer in the Armed Forces gave an unlawful order which was
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then carried out resulting in death, both the soldier and the person who gave the unlawful order are liable to be tried for murder. It is not a difficult concept; it is a question of proof in particular circumstances.
Lord Lamont of Lerwick: With great respect to the noble and learned Lord, is that really what "command responsibility" means? I know we shall debate this issue later, but my understanding is that command responsibility might be held to apply even though there is no actual concrete evidence that a general or a commanding officer had actually issued any such orders. The case that I referred to—I am afraid I do not have the details here but I intend to refer to it when we come to the relevant clause—related to a Japanese general who was executed in the Philippines. A good many people were critical that there was no evidence, but none the less command responsibility was alleged to apply to him simply by merit of his rank and the bad behaviour of his troops. No one questioned that the troops behaved badly.
Lord Williams of Mostyn: The noble Lord is probably right that we should deal with the matter in its appropriate place. But I do not think there is a difficulty about proof of command responsibility. It may be proved directly in the illustration I gave; it may be proved structurally. But that is a matter of whether the court is satisfied beyond reasonable doubt that the charge has been made out. However, as the noble Lord said, we shall refer to this matter later.
The noble Lord returned to the question of amnesty. These are crimes of the gravest kind. It is extremely unlikely that an amnesty could legitimately he given. But the answer to the question is that the ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty had been proclaimed, but not where it was a purely bogus or cosmetic amnesty for illegitimate purpose.
Clause 2 agreed to.
Clause 3 [Request for provisional arrest]:
[Amendments Nos. 8 and 9 not moved.]
4.45 p.m.
Lord Kingsland moved Amendment No. 10:
Page 2, line 38, leave out ("instruct") and insert ("request").
The noble Lord said: Amendment No. 10 concerns a Scottish matter. It arises under Clause 3(3). There is a view that Scottish Ministers should refer the application for a provisional arrest warrant to the procurator fiscal for his or her consideration. It should then be a matter for the procurator fiscal to determine whether the criteria for justifying such a warrant have been met and whether the application should be submitted.
As the noble and learned Lord the Attorney-General is aware, in the Bill as currently drafted, the procurator fiscal would have no discretion to decide whether an application is appropriate. That would represent a

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significant departure from the procedure of applying for warrants in other criminal cases. I beg to move.
Lord Williams of Mostyn: This is back to the earlier discussion between "shall" and "may" but is put slightly differently because of the different context of "instruct" and "request". My stance remains the same. What is provided here is a similar scheme; namely, if it appears to the Secretary of State that an application for a warrant should be made in Scotland,
"he shall transmit the request to the Scottish Ministers who shall instruct the procurator fiscal",
but simply to take the step of application for a warrant for the arrest of that person. It seems to me that there is no difference in the scheme, apart from the wording, to that which Members of the Committee have already agreed.
Lord Kingsland: I thank the noble and learned Lord the Attorney-General for his reply, which did not in any way surprise me. Under Clause 3 the Secretary of State has a wider discretion than under Clause 2, because in Clause 3(2) there is the expression:
"If it appears to the Secretary of State that application for a warrant should be made in England and Wales".
If I may respectfully help the noble and learned Lord, I hope not for the only occasion in the course of the Committee stage, that seems to be a proper distinction to draw between the circumstances of Clause 3 and the circumstances of Clause 2. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howell of Guildford moved Amendment No.11:
Page 2, line 40, leave out from beginning to ("shall") in line 41.
The noble Lord said: This is another amendment of Scottish provenance. The amendment seeks to ensure that before an application for a provisional arrest warrant is made in Scotland, the procurator fiscal must be satisfied that the request has been made by the International Criminal Court on grounds of urgency and that the person is either in Scotland or on his way to Scotland.
We believe it is generally agreed that it is necessary to ensure that there is some degree of scrutiny given to requests for provisional arrest warrants before an application is made. This should ensure that the conduct will be proportional to the desired outcome. I am advised that the Bill as currently drafted makes provision for a constable in England and Wales to consider these issues before making an application for a warrant. The amendment will ensure that the position in Scotland is similar to that in England and Wales. I beg to move.
Lord Williams of Mostyn: I am the man in the Bateman cartoon. I believe the noble Lord is right in respect of Amendments No. 11 and 12. I am happy to accept them.
On Question, amendment agreed to.
Lord Howell of Guildford moved Amendment No. 12:
Page 2, line 40, at beginning insert—
("if the procurator fiscal is satisfied—
(i) that a request has been made on grounds of urgency by the ICC for the arrest of a person, and
(ii) that the person is in, or on his way to Scotland,
the procurator fiscal shall make an application for a warrant to an appropriate judicial officer and that officer").
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
Clause 3, as amended, agreed to.
Clause 4 [Dealing with person arrested under provisional warrant]:
Lord Howell of Guildford moved Amendment No. 14:
Page 3, line 2, after ("court") insert ("or courts-martial in the case of service personnel").
The noble Lord said: Clause 4 deals with a person arrested under warrant. The person arrested under a provisional warrant is required to be brought before a court as soon as possible. That is established law in criminal matters generally. Clause 4 appears to make no allowance for service personnel who would otherwise be brought before a civilian court under the Bill as it stands.
The amendment seeks to ensure that service personnel are brought before a courts martial, a court of the type with which they are familiar. It seems to us right that military personnel do appear before a courts martial as civil courts might not be best placed to understand many complex issues in the circumstances in which some of these horrific crimes are alleged to have occurred. These are often circumstances of war or of high complexity and difficulty, where a courts martial is the proper way forward. I beg to move.
Lord Williams of Mostyn: Amendment No. 14 relates to provisional warrants under Clause 4 of the Bill. It proceeds on an incorrect understanding of the relationship between courts martial and standing courts. Courts martial are not standing courts; they are ad hoc courts that come into existence for particular cases. There is no role for a court martial in delivery proceedings any more than service personnel would go to a court martial for extradition proceedings. The analogy is a good one. The court martial deals with certain offences committed by military personnel, but not all. The only point of Clause 4 is to deal with those who are arrested under provisional warrants, so there is no role for the court martial. Military personnel would have their interests safeguarded in the same way as any other accused person arrested under provisional warrant; namely, in the usual courts.
Earl Attlee: I must inform the Committee that I have an interest. I am a serving officer in the Territorial Army. I might be caught by the Bill if I misbehaved myself; but I hope that that would never happen. Can the noble and learned Lord the Attorney-General say what will happen if the ICC wants to prosecute someone currently serving in HM Armed Forces

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overseas where there is no convenient court to attend, but where it would be possible to convene a court martial very quickly?
Lord Williams of Mostyn: It is possible to convene a court martial very quickly. They are not standing courts for the purposes of dealing with provisional warrants any more than they are standing courts for dealing with extradition proceedings. That is the true answer to the question. There is no difficulty these days in getting someone back from Germany, Cyprus or wherever to be dealt with in the court at Bow Street in the usual way.
Lord Howell of Guildford: I confess that I am not entirely happy with the noble and learned Lord's reply. The analogy with extradition seems to be not quite the right one. As I understand it, the whole point of the Bill is to avoid the complexities and delays inherent in the extradition process in order that in the wider world monsters and barbarous perpetrators of crimes can be swiftly obtained and brought before the International Criminal Court. To say that military personnel would be as protected as they are in extradition proceedings cannot be right. They are not as protected because the ICC—through the complementarity process and through the obligations that we are laying on ourselves by giving powers to this higher jurisdiction—has the power to investigate, unless the state party says that it is already investigating, and to seek to charge or issue a warrant against an individual member of the Armed Forces. That is where much of the worry lies, as I am sure will be familiar to the noble and learned Lord.
There seems to be a considerable volume of worry in this country, and more so in the United States of America, about the vulnerability and openness of service personnel to investigations and possible charges which may arise from other people's and other countries' definitions of what are war crimes which may not be our definitions. They may be definitions with which we are not prepared to deal in a court, or which a court martial would be able to identify as vexatious from the start.
The reply leaves a kind of pall of unease over service personnel.
Lord Avebury: Can the noble Lord explain what he means by other countries' definitions of war crimes? Is there not only one definition of war crimes? That is the one contained in the statute.
Lord Howell of Guildford: This may be why the Republic of France has put down a declaration on the face of the ratification status about military objectives. The difficulty arises when one comes to define a military objective and whether an act which is regarded as a war crime by those who experience and suffer it—bombarding a village in war and killing civilians—but not by those who carried out the bombardment is a war crime. This is where the difficulty arises. The noble Lord, Lord Avebury, is right. The definition of war crimes is there. But the difficulty begins when we include it in our national
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legislation and bring in this higher jurisdiction which we want to aim at the right targets We will not get far by dismissing the difficulty that exists. It is our duty to try to clarify it.
This is a matter that we would wish to pursue at Report stage. In view of the position taken by the noble and learned Lord, Lord Williams of Mostyn, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. l5:
Page 3, line 2, leave out ("as soon as is practicable") and insert ("not later than the first day after the person has been taken into custody, such day not being a Saturday, Sunday or court holiday").
The noble Lord said: Amendment No. 15 concerns the words "as soon as is practicable" in Clause 4(1). Our amendment ensures that a person arrested under a provisional warrant is brought before a competent court on the next lawful day after arrest.
Section 105(3) of the Criminal Procedure (Scotland) Act 1995 provides that a person arrested under a warrant, or by virtue of powers of any enactment or rule of law, shall, wherever practicable, be brought before a competent court not later than the first day after being taken into custody, such day not being a Saturday, Sunday or holiday. This rule applies in Scotland in the most serious cases, such as murder and rape. We can see no reason for departing from this general rule, even in the case of this Bill. This amendment would avoid the difficulties of deciding whether the person was brought before a competent court as soon as was practicable having regard to the circumstances of each case.
I turn to Amendment No. 16. It is our view that there is no justification for a remand in custody on presentation at court if a provisional warrant cannot then be produced. Amendments Nos. 17 and 19 are intended to avoid a situation where there is an indefinite remand in the absence of the production of a warrant.
Finally, Amendment No. 20 seeks to insert into Clause 4 the words:
"Where a person has been discharged under this section. he shall not be arrested under a subsequent section 2 warrant unless the court is satisfied that such an arrest is not oppressive".
Clause 4(7) allows for a person discharged under Clause 4 to be arrested again under a Clause 2 warrant. By leaving out Clause 4(7) and inserting the amendment, the person will not be arrested again, thus stopping a witch-hunt against that person and avoiding what would otherwise appear to be his persecution. I beg to move.
5 p.m.
Lord Williams of Mostyn: As the noble Lord said, the amendments all relate to the question of provisional warrants. Perhaps I may deal first with the suggested time-limits. I do not believe that time-limits of this nature are the most effective course. Provisional warrants may be issued for very dangerous and elusive

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subjects. In this category of crime, we should not run the risk that they will simply walk free on a technicality.
I understand the concerns that have been expressed and I assure the Committee that every effort will be made to bring those arrested on a provisional warrant before a competent court as soon as is possible in the circumstances. Indeed, the equivalent provisions in the Extradition Act have not given rise to any problems.
Perhaps I may now deal with the amendments relating to remand and bail, as set out in Clause 4. The noble Lord proposes an amendment to subsection (3) of Clause 4 which would ensure that all those arrested under a provisional warrant would be given unconditional bail. That is related to a proposed amendment to Clause 16, to which we shall come in due time, making remand on bail applicable only in England and Wales. I understand the intention but I do not believe that we ought to alter the Bill in that way. I repeat that those who would be applying for bail would be linked to some of the gravest crimes known. I do not believe that we should ever consider unconditional bail in those circumstances. My understanding is that the course suggested in the amendment would be contrary to Article 59 of the statute. That is why Clauses 16 to 18 are important. They provide clear criteria for the granting of bail.
Finally, I should like to turn to the length of time that a person may spend on remand. The Bill as drafted allows for the incorporation of the ICC rules of evidence and procedure on this matter. The rules, which will be finalised at the first Assembly of States Parties, are currently drafted to allow for a 60-day maximum period on remand, after arrest on a provisional warrant. Amendments have been tabled which would take away our ability to incorporate those rules on time limits and also ensure that there is no extension of a period on remand.
An alternative time limit of seven days has been suggested. However, I believe that we should adopt the same standards as the ICC. The total period of remand for 60 days pending receipt of the full request is consistent broadly with the 40 to 60-day periods that apply in extradition cases. That will give the ICC time to assemble the appropriate documentation, while ensuring that a person will not be held unjustifiably.
The noble Lord also proposes an amendment to subsection (7). That would prohibit the re-arrest of someone discharged if that arrest is "oppressive". I am not sure how one is able to define that in all the circumstances. The amendment would interfere with our ability to meet our obligations. If a Clause 2 warrant is issued, we should do everything we can to assist in the execution of that request.
I take the point underlying what the noble Lord, Lord Kingsland, said. It would not be right to harry people unnecessarily. But a 60-day period is not unreasonable if one thinks of the general context of criminal proceedings in this country in cases of serious charges. I stress that the rules will be important. If the noble Lord, Lord Kingsland, still feels unhappy, I
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hope that he will take up my offer of a meeting. I am perfectly happy to discuss these matters with him. They are quite fine matters—sometimes matters of fine detail. In all the circumstances, I hope that he will not press the amendment at this stage.
Earl Attlee: When we are negotiating the rules and procedures, what kind of negotiating clout does the noble and learned Lord enjoy? Does he have a veto, or does majority voting apply?
Lord Williams of Mostyn: It is a great sadness to me that the noble Lord, Lord Pearson of Rannoch, is not sitting behind the noble Lord, Lord Lamont, on this occasion. It is not a question of majority voting. I anticipate that a consensus will emerge. My guess is that 60 days will be about the period—in exactly the same way that one hascustody limits in Scotland and custody limits in England and Wales in serious cases. They tend to work quite well. One needs a decent balance between the legitimate public interest in successful prosecution and the legitimate individual interest that someone is not kept unduly long in a state of limbo.
Lord Kingsland: I thank the noble and learned Lord for that reply. He will not be surprised to hear that I am by no means entirely satisfied with his responses. Nevertheless, he has generously suggested that it is a matter that he might like to take up between Committee and Report stage. In those circumstances, it would be churlish of me to press the matter today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 to 20 not moved.]
Clause 4 agreed to.
Clause 5 [Proceedings for delivery order]:
Lord Howell of Guildford moved Amendment No. 21:
Page 3, line 28, after ("court") insert (", or courts-martial in the case of service personnel,").
The noble Lord said: Amendment No. 21 is similar in kind to Amendment No. 14. I suspect that the noble and learned Lord's response to it will be similar. We are dealing here with persons arrested under warrant. The clause provides for the person to be held on remand pending the production of a warrant. As the clause stands, where no warrant is forthcoming, a civilian court issues a remand pending the production of such a warrant. The amendment is directed at service personnel. It seems to us unfair that the court martial should not be the route for such persons, as that is the best place—I fully accept that a court martial is not a permanent structure—to deal with a particular matter arising from an investigation, charge, warrant and so on—the entire procedure as instigated by the International Criminal Court.
The amendment ensures that service personnel are protected by appearing before a court martial, which would understand the issues best. I emphasise that I am dealing here with procedures. I was tempted by the

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question of the noble Lord, Lord Avebury, to get into the matter of crimes and their definition, which of course we shall be discussing later on.
Lord Goodhart: With respect to the noble Lord, will he explain what the issues are? If the issues are as they seem to me to be—only those which are specified in Clause 5(2)—I see no reason why a court martial should be in any sense a more suitable court to decide them than an ordinary court. If the noble Lord is suggesting that the court martial is a suitable court because it would be able to look into the merits of the matter, then is he not raising issues which go entirely against the pattern of the Rome statute?
5.15 p.m.
Lord Howell of Guildford: No, I am dealing with procedures here as they affect service personnel. I suggest that, in the case of service personnel, the kind of procedure outlined in this amendment would help to provide one of the assurances which needs to be given—if we are to have an effective court—to those in our armed services who have expressed fears which I should like to see laid to rest; namely, that such personnel may become the targets of vexatious, politically motivated or score settling charges instigated by the views of others who may have strong reasons for believing that certain crimes are war crimes. This amendment attempts in part to meet those concerns. I believe that this is a genuine attempt to reach a resolution of this problem. I beg to move.
Lord Avebury: It seems to me that the noble Lord, Lord Howell, has based this amendment on a total misconception of what happens at this stage in the proceedings. The ingredients of the offence will not be examined by the competent court. All that it has to do is to satisfy itself that the warrant is one that has been produced by the ICC, that has been duly issued under Clause 2(4) and that the person brought before the court is the person named or described in the warrant.
The issue to which the noble Lord refers—namely, whether a particular event should be classed as a war crime—is something which would not come into the picture. At that stage the competent court would not have to examine that issue. That is reserved for the International Criminal Court when the individual who is the subject of the warrant ultimately appears before that court. At this stage the issue is one purely of procedure; namely, whether the requirements specified in Clause 2(4) have been complied with fully. I cannot see the merit of the noble Lord's argument.
Lord Williams of Mostyn: I understand the reasons why the noble Lord, Lord Howell, has raised this question and I join with him in his wish to lay to rest any fears which are not justified. The way to do that is to progress along the route suggested by the noble Lords, Lord Goodhart and Lord Avebury; namely, to focus on the text and the context that is relevant here.
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The amendment seeks to insert after "a competent court" the words,
"or courts-martial in the case of service personnel".
This would give service personnel a different venue. A "competent court" is defined designedly in Clause 26 on page 14 of the Bill. A "competent court" means a court consisting of an appropriate judicial officer. That would be the senior district judge, whom we always used to refer to as the "chief stipendiary at Bow Street" or a district judge—formerly a stipendiary—designated by the Lord Chancellor or, north of the Border, the sheriff of Lothian and the Borders. Those courts comprise the "competent court".
The noble Lords were right to point out that on this occasion all the court has to do, according to the provisions of Clause 5(2), is to satisfy itself,
"(a) that the warrant—

(i) is a warrant of the ICC and has been duly endorsed under section 2(3), or

(ii) has been duly issued under section 2(4), and

(b) that the person brought before the court is the person named or described in the warrant,
it shall make a delivery order".
That is a very limited function indeed.
As regards the identity of the defendant, I shall say quite carefully that that is not relevant in this particular context. It would not matter if he was a field marshal or a police constable. Both are serving in disciplined services. The police officer would probably be dealt with at Bow Street, while the sergeant-major, major or major-general would also be dealt with in the same tribunal but only on the limited basis set out in Clause 5(2). Courts martial do not even exist until a convening order has been signed. One would not want a court martial to be convened on an order simply to deal with such limited matters.
I hope that this has been helpful. If fears have been expressed, then I entirely accept them. I hope that I have been able to lay those fears to rest. The jurisdiction of the competent court is limited in the extreme here. It would not be entitled to go into the wider issues that the noble Lord had in mind.
Lord Howell of Guildford: I see that, under the Bill as drafted, the delivery court will operate on tramlines, within an extremely limited range. It is required to satisfy itself on only a limited number of matters set out in Clause 5(2). For that reason, I accept the point made by the noble and learned Lord. A court martial called together for the purpose could not do anything different.
There remains, however, the serving man's and serving woman's perspective, which we should respect. If they were to be caught up in these processes in a manner where there was room for doubt—we cannot always assume clarity in such circumstances—they would expect to appear before military courts at all stages of the process. That expectation will not be met in this case. It may be that the expectation is naïve, given that the court cannot do very much. Nevertheless, the expectation is there and I believe that we must move gingerly and carefully before

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discounting it and pushing it to one side. However, I accept the force of the argument put forward by the noble and learned Lord in the context of this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 22:
Page 3, line 28, leave out ("as soon as is practicable") and insert ("not later than the first day after the person has been taken into custody, such day not being a Saturday, Sunday or court holiday").
The noble Lord said: I rise to move Amendment No. 22 and to endeavour to speak to Amendments Nos. 23, 25 to 28, 30, 31, 32, 33 and 35.
Noble Lords will see at a glance that the text of Amendment No. 22 is identical to the text of Amendment No. 15. I have already spoken to that amendment and the noble and learned Lord the Attorney-General has already replied to it. For that reason, I have no need to repeat what I have said and I do not think that he will need to repeat his words either. The point has been taken and we shall await the Report stage.
In a sense, Amendment No. 23 deals with a similar issue. In our view, there is no justification for detention other than within a fixed time period. The noble and learned Lord adverted at least in part to that general point in his previous reply.
So far as concerns Amendments Nos. 25 to 28, the issue here is that in the event of a challenge, what justification can be put forward for remanding a defendant in custody for an indefinite period? Perhaps I may pause at this point and ask a question of the noble and learned Lord. I believe that one of these amendments has been declared inadmissible. Am I right in thinking that it is Amendment No. 30?
Lord Williams of Mostyn: I believe that it is Amendment No. 30A.
Lord Kingsland: That is one of my amendments. As regards Amendment No. 30, we submit that the present text cannot be compatible with rights protected under the Human Rights Act 1998. The statute does not specify which rights must be respected. It does not say what would happen if a domestic court determines a violation of Clause 5(b) or (c). It then follows that, even if a warrant for arrest is irregular, wrong in law or factually flawed, the United Kingdom Government would not be able to do anything about those breaches other than to surrender the suspect. In those circumstances, for example, a British citizen who is a member of the Armed Forces will have no rights.
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As to Amendments Nos. 31, 33 and 35, again the point is that the rights of the citizen should be clearly set out in the legislation and properly defined in the Act. That does not appear to be the case. I beg to move.
Lord Lamont of Lerwick: I support my honourable friend on Amendment No. 30.
A noble Lord: Your noble friend.
Lord Lamont of Lerwick: My noble friend. We must get these things right, must we not? We must not concentrate on the substance; we must concentrate on the form. That is the important thing in this House, to concentrate on the form.
Lord Williams of Mostyn: We can do both.
Lord Lamont of Lerwick: We can do both, but that is beyond some of us.
I support Amendment No. 30, which seeks to leave out subsections (5) and (6). It seems to me a somewhat strange provision that, under Article 59.4, it is not open to a domestic court to consider whether the warrant of arrest was properly issued by the International Criminal Court. This means, presumably, that the International Criminal Court alone can judge whether the warrant that it issued is valid. One may have doubts about whether this will be impartially applied—because of the eagerness of the court to demonstrate success; the eagerness of the court to have a trial; the eagerness of the court to satisfy political pride—and it would surely be better if another court was able at least to give a preliminary judgment as to whether the warrant had been properly issued. It seems unsatisfactory that the court which issued the warrant should decide whether the warrant was properly issued.
For that slightly different reason I am concerned about this provision. I support the line taken by my noble friend on the Front Bench.
Lord Lester of Herne Hill: Perhaps I may say a few words about how I understand the matter. What I say now will, in a way, presage what I shall say later on Amendments Nos. 56, 57, 59 and 60, which concern habeas corpus and judicial review.
My understanding is that the provision works in this way. Under Article 59.2 of the ICC statute,
"A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that state"—
that is, English law—
"that

"(a) The warrant applies to that person:

"(b) The person has been arrested in accordance with the proper process; and

"(c) The person's rights have been respected".

That is translated into English law, as it were, at two stages in the Bill. First, the judicial officer under Clause 2, which we have debated, has to be satisfied of a number of matters. Under Clause 5(6)(b), the

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competent court has to be satisfied that the person's rights have been respected. If the competent English court decides that the person's rights have not been respected, it notifies the Minister and the Minister has to transmit that notification to the ICC.
So there is built into these procedures the notion that the English court determines whether rights have been respected as a matter of English law—which, in answer to the noble Lord, Lord Kingsland, includes the Human Rights Act 1998, and, therefore, the European Convention on Human Rights. When the English court has made that decision, the matter is transferred to the International Criminal Court, which has the ultimate responsibility for deciding what is to be done about it. That court is, of course, bound by international human rights law in all kinds of ways under the relevant chapter of the ICC statute.
The only gap that I can see in this partnership is purely technical and procedural—I shall come to it later—and concerns the limited remedy of the ancient writ of habeas corpus, which I think does not go far enough. That is how I understand the position. I shall now probably be told that I am wrong by the noble and learned Lord the Attorney-General.
Lord Williams of Mostyn: These amendments fall into two categories. The noble Lord, Lord Kingsland, generously said that, in respect of most of them, we have gone over the ground because they are consequential. The issue focuses essentially on Amendments Nos. 30 and 31, a theme also developed by the noble Lord, Lord Lamont.
We must bear in mind—I am sorry to repeat this—that the purpose of the Bill is to give effect to the statute. The noble Lord was quite right to draw our attention to Article 59.4 of the statute. It states, quite unambiguously, in the final paragraph:
"It shall not be open to the competent authority"—
which we looked at earlier in the context of the Bill—
"of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1(a) and (b)".
So we are in agreement about what consequences follow. There may be disagreement about whether or not it is a good idea to have the Bill, but we are in agreement about consequence.
Clause 5 is designed to implement Article 59. The noble Lord, Lord Lester of Herne Hill, is right, Article 59 requires the competent court—that is, the domestic court—to determine whether the rights of a person arrested have been respected. What it does not do is specify what should be the consequence of a determination that a person's rights have not been respected. That is the gap in the statute which the noble Lord identified.
We have therefore introduced the safeguard that if the competent court comes to the conclusion that there was not a lawful arrest in pursuance of the warrant, or if there was a non-respecting of the person's rights, the court is obliged to notify the Secretary of State. Having received that notification, the Secretary of State is obliged to transmit it to the ICC.
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There is a good reason for that. It would be quite easy for a state unwilling, for ignoble purpose, to surrender a particular individual, simply to violate his rights or secure a compliant court to make such a determination. We think, as a matter of principle, that it is right that the competent domestic court should have that duty; that it is right, as a matter of principle, that the Secretary of State should have the consequent duty. Thereafter it is a matter for the ICC to decide, on the usual grounds, whether the abuse of process is so grave that to proceed with a trial would go against the interests of justice.
That is a perfect mirror, I submit, of what obtains domestically now. If I say "My rights have been interfered with. There has been an undue delay. I cannot have a fair trial", then commonly now—I almost said regularly, but certainly frequently—domestic courts, the Crown Court, will say "To continue with this prosecution is abusive because it is against the interests of justice. Your rights have been interfered with". But it is the trial court—or potentially the trial court—which comes to that conclusion.
I know that some Members of the Committee may not be full of enthusiasm for some international courts, but in the International Criminal Tribunal for Rwanda—to take up an earlier theme—there was every pressure to secure convictions. It was found that the abuse of process was so grave in the Barayagwiza case that it was decided that it would not be right to continue. There is the alternative under Article 85: the ICC can award compensation to persons subject to unlawful arrest or detention. Similarly, domestic remedies remain available. If an official has been responsible for a serious violation of a person's rights, he may be open to criminal prosecution, or indeed there may be a right to damages.
It is a difficult balance. There is no doubt that we are in new waters. However, if one rationalises the situation in that way, the true venue for determining abuse of process, which is what this would be, is the trial court. I believe that the ICC will be fair and that it will be competent to come to those conclusions. I have spent a little time on this because it is a legitimate question; and, following the gracious invitation from the noble Lord, Lord Kingsland, I have spent no time at all on the earlier matters which we have already gone over.
5.30 p.m.
Lord Kingsland: I thank the noble and learned Lord for his reply. I accept in part what he says, because in a sense it is ground that he has already gone over. I should like to reflect on his reaction to what my noble friend Lord Lamont said in support of my opening remarks. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]
Lord Kingsland moved Amendment No. 24:
Page 3, line 35, at end insert (", and
(c) that there is a prima facie case, on the evidence to be heard,").
The noble Lord said: This amendment seeks to add a new paragraph, (c), to Clause 5(2) requiring the competent court to be satisfied, in addition,
"that there is a prima facie case, on the evidence to be heard".
In the light of what the noble and learned Lord the Attorney-General said in response to previous amendments, I shall not press this matter. My reason is twofold. First, I know what the noble and learned Lord's answer will be. Secondly, two amendments in the next grouping, Amendments Nos. 24A and 28A, provide an alternative way of achieving the solution that we seek under this amendment. Therefore, with the leave of the Committee, I shall wait until I deal with the next group of amendments to raise the substance of the issue that I sought to raise in this one.
As to the remaining amendments, I am in difficulty over both Amendment No. 30B and Amendment No. 32A in view of the fact that Amendment No. 30A has been declared inadmissible. Therefore, I shall not move them.
As to Amendment No. 35A, it covers a great deal of the ground that was covered by the noble Lord, Lord Lester, in his previous intervention. It seeks to require that if a competent court finds that there have been breaches of a person's human rights, there should be a refusal to make the delivery order. The noble and learned Lord the Attorney-General is well aware of the point that the amendment seeks to make and I shall not elaborate on it any further. I beg to move.
Lord Lester of Herne Hill: For the avoidance of doubt and for the benefit of the noble Lord, Lord Kingsland, I am not suggesting that the remedy that the English court should grant would be the kind that he has in mind when, as I shall do later, I press for a wider application for judicial review than habeas corpus. I shall simply be seeking a remedy by way of a declaration of rights which can then be transmitted to the Minister and to the ICC but not to an order of the kind that he has in mind to refuse delivery. I want to make that quite clear. Habeas corpus is one thing; but I do not wish to fetter the machinery in the way that the noble Lord has in mind. If he thinks that I do, then it is my fault; I must have mistaken him.
Lord Kingsland: The noble Lord, Lord Lester, was characteristically so clear in his previous exposition that I had understood that to be the case.
Lord Williams of Mostyn: As I understand it, these amendments will not be moved.
Lord Kingsland: That is not quite the case. Amendment No. 24 has been moved; however, I have indicated that it will be withdrawn because the ground that it covers is covered in a different way by Amendments Nos. 24A and 28A, which I shall deal with when we come to the next group. I shall not move
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Amendments Nos. 30B and 32A because a declaration of inadmissibility regarding my Amendment No. 30A makes them ineffective. I have spoken to Amendment No. 35A; that was also the subject matter of my recent exchange with the noble Lord, Lord Lester.
Lord Goldsmith: I am slightly confused as to where matters stand following what the noble Lord, Lord Kingsland, has said. My understanding is that the noble Lord does not intend to press Amendment No. 24, either now or in the future—and that is what I am interested in. Were he intending to press the amendment in the future, there are a number of other points that I should like to suggest that he consider before doing so. But if he does not intend to press the amendment, I need not weary the Committee with those points.
Lord Kingsland: I can confirm that I do not intend to press the amendment, either now or at any subsequent stage in the Bill's proceedings.
Lord Williams of Mostyn: I am grateful to the noble Lord for his clarification. Amendment No. 35A deals with the point that we have discussed on an earlier occasion. It relates to line 11 on page 4, and seeks to,
"leave out from ("shall") to end of line 13 and insert ("refuse to make the delivery order").
I hope I have made my position plain. I do not think that I can assist the Committee by simply repeating the mirror argument.
Lord Kingsland: My understanding of the noble and learned Lord's position was exactly as he just expressed it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 24A:
Page 3, line 35, at end insert (", and
(c) that the Secretary of State has reasonable grounds for being unwilling or unable to investigate and prosecute the named person,").
The noble Lord said: I said that the end that I sought in tabling Amendment No. 24 might be achieved in an alternative way, by means of Amendments Nos. 24A and 28A. The principle upon which both amendments are based is the principle of complementarity.
With Amendment No. 24A, I seek to add a new paragraph, (c), stating,
"that the Secretary of State has reasonable grounds for being unwilling or unable to investigate and prosecute the named person".
This amendment is a concrete expression of the principle of complementarity. In my submission an individual who is under threat of having a delivery order made against him ought to be able to test the reasons why the state has decided not to deal with his case in the United Kingdom. In normal circumstances I would expect the Secretary of State to have a legally proper response—for example, that it was impossible to garner the kind of evidence that was needed to advance the prosecution from the United Kingdom, or

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that the alleged crime involved was of an international nature and required the probably more effective procedural devices at the disposal of the International Criminal Court to acquire the evidence that was needed to further the prosecution. There may be other perfectly proper reasons why the Secretary of State was not in a position to pursue the prosecution.
However, there may be occasions when the reasons why the United Kingdom Government have chosen not to pursue a prosecution are highly questionable in law. The motives may be improper or irrelevant; for example, there may be political motives—perish the thought—behind a decision not to pursue a prosecution which were unacceptable in—
Lord Archer of Sandwell: I most grateful to the noble Lord for giving way. But, understanding as I do that he is well aware of the way in which these procedures operate, I am puzzled because it is not the Government and it is not the Secretary of State who decide whether someone will be prosecuted or who direct the prosecution. That being so, I do not quite follow why the test of whether someone will not be prosecuted in this country is whether the Secretary of State is unwilling that he should be prosecuted.
Lord Kingsland: As I understand itk, the principle behind the Rome statute is the principle of complementarity; that is to say, the primary responsibility for bringing a prosecution against an individual for one of the crimes set out in the schedules to this Bill is the responsibility of the nation state. Perhaps I should have referred to the Crown Prosecution Service or to the Government in general rather than to the Secretary of State. If that is the point the noble and learned Lord makes, I accede immediately. What I am suggesting to the noble and learned Lord the Attorney-General is that an individual faced with a request from the International Criminal Court ought to be able to test the reasons why the responsible authorities in the United Kingdom have chosen not to prosecute him.
In most circumstances the responsible authorities will have a perfectly valid reason for not doing so. I have already given an example of the difficulties of garnering evidence. There may be other reasons which are perfectly proper. But it is conceivable in my judgment that there may arise circumstances where in law the motives of the responsible authorities in this country for not prosecuting someone in the United Kingdom are improper. In my submission, an individual ought to have the opportunity to have that matter tested in the national court. I can see nothing—
Lord Lamont of Lerwick: I hope that my noble friend will address the following question. This is possibly relevant to what the noble and learned Lord, Lord Archer, said. Have there not been cases where decisions have been made relating to the early release of prisoners in Northern Ireland which have meant that other people who might have been prosecuted would have been released immediately had they been prosecuted and found guilty, and that therefore they might not be prosecuted for that reason?
5.45 p.m.
Lord Kingsland: I have no doubt that there is something in what my noble friend has said, although I do not wish to pursue that analogy in the context of the point that I am making here. I hope that I have explained Amendment No. 24A. Before I move that amendment I shall speak to the other amendments on that page.
In a sense, an alternative way of dealing with this matter is provided by Amendment No. 28A. The noble and learned Lord the Attorney-General will recall that this point came up right at the beginning of the Committee stage this afternoon. He may find this an easier concept or approach to accept than the approach under Amendment No. 24A. Here I am suggesting that, if the ICC seeks to have someone it wishes to prosecute delivered up and the responsible authorities in the United Kingdom wish nevertheless to pursue the prosecution domestically, they should have the power under this Bill to make the appropriate submissions themselves to the International Criminal Court in the Hague to that effect. That opportunity, as I read it, is not open to them under Clause 5(4). It is clearly open to the individual to make some submissions about the admissibility of the warrant, but it does not appear to me to be open to the responsible authorities in the United Kingdom itself. This amendment seeks to fill that gap by providing such an opportunity to the responsible authorities.
The other amendment to which I need to speak, Amendment No. 29A, which I believe is in the same group, simply deals with the provision of legal aid to an individual who would be making some submissions. I beg to move.
Lord Goldsmith: I of course have sympathy with the underlying point made by the noble Lord, Lord Kingsland, that the principle of complementarity means that, where a prosecution can be brought in this country, that is what probably ought to happen. The other amendments to which the noble Lord refers are concerned with how the International Criminal Court becomes aware of whether or not the relevant country is prepared to institute those proceedings. My understanding—the noble and learned Lord the Attorney-General will state the correct position—is that procedures are, or will be, in place so that where this country wants to prosecute that is a feature which will be known to the International Criminal Court and therefore will make the case inadmissible as far as the court is concerned under Article 17.
That is the first point; namely, how the court becomes aware that the authorities in a particular country are prepared to prosecute because if they are prepared, and are able, to prosecute, the case will not be admissible. It seems to me at the moment—probably I have misunderstood the position—that the noble Lords's alternative way of dealing with this issue (Amendment No. 24A) does exactly the opposite of what the statute is intended to achieve. If a state is unable or unwilling to prosecute—that will include

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cases where it is willing but does not have reasonable grounds not to do so—the statute intends that the International Criminal Court will have jurisdiction.
The effect of the noble Lord's amendment is this. If the Secretary of State or the Crown Prosecution Service—whatever the authority will be—should prosecute but will not do so, the court will not issue the delivery order to send the matter to the International Criminal Court—the very court which should, in those circumstances, prosecute. I test some of the noble Lord's amendments in this way. What would we think if another country which did not have the same approach put into its legislation a law which states, "We shall not send someone to the International Criminal Court if we think that our own government do not have reasonable grounds for not prosecuting"? Nor could the court force them to prosecute. That would put the case in limbo; no one would have jurisdiction.
I have sympathy with the underlying concern but the matter has to be dealt with by procedures whereby the ICC knows whether we are prepared to prosecute—I hope that the Attorney-General will explain the position—rather than the provision in Amendment No. 24A.
Lord Lester of Herne Hill: I agree with the noble Lord, Lord Goldsmith. I cannot believe that it is in the pubic interest or compatible with the purposes of the Bill or the ICC statute to ask English courts on a routine basis to answer the question posed by Amendment No. 24A,
"that the Secretary of State has reasonable grounds for being unwilling or unable to investigate and prosecute the named person".
I cannot imagine that the noble Lord, Lord Kingsland, would welcome that as a judicial task except in the most extreme circumstances. It would be contrary to the whole of our legal system, as we have built it up, to start giving courts that scope for judicial intervention except in the most extreme case.
Lord Archer of Sandwell: I am puzzled by the structure of what the noble Lord seeks to do. I agree with my noble friend Lord Goldsmith. Clearly, the intention is that it is only where the authorities—whoever they are—are unwilling to prosecute that the jurisdiction of the International Criminal Court is invoked.
Let us suppose that a court in this country were given the opportunity to ask the question which the noble Lord invites to be asked in the amendment. Let us suppose that it comes to the conclusion that the authorities—I think that the noble Lord accepts that the Secretary of State is not the appropriate authority—have bad reasons for not prosecuting and should have prosecuted; and for that reason the ICC should not have jurisdiction. What would happen next? Would the court then have some power to order the appropriate authorities to prosecute? That would be the first time in 600 years that such a power has been invested in a court in this country, to my knowledge.
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Clearly it is not for the courts to second guess the prosecuting authorities as to why someone has not been prosecuted.
Lord Avebury: These matters will presumably work on the same lines as apply to the torture convention. If it is alleged that someone within our jurisdiction has committed any of the offences specified in Section 134 of the Criminal Justice Act 1988, the matter is referred to a special unit of the Metropolitan Police which conducts an investigation. If it finds that there is sufficient evidence, it is referred to the Crown Prosecution Service which can then decide whether to bring proceedings.
Perhaps the noble and learned Lord the Attorney-General will confirm my assumption that there will need to be an enormous expansion of that special unit within the Metropolitan Police to investigate allegations of offences which may subsequently be the subject of charges before the International Criminal Court.
I remember an interesting talk that the noble and learned Lord gave about the operations of the War Crimes Act. He laid out the enormous resources that we should have to deploy in terms of lawyers and investigating police officers to result in a small yield of prosecutions or convictions. If we are to take our obligations under the ICC legislation seriously, we shall need to have thorough investigating provisions within our police forces. It is they who will first be seized of allegations of offences under the Bill. For that purpose, there will presumably be close liaison between the police and the authorities of the ICC when deciding where the proceedings would be most appropriately brought.
If witnesses are largely in another jurisdiction, perhaps it would not be best for that person to be tried within the English courts, irrespective of the fact that he happened to be present here. There have been cases of war criminals who swam into our jurisdiction who were wanted by the International Criminal Tribunal. I know of one example. Muvunyi, a Rwandan, was an alleged war criminal who was resident in south London. He was known to the media for many months before an indictment was issued. He was then arrested and delivered up to the tribunal because it would have been inappropriate for him to have been dealt with under our jurisdiction. It would have been impossible to bring the witnesses here and to have collected the evidence which would have resulted in his conviction.
I take it that these considerations will apply once the Bill is on the statute book. There will be some instances where it is correct for us to take proceedings in the English or Scottish courts, and others where it is more appropriate for the matter to be dealt with in the ICC. Those will be the subject of negotiations between the authorities.
However, to put the provision into the Bill at this stage would be counter to the provisions of Article 59 of the statute. In the amendments put forward, the Conservative Opposition seek to go behind the statute and amend it through this legislation. That cannot be

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accepted by the Committee. If we do so, it will be impossible for us to meet our obligations and ratify the treaty.
Lord Williams of Mostyn: Perhaps I may remind the Committee that the group of amendments includes Amendments Nos. 29, 24A, 28A and 29A.
If passed, Amendment No. 29 would put into the Bill the provision that no delivery order shall be made to the ICC in the case where there is or has been an investigation under domestic law. That is not necessary on the face of the Bill for the reasons which were set out by my noble friend Lord Goldsmith. The way that the measure will work will be this. No request will come from the ICC in such a case so there will be no need to refuse a request in such a case. When the ICC', prosecutor begins to consider an investigation against a UK national, the ICC notifies all interested states. When we receive that notification, we have the opportunity to notify the ICC of our intention to investigate ourselves. In that case, as the noble Lord, Lord Goldsmith, indicated the ICC will not issue a request for delivery. It is an important point and I am glad to have had this opportunity for clarification.
Amendment No. 24A suggests that a delivery order should be made only if the Secretary of State has reasonable grounds for being unwilling or unable to prosecute. With great respect, I confirm the observation made by my noble and learned friend Lord Archer of Sandwell. As colleagues will readily confirm, in this country the Crown Prosecution Service and the Law Officers are not an arm of the Government. Our advice, palatable or not, is our advice. The Crown Prosecution Service was set up as an independent prosecuting service.
The point that Amendment No. 24A is not workable is valid, but that does not take away from the point that would be made if it were redrafted. There could be no review of whether the Secretary of State had reasonable grounds for being unwilling or unable to investigate and prosecute, but he does not carry out either function in any event; the Crown Prosecution Service does that, under the superintendence of the Law Officers.
Be that as it may, Amendment No. 24A is not necessary. The provision is implicit in the Bill and explicit in the statute. As my noble friend Lord Goldsmith pointed out, Article 19 offers the challenges to admissibility. They can be made by the accused, by a person for whom a warrant of arrest or a summons to appear has been issued or a by state that has jurisdiction over a case—such as the United Kingdom—on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted it. That does not need to be spelled out in the Bill because it is in the statute to which the Bill gives effect. It is implicit in the Bill and explicit in the statute.
The same answer applies to Amendment No. 28A. The Secretary of State, the person sought or even another state are able to challenge the jurisdiction of the ICC.
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The final point was on Amendment No. 29A and the provision of legal aid. Articles 55 and 67D of the statute provide that persons coming before the ICC shall have the right to counsel in any case in which the interests of justice require it, without payment, if the accused lacks sufficient means to pay for it.
6 p.m.
Lord Kingsland: I thank the Attorney-General for his response and all those who have contributed to this interesting debate. In response to the noble and learned Lord, Lord Archer, on Amendment No. 24A, if a court found that the Government's motives were improper, no prosecution would go ahead in the United Kingdom and the Government would be prevented from submitting the individual to the International Criminal Court. I entirely accept that the consequences of such a finding—
Lord Williams of Mostyn: My noble and learned friend Lord Archer knows that I am not being discourteous, but it is critical to remember what he said. The Government do not prosecute. That is one of the glories of our system. This is not semantics. The Crown Prosecution Service is independent of the Government and in so far as the Law Officers influence the Crown Prosecution Service, which they may do by their decisions in some circumstances, they are not the Government. That is an important point.
Lord Archer of Sandwell: What my noble and learned friend the Attorney-General says is absolutely right and of vital importance. Even if the amendment were amended to read, "the Crown Prosecution Service and the Law Officers" instead of, "the Secretary of State", there would still be a grave logical difficulty. The situation that the noble Lord has just posited is one in which the court has decided that the motives of those who decided not to prosecute were improper and therefore that the ICC shall not have jurisdiction. Presumably the court has decided that the person in question ought to be prosecuted, but the noble Lord says that he cannot be prosecuted in this country either—or anywhere.
Lord Kingsland: A decision of the Crown Prosecution Service not to prosecute can be judicially reviewed in certain circumstances. The situation is not constitutionally unknown in the United Kingdom.
I entirely accept the admonition about the Secretary of State. I did not intend to give the impression that I thought that the Secretary of State would be the prosecutor in those circumstances. It is, of course, the Crown Prosecution Service.
I draw great comfort from the Attorney-General's response to Amendment No. 28A. Sometimes he appears to put parts of the Rome Statute in the Bill and sometimes he says that they are implicit. In this case, the relevant part of Article 19 is clearly implied. I am grateful to him for confirming that, because it provides the protection that we are seeking. In those

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circumstances, I shall not need to pursue Amendment No. 24A on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 25 to 33 not moved.]
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 34:
Page 4, line 10, at end insert (", or
(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law,").
The noble Lord said: The amendment would add something to the Bill as it concerns the law of the United Kingdom. It would not amend the Rome Statute—we have learned by now that that is ruled out of court, as the Bill is intended to give effect to that statute as it stands. The amendment would add a third consideration for the competent court. It is the minimum that we as legislators should consider appropriate for people who are likely to be transferred to a higher jurisdiction or tried under our domestic courts. I beg to move.
Lord Lester of Herne Hill: I made a similar suggestion during the consultation process, but I was persuaded by the response to that process that I was mistaken.
In favour of the amendment, Section 43 of the New Zealand statute says that a person will not be eligible for surrender unless his rights, in accordance with the law of New Zealand, have been respected. The New Zealand Government obviously believe that that is compatible with the ICC Statute. However, on further reflection, I rather doubt it.
I simply want to make the following point for all of us who are so sure that the English system of justice is the best and fairest in the world, even in the criminal justice sphere, notwithstanding the many judgments found against us by the European Court of Human Rights. My point is that the statute of the court goes further in protecting the fundamental human rights and freedoms of the accused than any other international human rights instrument that I have ever seen. Article 66 carries a presumption of innocence, and Article 67 spells out the rights of the accused in great detail.
As the effect of the amendment would be to introduce another fetter on transfer to the International Criminal Court of a kind which I do not believe to be compatible with the statute or necessary, as I have full confidence in the ability of the International Criminal Court to ensure a concept of justice as good as our own, I would be against the amendment.
Lord Williams of Mostyn: I do not believe that the amendment is necessary. The noble Lord, Lord Lester of Herne Hill, is quite right. Of course, we examined the statute and also the Rules of Procedure and Evidence. I believe that it is fair to say, quite
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moderately, that the Rules of Procedure and Evidence fully reflect the rights known in domestic law and in the European Convention on Human Rights. I suggest that making provision for a domestic court to refuse surrender in those circumstances is, first, not required and, secondly, not permitted under the statute.
Earl Attlee: I hesitate to interject, but the noble and learned Lord the Attorney-General and the noble Lord, Lord Lester of Herne Hill, have suggested that this amendment fetters the right to transfer to the International Criminal Court. However, it simply requires the notification of the Secretary of State to the ICC; it does not prevent transfer.
Lord Goodhart: Before the noble Lord, Lord Howell, replies to the amendment, I want to raise one question. I entirely accept the view of my noble friend that the amendment is almost certainly incompatible with the Rome Statute. The amendment is one of a series put forward by the Conservative Front Bench which is, to a greater or lesser extent, incompatible and which would make it impossible for this country to ratify the Rome Statute without making a reservation. That, as we know, is not possible. In those circumstances, is that the intention of the Conservative Front Bench? Is it their intention to frustrate the ratification by this country of the Rome Statute or is it not?
Lord Avebury: I certainly believe that it would be highly undesirable for us to put these words on to the statute book. They would give an indication to the International Criminal Court, before it started its operations, that people in this country have some doubt as to whether it will try people fairly. Why would we have entered into the ratification of the treaty if we did not believe—I hope that we do believe—that the International Criminal Court will give as fair a trial as any court in our domestic jurisdiction, whether in England or Scotland?
The Conservatives are not trying to avert the surrender of the persons to whom the provision might apply; they are trying to provide that the Secretary of State, after being notified that there is reason to believe that a person would not receive a fair trial, would be notified of that finding in accordance with the final sentence of Clause 5(6). Therefore, as I understand the amendment, the Secretary of State would not have to do anything about such a finding other than transmit it to the International Criminal Court. I believe that that was the point made by the noble Earl, Lord Attlee.
Nevertheless, placing us in the position of having to tell the International Criminal Court that we would not expect it to give people a fair trial would not be a good start to the operations of that supremely important tribunal. I do not believe that words should appear in the Bill which give the impression that this House, or this Parliament, has no confidence in the standards of justice that will be delivered in the ICC.
6.15 p.m.
Lord Goldsmith: Before the noble Lord replies, perhaps I may add one comment to the points that have been made, all of which I agree with. If I may say so, the point just made by the noble Lord, Lord Avebury, is particularly important. Not only might the International Criminal Court be offended by what we say but, far more importantly, we might give the impression to other countries that this country or this House takes the view that the International Criminal Court may not give a fair trial. We certainly do not want to convey that message. It is one with which we would not agree at all and it would simply provide a pretext for other countries not to bring the statute into effect or support it themselves. I invite the noble Lord to consider that point, too.
Lord Kingsland: I entirely agree with what the noble Lord, Lord Goldsmith, said in relation to the International Criminal Court. It would be appalling if that impression were given. Nevertheless, we should bear in mind that in the course of the passage of the Human Rights Bill in your Lordships' House, one of the reasons given by many speakers for bringing home rights was uncertainty about the quality of the judges who would be appointed to the expanded European Court of Human Rights. In the past, concerns have been expressed in your Lordships' House about the quality of judges, although I believe that in present circumstances the noble Lord, Lord Goldsmith, is absolutely right to make his point.
Lord Lester of Herne Hill: Will the noble Lord, Lord Kingsland, accept that the promoters of the incorporation of the convention, of which I was one and the Government were the main ones, have never suggested in any debate that the reason for giving domestic effect to the convention was a lack of confidence in the new—or the old—European Court of Human Rights? The reason was wherever possible to provide speedy and effective remedies in our courts so that there might be a principle of complementarity.
I know that the noble Lord does not wish to be rude about the International Criminal Court, but I am sure that neither does he wish to be rude about the new court, whose record, I believe, has been admirable. Its judges have come from central and eastern Europe as well as from western Europe. I hope that the noble Lord agrees with that.
Lord Kingsland: Perhaps I may say to the noble Lord, Lord Lester: quite the contrary. During the course of the debate on the Bill in your Lordships' House, I was one of the very few speakers who wished the decisions of the European Court of Human Rights in Strasbourg to be binding on our own courts. Indeed, I recall that I was almost alone in wishing that. Therefore, if I may say so, at least so far as I am concerned, my position is wholly consistent with complete trust in the judges of the European Court of Human Rights.
Lord Brennan: Perhaps my noble and learned friend will forgive me. Before he replies, will he confirm that
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the doubts referred to by the noble Lord, Lord Kingsland, were not expressed from these Benches and are not shared on these Benches?
Lord Williams of Mostyn: I was not rising to reply further except to agree that the noble Earl, Lord Attlee, was right. I believe that I made my reply on the effect of Amendment No. 34 too short. I should have said that this amendment, if taken with Amendment No. 35, would have had the consequence to which I referred. He is quite right with regard to the position of Amendment No. 34 on its own. I simply wanted to express that accurately.
Lord Howell of Guildford: I believe that it is my turn to end the discussion. I say straight away that I considered the reply of the noble and learned Lord in setting out his view of the unacceptability of the amendment to be fair and precise. Indeed, although the noble Lord, Lord Lester, spoke against the amendment, he also indicated that certain matters had passed through his mind and needed to be given further thought.
Although I hate to step in this direction, must add that I regarded the intervention of the noble Lord, Lord Goodhart, as mildly unfortunate. He must know perfectly well that in seeking to fulfil our duty in this Committee, we are having to walk a tightrope. Many noble Lords, including the noble and learned Lord, Lord Archer of Sandwell, who worked for years on this matter, will appreciate the nature of the tightrope. First, we do not in any way want to impede or fetter, or place obstacles in the way of, the effort to bring to justice, in a way that has not happened in the past but which we hope will happen when we have a permanent court rather than ad hoc tribunals, monstrous perpetrators of hideous crimes. On the other hand, it is also our duty to safeguard the rights of the subjects of this kingdom. When those two considerations are in conflict, we need to measure them very carefully. That is what we are seeking to do. To call that an attempt to frustrate the Bill is not fair or reasonable. I put that on the record because I feel it very strongly indeed. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 and 35a not moved.]
Clause 5 agreed to.
Clause 6 [Supplementary provisions as to proceedings before competent court]
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 36:
Page 4, line 37, leave out paragraph (b) and insert—
("(b) for the purposes of the Legal Aid (Scotland) Act 1956 and any regulations made thereunder, solemn legal aid shall be made available in respect of such proceedings or any appeal provisions following thereon").
The noble Lord said: This is another amendment that has Scottish origins. Since I had so much luck with the previous amendment, I shall try my luck again with this amendment.
The amendment provides that "solemn legal aid" shall be available for proceedings that are raised under the Bill. The reasoning is that, as the Bill is currently drafted, Clause 6(3)(b) would result in summary criminal legal aid being available in Scotland in relation to proceedings that were raised under those provisions. In practical terms, the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 would apply. Payment in relation to the preparation and conduct of those important proceedings would therefore be limited to £500.
I am advised that in Scotland legal aid for serious cases, which are dealt with under solemn procedure, is paid on a time-and-line basis. There is therefore no upper financial limit on the extent of the work that can be carried out. The Law Society of Scotland advised me that it believes that cases under the Bill should also be dealt with on that basis; hence the amendment. I beg to move.
Lord Monson: I shall use this simple, technical amendment relating to Scotland as a peg on which to hang a much wider question relating to Scotland, which I want to put to the noble and learned Lord the Attorney-General. There seem to be few other windows of opportunity this evening. The Bill relates not to the whole of the United Kingdom but only to England, Wales and Northern Ireland. What happens if the Scottish Parliament declines to approve a parallel Bill? In practice it is highly unlikely that it would take such a course, but in theory it has every right to do so; that is provided for in the Scotland Act. International treaties have nothing to do with Edinburgh; they are matters for Westminster. If the Scottish Parliament says, "No, we are not going to pass a similar Bill", how would that leave the United Kingdom's international obligations?
Lord Williams of Mostyn: Even in the and wastes of the late afternoon, this is a delightful moment, and I am glad that there are many lawyers in the Chamber. Legal aid was described as being solemn; I appreciate that that is a term of art, but it is one that I had not come across before dealing with the Bill. I shall have to write about it on the back of a postcard and send it to my noble and learned friend the Lord Chancellor.
Clause 6(3)(a) prescribes that proceedings should be summary in nature. Solemn legal aid north of the Border relates to solemn proceedings; that is, on indictment for serious offences which would involve a jury.
That is my first answer; my second is well known. The operation and regulation of legal aid is a function that is devolved to the Scottish Parliament and it would therefore not be appropriate for us to legislate in that regard. That really is the rat's answer, but I thought that I had better give it! I believe that my first answer is the more important.
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To answer the noble Lord, Lord Monson, the Bill will extend to Scotland for arrest and surrender. For criminal offences, our colleagues north of the Border have their own legislation.
Lord Howell of Guildford: The grasp that the noble and learned Lord has of the intricacies of Scottish law, including the law relating to devolution, is certainly superior to mine. I bow to his knowledge in these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Consent to surrender]:
Lord Kingsland moved Amendment No. 37:
Page 5, line 1, leave out from ("which") to end of line 2 and insert ("the justice of the peace, or in Scotland, the sheriff, is satisfied that the person is incapable by reason of mental disorder or of inability to communicate because of physical disability and that it is appropriate for a person to act on his behalf").
The noble Lord said: The amendment probes the circumstances in which it would be appropriate for another person to act on behalf of the person arrested for the purpose of consenting to surrender.
We believe that consent to surrender should be given by another person only in very restrictive circumstances, such as when the person arrested is incapable of giving consent. The effect on an individual's liberty of granting such consent is so significant that the court should be satisfied that the person is incapable of making a decision in that regard before another person can act on his or her behalf.
Amendment No. 62 would have the same effect, and I do not need to elaborate on Amendment No. 63. I beg to move.
Lord Williams of Mostyn: I am afraid that I cannot accept the amendments. The limitation on the definition of incapacity might very well restrict the court's discretion in judging those matters. Every case will be different and it is important to ensure that all eventualities are covered. That is the reason for the Bill's general wording. In this context, in which definitions are very difficult, it is better to leave that wording general so that the courts may decide.
Lord Kingsland: I am not happy with the response of the noble and learned Lord, but I shall reflect on whether to return to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 to 42 not moved.]
Clause 7 agreed to.
Clause 8 [Procedure where court refuses order]
Lord Howell of Guildford moved Amendment No. 43:
Page 5, line 27, leave out ("shall") and insert ("may").
The noble Lord said: In moving Amendment No. 43, I shall speak also to Amendments Nos. 44 to 48 and 72.
The amendments would allow the court to have discretion about whether to continue to remand a prisoner where a court refuses an order and to allow for the release of a prisoner when an order has been refused.
Amendment No. 43 gives the court discretion when it refuses an order. When the court has refused an application to make a delivery order, it can make an order remanding the person arrested and notify the Secretary of State of its discretion. The amendment would give the court the discretion as to the above if the court so refuses to make a delivery order.
The argument that lies behind Amendment No. 44 is that, if a person is entitled to resist a delivery order, he is entitled to his liberty. Amendment No. 46 again comes from the Scottish direction and represents the view of the Law Society of Scotland, which stated that there may be some dubiety as to what constitutes the term "without delay" for the purposes of the clause. It may be better in the interests of clarity to specify a period within which the court should be informed if an appeal is to be brought under Sections 9 or 10.
Amendment No. 47 seeks to place a time limit upon the court being informed of an appeal under Clauses 9 and 10 so that the court can ensure that the order for removal lasts no longer than 24 hours, if the court so orders.
Amendment No. 72 again represents the view of the Law Society of Scotland whose contention is that the term "without delay" could lead to confusion as to the appropriate period of time within which the Secretary of State should notify the court of his decision in regard to whether to accede to the request. Again, the amendment seeks the provision of a specific period of time to avoid disputes. I beg to move.
6.30 p.m.
Lord Williams of Mostyn: As regards Amendment No. 43, the provision as drafted allows a court further to remand a prisoner if an intention to appeal is lodged with he court by the Secretary of State, or, of course, north of the Border, the Scottish Ministers.
We believe that that is very important indeed. It reflects similar provisions in the Extradition Act. I attach importance to this matter because these are very serious crimes, by definition. Let us think of a prospective defendant like General Mladic, for example. We remand defendants accused of less serious crimes if there is a likelihood that they may abscond. I believe that ICC crimes are so serious that that provision is required to remove any risk of absconding. If there were an absconding at that point, before we had completed domestic proceedings, that would be very damaging to the United Kingdom's reputation internationally and we should be in breach of our obligations under the statute. Therefore, I cannot accept Amendments Nos. 43, 44, 45 or 48.
Remand does not necessarily mean custody. It would be open to the court, subject to the other provisions of the Bill, to remand on bail with conditions.
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Amendments Nos. 46 and 47 relate to time limits which would bind the Secretary of State to make a decision whether to appeal within 48 or 24 hours. Of course, I endorse the noble Lord's concern, and I share it, to ensure that these cases are dealt with speedily. I am sure that they will be. But it is not necessary to specify those rigid periods of time. They will be extremely difficult and important cases. Any Secretary of State will put his mind to his decision extremely promptly. On the basis of that explanation, I hope that the noble Lord will not wish to press this matter.
Amendment No. 72 would impose an inflexible 48-hour time limit for the Secretary of State to notify the court of his decision. I do not think that we should look to rigid time limits in particular areas. I assure the Committee that every effort will be made to notify the court expeditiously of the Secretary of State's decision. As I said, the words "without delay" are intended to confirm that. In this particular area, with very difficult cases indeed, we should not have rigid limits. A margin not of appreciation but of time should be allowed.
Lord Howell of Guildford: I thank the noble and learned Lord the Attorney-General for those replies. I accept fully the point he makes about the concern in relation to individuals associated with hideous crimes being allowed to abscond. That would be unacceptable.
I take also the point that he is concerned about rigid time limits and I am reassured by the use of his words about speed and expeditious treatment of those matters because that is an extremely important aspect not only of handling this sort of crime but of justice generally. So in the light of the noble and learned Lord's reply, I beg leave to withdraw the amendment.
Amendment, by leave, 'withdrawn.
[Amendments Nos. 44 to 48 not moved.]
Clause 8 agreed to.
Clause 9 [Appeal against refusal of delivery order: England and Wales]:
Lord Kingsland moved Amendment No. 49:
Page 5, line 38, at end insert ("or the person subject to the order").
The noble Lord said: This amendment deals with a simple point. We believe that there is no justification for limiting an appeal in these circumstances to the Secretary of State. I beg to move.
Lord Williams of Mostyn: I believe that this is a genuine misunderstanding because Clause 9 is concerned with the right of the Secretary of Stale to appeal against the refusal to make a deliver) order. The amendment tabled by the noble Lord, Lord Kingsland, would give the same rights to the person named in that order; in other words, someone who has just been released is given the right to appeal against his own release. There is no new thing under the sun, as my father used to tell me, but this, really!
Lord Kingsland: The noble and learned Lord the Attorney-General is quite right and I apologise to the

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Committee for the text of the amendment. However, I believe that the noble and learned Lord knows what I am getting at; and perhaps I may invite him to take the Floor again to respond to the intention which lies behind the amendment.
Lord Williams of Mostyn: I have said on other occasions that the other bit of advice my father gave me was to keep away from loose women and hypothetical questions. Alas, my experience is that the latter has been a more common experience than the former.
Lord Kingsland: I thank the noble and learned Lord for his old-fashioned wisdom, and meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [Procedure where court makes order]:
Lord Lester of Herne Hill moved Amendment No. 51:
Page 7, line 13, leave out ("ordinary language") and insert ("a language he fully understands and speaks").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 54 which has a similar purpose.
Under the Bill as it stands, where a delivery order is made against an individual, it says that he shall be informed in ordinary language of his rights to review.
The Law Society of Scotland notes that:
"As currently drafted, this clause only requires the court to advise the person of his or her clause 12 rights in 'ordinary' language. No definition is given of 'ordinary' language. The effect of this could be that the person is advised of his rights in a language which he does not understand, albeit that it is in ordinary language.
If the right to review of the delivery order is to be meaningful, the person should be advised of this right in a language which he or she understands".
Our amendment is designed to make it clear that where the person does not speak English, he must be informed in his own language. That would bring the Bill into line with the language used by the statute itself. For example, Article 55 of the statute dealing with the rights of persons during an investigation provides that if a person is questioned in a,
"language other than the language the person fully understands and speaks",
he shall have the assistance of a competent interpreter.
Article 67, which concerns the rights of the accused during trial, provides that the accused should be,
"informed promptly and in detail of the nature, cause and content of the charge, in a language he fully understands and speaks".
I beg to move.
Lord Howell of Guildford: The noble Lord, Lord Lester, has put the argument behind his amendment
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with his customary lucidity. I endorse the aims behind the amendment as reflected in other amendments that, as we have been reminded, cannot be called.
I know that it will be said that English is one of the languages of the court and that "ordinary language" should suffice, but many languages are spoken and many individuals of British nationality may have difficulty with the English tongue. I believe that what the noble Lord, Lord Lester, suggests must be an improvement and a strengthening of the situation. I declare support for it.
Lord Clinton-Davis: I believe that this amendment is as bad as the original wording. I do not believe that the situation raised in Clause 11 will be cured by his amendment that uses the words,
"a language he fully understands and speaks".
I ask my noble and learned friend to reconsider this matter and to return with more appropriate wording. I do not believe that the word "fully" should be incorporated in the Bill.
Lord Avebury: The noble Lord, Lord Clinton-Davis, may not have observed that the word "fully" occurs in the statute; for example, in Article 67, paragraph 1(f) where the accused is to have free of cost translations of documents,
"in a language which the accused fully understands and speaks".
That is probably the same wording as is to be found in another article quoted by my noble friend, Article 55. In so far as the Government have tried faithfully to reflect the wording of the statute in the Bill, I believe it would be better to use those words rather than any others. We do not need to spend a lot of time returning to the drawing board and considering alternatives because the wording that my noble friend has put forward is fully in accordance with the statute and therefore is to be preferred to what is at present in the Bill.
Lord Monson: I, too, find this amendment a great improvement on the wording as it stands.
Lord Williams of Mostyn: I sympathise with the point. In Clause 11(1)(b) we use the phrase "ordinary language" because it would be an injustice if one were to explain matters, in any language, in legal phrases so that a person could not understand, whether the person was English speaking or not. The words "ordinary language" are meant to refer to non-technical language that an individual can follow. We shall arrange for a guarantee that, where appropriate, anyone arrested under this Bill will have access to an interpreter in accordance with his rights under Article 55 and under Article 6 of ECHR.
I do not believe that there is any difference between us. The reasons for using the words "ordinary language" are the same as those that used to be binding on judges in the Crown Court when they put someone on probation. They had to explain the conditions in ordinary language. If an individual were in a foreign land he would want matters explained in language that

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was ordinary to him. In other words, some people may need quite simple explanations and some may be content with intricate explanations. Whatever the language, there will be the provision to provide an interpreter, which is only right and proper, so that people can understand.
6.45 p.m.
Lord Archer of Sandwell: I sympathise with the objectives of the Government in departing from the language of the statute. To some extent it may be an improvement on the language of the statute. But does my noble and learned friend appreciate that the language of the statute is, as it were, set in stone, that it is certainly beyond amendment in this Committee and that people will speculate as to why we departed from that language? Is any real harm done if we follow that?
The Earl of Onslow: If the noble Lord is saying that "ordinary language" is appropriate, which is eminently sensible, why can the clause not read, "ordinary language that he fully understands and speaks"? In those circumstances one would have the best of both worlds.
Lord Lester of Herne Hill: I do not understand the policy reason behind restricting—it is a more restrictive guarantee—the language that is already in the statute. I agree with the noble Earl. It seems to me that both forms of wording could be used: "ordinary language that the person fully understands and speaks". If the Bill simply says "ordinary language" it will not guarantee that the process will work so that one is sure that the accused speaks and understands the language. Let us use the wording of the statute on the face of the Bill to ensure that everyone understands that the guarantee is that the accused should be able to speak and to understand fully the language, whether because that language is used or because an interpreter is used.
Lord Williams of Mostyn: Following the intervention of the noble Earl, Lord Onslow, I believe that the noble Lord, Lord Lester, now agrees that his own amendment may not be without blemish. We are trying to safeguard the individual. I have said that an interpreter will be available to provide the explanation in ordinary language. The ordinary language is not about the whole basis of the charge that he may face; it refers to his rights under Clause 12, the right to review of the delivery order.
I shall certainly have a look at this matter. One problem is, for example, that in the extradition Acts there is a similar provision to the one that I have advanced here. The laborious duty of trawling through some analogous Acts will call into question the provisions in similar legislation. I shall consider the matter. I shall write to the noble Lord, Lord Lester, following discussions and I shall place a copy of the letter in the Library for those noble Lords who may be
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interested. We want exactly the same thing. I believe that the words "ordinary language" have a virtue even in this Committee.
Lord Lester of Herne Hill: The Attorney-General believes that he uses ordinary language as I believe I do, but I can assure him that the non-lawyer Members of the Committee find the ordinary language that we use bizarre and extraordinary. In spite of our best efforts, they find it jargon-ridden or technical. For that reason I would prefer to see a further safeguard. I understand that we have a common objective. To me the sensible course is to leave the matter as it stands and to await the letter from the Attorney General. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 to 54 not moved.]
Clause 11 agreed to.
Clause 12 [Right to review of delivery order]:
Lord Kingsland Lord Kingsland moved Amendment No. 55:
Page 7, line 22, leave out ("15") and insert ("21").
The noble Lord said: Amendment No. 55 has a simple objective, which is to increase from 15 to 21 days the period of time for the execution of a delivery order. I beg to move.
Lord Williams of Mostyn: The procedure in Clauses 11 and 12 was designed with the precedents of the Extradition Act 1989 and Transfer to International Criminal Tribunals in mind. Following those precedents, the time period in which an individual due to be delivered up can make his application is 15 days. I believe that 15 days is quite long enough to start the process. I am not convinced that there is any proper reason further to lengthen the process than that provided for in extradition, which I think is a reasonable analogy.
Lord Kingsland: In the light of what the noble and learned Lord the Attorney-General has said, I shall again reflect on our amendment. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 56:
Page 7, line 27, after ("corpus") insert ("or for judicial review").
The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 57, 59 and 60. This group of amendments is designed to widen the right to review of a delivery order by means of an application for (at present) habeas corpus in Clause 12 to include an application for judicial review. I shall use ordinary language. The non-lawyer Members of the Committee may find it tedious in the extreme. However, is quite important.
As the Bill stands, the domestic safeguards by way of remedy are too narrow. Confining the right of review to a habeas corpus application means that a court can only consider whether a person has been lawfully arrested and detained and, if the court finds

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that the detention is unlawful, order release. That is the ancient writ of habeas corpus—a writ that runs as of right, not discretion. The problem, which is well known to judges and lawyers in this country, is that the remedy of habeas corpus has somehow to be reconciled with the broader discretionary remedies provided for by judicial review.
As I pointed out earlier in the debate, the competent court has to determine whether the rights of the accused have been breached. That is provided for in Clause 5(6)(b). Article 59(2) of the ICC statute requires the judicial authority in the custodial state to determine—I repeat, to determine—in accordance with the law of that state,
"(c) that the person's rights have been respected".
On a simple application for habeas corpus, that is not open to, in this case, the English court. An English court can decide only whether or not the detention is lawful and, if it determines that it is not, quash the detention and order the release of the prisoner.
Article 59(2) contemplates a determination, in accordance with English law, that the person's rights have been respected, and that that determination be transmitted by the Secretary of State to the International Criminal Court by the Secretary of State. That is a very important point. In addition to a quashing order for habeas corpus, provision is needed to allow the competent court to grant a declaration that the rights of the suspect have been infringed. That will not give rise to any automatic remedy. It is discretionary, which is a built-in safeguard. However, it will ensure that there is a proper, judicially reasoned determination, which can be sent to the Secretary of State, and then to the International Criminal Court.
I have received a letter from the Minister of State in the other place, Mr Peter Hain, in reply to questions that I raised at Second Reading about this matter. In respect of the extent to the right of review, Mr Hain indicated that the Bill broadly follows the provisions of the Extradition Act, the Backing of Warrants Act and the UN (International Tribunals) Orders. But those Acts are very different in scope and have very different sets of procedures and safeguards from those in this Bill. In particular, unlike this Bill, they do not provide for a judicial determination of whether the rights of the accused have been breached, nor for that determination to be sent to an international court.
The Minister in his letter also noted—and I think this is an example of the doctrine of the unripe time—that the recent review by Sir Jeffrey Bowman of the Crown Office List had recommended that habeas corpus should be subsumed into judicial review, except in extradition cases. Extradition cases were singled out because the review was concerned solely with the Crown Office List, and consideration of extradition was outside its remit. The Minister indicated that, as the Government are currently considering the relationship between habeas corpus and judicial review, it would be unwise to pre-empt those deliberations by amending the Bill to provide for judicial review—a somewhat bureaucratic reason. I
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submit that there are good reasons, specific to this Bill, why the greater safeguard of judicial review should be included in the right to review in order to make sense of this specific machinery.
I have again looked at Sir Jeffrey Bowman's report of March 2000 to the Lord Chancellor. I shall not weary the Committee with the detail. To cut a long story short, it is recommended that habeas corpus should become an order available on an application for judicial review; that there should be statutory provision to ensure that the discretionary elements of judicial review relating to permission to proceed and time limits and remedies should not apply when habeas corpus is sought.
Our amendments would do nothing to prejudge any wider reforms that the Lord Chancellor or Parliament may make in the wake of Sir Jeffrey Bowman's sensible recommendations. The amendments are tailor-made for this particular Bill. That is because they empower the judge to make a declaration, if so advised, which can then be used in the way that I have indicated, rather than having to rely upon the too narrow procedure for habeas corpus. I beg to move.
Lord Clinton-Davis: I run the risk of misinterpreting the noble Lord, for which I apologise in advance. I had not previously read the information that the noble Lord has put before the Committee. Perhaps I may ask in what way the words of his proposal devalue the proposal of the noble and learned Lord the Attorney-General. I believe that he has made a powerful case for changing the Bill in this respect. I cannot imagine that the noble and learned Lord the Attorney-General will immediately be able to approve the words that he has added. If not, the burden rests with him. I hope that my noble and learned friend will take away the Bill and examine very carefully the words which the noble Lord prays to be inserted.
7 p.m.
Lord Avebury: Speaking as a mere layman, when the Attorney-General comes to reply perhaps he can say whether there is any other method by which the provisions of Article 59(2)(c) can be given effect. The statute provides that the competent judicial authority shall determine that,
"The person's rights have been respected".
As I understand my noble friend Lord Lester, in an application for habeas corpus that matter is not within the competence of the court. It is only if there is an application for judicial review that the question whether a person's rights have been respected can be determined. The court would not deal with that of its own volition unless an allegation was made by the individual that one or other of his rights had been infringed. If my noble friend's amendment is not accepted, can the Attorney-General advise the Committee how else those provisions of the statute are to be implemented?
Lord Kingsland: As I believe the noble Lord, Lord Lester, said, this matter is dealt with in Article 59(2) of

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the Rome Statute. This point is also discussed briefly in paragraph 25 of the Explanatory Notes:
"if the domestic court considers that there have been violations of proper process or of the person's rights, the ICC will be informed of this determination. It is intended that this determination will not, however, affect the court's decision whether or not to issue a delivery order under subsection (2)".
The amendment moved by the noble Lord, Lord Lester, with which I respectfully agree, deals with what he believes should be the domestic judicial consequences of a violation of proper process. What consequences does the noble and learned Lord believe may flow from informing the International Criminal Court that proper process has not been respected in the domestic jurisdiction?
Lord Williams of Mostyn: I deal first with the latter two matters raised by the noble Lords, Lord Avebury and Lord Kingsland. Beginning with the matter raised by the noble Lord, Lord Avebury, the answer is to be found in Clause 5(6). The noble Lord asked how a determination can be made under Article 59(2)(c). The answer is that under Article 59(2) a person who is arrested shall be brought promptly before the competent judicial authority in the custodial state. That competent judicial authority—we have already looked at definitions—is that which we find in Clause 5(6). Therefore, one determines whether a person's rights have been respected by means of Clause 5(6), because the competent court must come to that conclusion.
Lord Avebury: There is a preliminary issue to be dealt with; namely, how the allegation that the person's rights have not been respected can be brought before the court. Such a declaration cannot be made under Clause 5(6)(b) if the court does not know that the person alleges infringement of his rights. The individual must have a mechanism by which to do that. As my noble friend explains, that matter cannot be dealt with under habeas corpus. Therefore, judicial review is a necessary mechanism by which the matter can be brought before the court.
Lord Williams of Mostyn: I believe that the noble Lord mistakes the position. If that point is asserted by the accused (if I may so describe him for present purposes) it can be dealt with before the competent court. The accused can allege that his arrest is unlawful or that his rights have not been respected. Therefore, the question raised by the noble Lord, Lord Avebury, in relation to Article 59(2)(c) is answered by Clause 5(6).
The related question put by the noble Lord, Lord Kingsland, is: what would be the expected consequence in the ICC following onward transmission of that conclusion by the Secretary of State? It seems to me that a variety of consequences may follow. The notification of itself would put the ICC prosecutor on the alert. If he decided to proceed the ICC would consider the matter. Depending on the nature of the lack of respect for the accused's rights, it might easily conclude that it would not be right or appropriate to continue with the prosecution. That is
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no different from the scenario that I outlined earlier; namely, that if I appear before the Crown Court and allege that my rights have not been respected, whether it be access to legal advice, access to counsel, or that the tribunal is not impartial—all the matters with which we are familiar—then, depending on the nature, extent and relevance of the abuse, a prosecution can be halted.
I turn next to the question of habeas corpus and judicial review.
Lord Kingsland: The noble Lord again gives way to my intervention. If the noble and learned Lord the Attorney-General turns to Clause 5(4), does he foresee circumstances in which the responsible authority in the United Kingdom would inform the ICC that there has been a breach of an individual's rights and that that affects the admissibility of the case?
Lord Williams of Mostyn: As I read Clause:5(4), that would be a matter for the competent court itself. The necessary pre-condition to going to the ICC to argue admissibility is that the competent court should adjourn. If it is persuaded to adjourn, it is for the ICC, the prosecutor and the accused's representatives to decide whether to take that avenue. I believe that the answer to the specific question as to what happens following notification is that the delivery order is made under Clause 5(6) and thereafter the prosecutor and the ICC decide whether the interference with rights is such as to pollute the proceedings.
The noble Lord, Lord Lester of Herne Hill, asked whether one could have judicial review as well as habeas corpus. The noble Lord is aware of the argument about the Bowman review, with which he may not be over-impressed. That is the argument that I would have put, but I do not repeat it bearing in mind its lack of success in correspondence. But the fundamental question is: what are the issues properly to be determined on this occasion? Those issues are quite limited: first, whether the warrant is duly issued or endorsed under Clause 2; secondly, whether the person before the court is the person named in the warrant. Those questions fall entirely within the ambit of habeas corpus. I believe that this is a proper scheme legitimately to safeguard those rights. It does not remove the opportunity to try to get the competent court to find that the person's rights have not been respected.
The noble Lord, Lord Lester, has chided others—perhaps not me—about the doctrine of unripe time. We do not wish to include judicial review pending any determination of the wider ramifications. I shall think about the matter. It may be helpful if I say to Members of the Committee interested in this particular aspect that even if I cannot go so far as the noble Lord, Lord Lester, wants, I shall consider matters. I am trying to be helpful but also trying to keep the scheme of the Bill and the aims we are looking to. It is possible, I suppose, that we could consider judicial review if it were for the determination of rights point and the remedy was simply limited to declaration. What I want to avoid is endless preliminary skirmishing—with

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which the noble Lord is familiar, and I do not say that in any sense of reproach of course—that impedes the proper prosecution in the ICC. I make no guarantee of any kind. I am being as candid as I ought not to be.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down so that I can reply, can I clarify one matter with him? He is quite right; the last thing I want is to have preliminary skirmishes of the kind he referred to. Am I not right that the problem of the writ of habeas corpus is that it does not deal with any question other than the legality of the detention? One's rights are determined if one gets a release with a writ of habeas corpus; it is determined that one has been unlawfully detained. But if, on the other hand, some other relevant fundamental right has been breached, does he agree that the writ of habeas corpus cannot provide an effective remedy by way of a judicial determination—a non-binding determination because it is only a declaration—reasoned and able then to be sent on to the International Criminal Court? Does he agree that, leaving aside the solution to the problem, that is the problem with confining the issue to a writ of habeas corpus?
Lord Williams of Mostyn: I understand that is one aspect which troubles the noble Lord. But it is for the competent court to come to the decision about respect or not of rights. He knows as well as I do that a judicial review is not an appeal on the merits, it is only an appeal on, as it were, the structures of the decision-making. I am putting the issue in terrible shorthand and not in ordinary language. I shall think about this matter. I am more than happy to discuss matters with noble Lords. But I stress that this is a genuinely open-minded suggestion. I am not making any commitment because I am not in a position to do so.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Attorney-General for the generosity and open-mindedness of his and his colleagues' approach to the problem. It is now well-established that, for example, one cannot use habeas corpus to complain about conditions of detention, as distinct from the legality of detention.
There was the famous and very frank American case of Herbage where he was detained in Brixton and was too large for his cell. He tried to use habeas corpus. So his fundamental right not to be subjected to inhuman and degrading treatment was breached under Article 3 of the convention. In the end the courts came to the conclusion that habeas corpus was the wrong remedy and that judicial review was the right one.
I am entirely content with an approach which confines the remedy to a purely declaratory remedy and which does not widen the scope of judicial review beyond a remedial order that can be transmitted to the International Criminal Court that the determination of the national court is that the individual's rights have not been respected. That is all I seek. Having heard the noble and learned Lord, I am sure that the right
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approach is to leave the matter now for further discussion. I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
[Amendments Nos. 57 to 61 not moved.]
Clause 12 agreed to.
Clause 13 [Waiver of right to review]:
[Amendments Nos. 62 to 64 not moved.]
Clause 13 agreed to.
Clauses 14 and 15 agreed to.
Clause 16 [Bail and custody: general]:
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 65:
Page 9, line 30, at beginning insert ("in England and Wales,").
The noble Lord said: In moving Amendment No. 65, I shall speak also to Amendment Nos. 66, 67, 70 and 71. These are tidying up amendments concerning the operation of bail.
Amendment No. 65 seeks to make clear that Clause 16(1)(b) applies only in England and Wales because bail operates in a different way in England and Wales than in Scotland. In Scotland a person is not "remanded on bail" but is granted bail. There are other considerations behind that.
Amendment No. 66 intends to enable a court in Scotland to grant bail on the standard conditions or, if appropriate, on special conditions if the circumstances of the case so demand. The amendment seeks to ensure that the bail provisions of the Bill are in conformity with the bail provisions contained in Section 24 of the Criminal Procedure (Scotland) Act 1995.
Amendment No. 67 again seeks to reflect the correct legal terminology used in Scots law; that is, interpreting the Rome Statute into our United Kingdom statutes.
Amendment No. 70 provides that the person applying for bail shall receive intimation of the International Criminal Court's recommendations and be given an opportunity to address the points made. The thought behind the amendment is that Clause 18(1)(c) states that,
"bail shall not be granted without full consideration",
being given to the recommendations made by the ICC. If these recommendations could have an impact on whether a person is granted bail, the person, surely, should be given an opportunity to address the court in response to the points made. I am advised that if the amendment is passed it will ensure that court proceedings are open and transparent in accordance with Article 6 of the European Convention on Human Rights. I beg to move.
Lord Williams of Mostyn: I am grateful to the noble Lord for the explanation of his thinking. May I deal first with Amendments Nos. 65 to 67. I appreciate that the amendments seek to bring the bail arrangements

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more closely into line with Section 24 of the Criminal Procedure (Scotland) Act 1995. I see the virtue of that. The amendments recognise, however, that the provisions in the 1995 Act cannot be followed exactly because the new concept of "proportionate" conditions is introduced. The virtue of our present wording, which I am obliged to stand to, is that it closely follows the approach in Section 9(3) of the Extradition Act 1989. It has been a well-tested model. I am not convinced that we should go away from it.
With regard to Amendments Nos. 70 to 71, I sympathise with the reasoning put forward, which I fairly summarise as if the ICC recommendations on bail in Clause 18(1) are notified, then the person most particularly concerned with release should have an opportunity to address the court and make representations. That will happen in the ordinary course of events because Clause 18(1)(c) states that,
"bail shall not be granted without full consideration of any recommendations made by the ICC".
It is necessary for full consideration to occur that representations are made. Therefore, it would not add anything to that provided by the normal court procedure. The same applies to subsection (2)(c).
In Amendment No. 71 the suggestion that a person should be granted bail unless clear and convincing evidence were put forward as a reason for refusal goes against the absence of a presumption either for or against bail, which we consider important. Perhaps a little more fundamentally, it goes against Clause 59(4). For that reason, although I understand the noble Lord's motivation, I am not able to accept these amendments.
Lord Howell of Guildford: I am grateful to the noble and learned Lord. I paraphrase what he said about the first amendment: if it ain't broke, don't fix it. That is what he is saying in relation to the procedures which, he says, have worked well in the past, despite the apparent anomalies drawn to our attention. In the light of that and his comments on the later amendments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 66 and 67 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 68:
Page 9, line 36, leave out ("on").
The noble Lord said: In moving Amendment No. 68, I shall speak also to Amendment No. 69. Amendment No. 68 is consequential upon Amendment No. 67. It needs no further explanation. Amendment No. 69 seeks to extend the ambit of Clause 16(5). It would ensure that a court cannot release on bail a person who is on remand pending trial in a national court. If the national court has remanded a person in custody pending trial, then a court could not grant bail subsequently to that person in respect of an ICC matter. As currently drafted, the Bill covers
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those serving a sentence of imprisonment but does not deal with those on remand. The amendment seeks to clarify the position. I beg to move.
Lord Williams of Mostyn: I shall deal with both amendments at the same time. Amendment No. 68 is entirely consequential on Amendment No. 67.
On Amendment No. 69, the noble Lord, Lord Kingsland, has raised some interesting points. For the record, shock and horror were registered on the otherwise beatific countenance of the noble Lord, Lord Kingsland. I should like to consider this matter quite carefully. I cannot accept the amendment in its present form but I recognise readily that a point of substance has been raised. I undertake that we will seek to provide a suitable amendment to reflect the purpose of the noble Lord, Lord Kingsland. I am more than happy—when we have a preliminary amendment to hand—to have a discussion with him. I hope that we shall be able to come to an amicable agreement.
Lord Kingsland: With my features suitably readjusted, I should thank the noble and learned Lord for his response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 69 not moved.]
Clause 16 agreed to.
Clause 17 agreed to.
Clause 18 [Bail and custody: consultation with the ICC, &c.]:
[Amendments Nos. 70 and 71 not moved.]
Clause 18 agreed to.
Clauses 19 to 21 agreed to.
Clause 22 [Unscheduled landing]:
[Amendment No. 72 not moved.]
Clause 22 agreed to.
Clause 23 [Provisions as to state or diplomatic immunity]:
Lord Lester of Herne Hill Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 73:
Page 13, line 9, leave out subsection (4).
The noble Lord said: Under the Bill as it stands the Secretary of State may—
Lord Williams of Mostyn: I think we had agreed that at about this time we would ask that the House resume. The noble Baroness, Lady Hamwee, has come in on that basis. Would it be convenient to resume the House at this stage?
Lord Lester of Herne Hill: I began with a few words. I apologise in advance that I will never complete that sentence because I cannot be here for the next day in Committee; otherwise, it is plainly for the convenience of the House that I should not do so.
[Amendment No. 73 not moved.]
Baroness Ramsay of Cartvale: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Children's Commissioner for Wales Bill
7.26 p.m.
Brought from the Commons; read a first time, and to be printed.

Business
Lord Carter: My Lords, before we move to the Motion and the Prayer, it may be for the convenience of the House if I say a word about the procedure that will follow in relation to these two items. The noble Baroness, Lady Hamwee, will move her Motion and in so doing will make her speech. There will then follow a single debate. The noble Lord, Lord Dixon-Smith, will speak next. The Minister will speak at the end. The noble Baroness, Lady Hamwee, will then have the opportunity to reply and will either press her Motion or withdraw it. If the noble Baroness presses her Motion to a Division and wins, the House authorities have advised that the Motion in the name of the noble Lord, Lord Dixon-Smith, will be pre-empted and he will not be able to move it. If, however, the noble Baroness loses her Motion or withdraws it, the noble Lord, Lord Dixon-Smith, can choose whether or not to move his Motion. If the noble Lord, Lord Dixon-Smith, moves his Motion, he may do so formally. We will then have any further Division without any debate. I hope that that clarifies the position.

Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000
Baroness Hamwee: My Lords, I beg to move the Motion standing in my name on the Order Paper. It is a long Motion but with a short point of principle at its heart.
The regulations in question—whose title runs for two lines—are required by the Local Government Act 2000 but they are also—I hope that I may say this without offence—more importantly required by their principle of maximum openness in government at every level. On this occasion we are talking about local government.
During the passage of the Local Government Bill, as it then was, we on these Benches made it quite clear that our support for the Bill depended, in part, on acceptable access to information provisions. We tabled amendments that required meetings to be open to the public and the press, who are a very important part of the democratic process, providing information about what goes on locally. The amendments required those meetings to be open when councils were
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discussing matters pertaining to decisions. We did not press our amendments because the Government produced their own inevitably more carefully crafted amendments which we were happy to support. They are now reflected in Section 22 of the Act.
On 24th July 2000 (at col. 59 of the Official Report) the noble Lord, Lord Whitty, explained to the House that the amendments provided the foundations of the robust regime for public and media access to ensure that people will know what decisions the executive of the local authority is planning to take, how they can make their in-put to those decisions, what decisions have been taken and the reasons for those decisions. That statement was helpful and very important. It spelt out what accountability is: it is not simply being able to point to the person or the group who makes the decision; it is the whole process of decision making—access by those who have an interest and a contribution to the final decision.
The Act allows—in parliamentary terms that means "requires"—the Secretary of State to make regulations. A draft was published last summer. We now have regulations that are in force together with statutory guidance regarding their application. After the publication of the regulations, it was drawn to our attention that they do not wholly achieve the access which we sought and which I believe the Government intended when the matter was debated last summer.
We know that there are problems with orders. We are all aware of the convention that we do not vote on—that is, vote against—orders, or at any rate only in the rarest of circumstances. I should point out that "convention" is a term which has a different definition depending on the occasion. We know also—it is particularly important in this context—that orders are unamendable. There is no opportunity to influence their content during the formal legislative process. My own view is that I would much prefer to be able to amend orders, but that is not the issue for the House today. We need to consider what can be achieved in the context of an unamendable order accompanied by guidance issued by the Government—guidance that can be reissued.
Aware of these difficulties in procedure, we decided that the mature way to proceed was to approach the Government to discuss our concerns. We did not simply produce those concerns like a rabbit out of a hat and bring them before the House. Discussions have taken place with Ministers in both Houses. It is perfectly right that, in the context of a discussion about access to information, I should make that point clear. I do not know whether the Conservatives have made a similar approach. No doubt we shall hear from the noble Lord, Lord Dixon-Smith, on that matter.
We approached the Government in order to see what could be done to meet our concerns. I hope that the Minister will be able to assure us and, more importantly, the House on the points that I raise. I shall do so as briefly as I can, recognising that, to those who have not lived with this issue, the points may appear a little opaque. I apologise for that.

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First, under the provisions, the "key" decisions must be made in public. Under Regulation 8(1)(a), the first type of key decision is one likely to result in a local authority incurring expenditure or making savings which are,
"significant, having regard to the local authority's budget, for the service or function in question".
The term "significant" is not an easy one. Different authorities will inevitably take a different approach to the matter. The Government have referred to the term in their guidance but we are concerned to ensure that there are financial thresholds above which decisions are key; or, to put it another way, below which they can be decided in private. That is what we are seeking to minimise. We need to be satisfied that the levels cannot be set ridiculously high by an individual local authority.
I accept that this is a sensitive matter for authorities. If the Government are able to tell us that they can move forward on this point. I hope that they will also tell us that that will be through consultation with local authorities.
Secondly, a key decision under the regulations is one that is significant for communities in two or more electoral wards. The guidance, which puts a gloss on this, provides that large rural wards can be regarded by a local authority as two wards. I do not think that the two-ward test meets the test of common sense. Frequently, decisions are taken which have a huge effect—but an effect on a limited number of people. I shall not weary the House with examples. I am sure that noble Lords will be able to think of them from their own experience.
My third point concerns draft reports. Local authorities should not be able to get away with using the label of "draft report" on what is substantively a final report. Such a report should be treated as final and should be dealt with in public. Nor should an authority be able to use the urgency procedures, with which I am sure the House will be familiar, to avoid the requirement to make reports available three days in advance when the only urgency is a failure to finalise the report in time for the normal procedures.
My fourth point concerns briefing meetings with officers. Under Regulation 7(2), a meeting is not a meeting to which the access provisions attach if it is for an officer to brief the decision-makers. I ask the Minister to give the House an assurance that it will be made clear that this cannot be used as a get-out. Regulation 7(2) applies to Regulation 7(1)(b) and (c). I am sure the Minister follows what I am saying. I apologise again to other noble Lords. I ask him for a further assurance that any key decision of an executive or of a committee of an executive must be taken in public, subject to the usual provisions about exempt confidential and commercial matters.
My next point concerns matters where there is a change of policy. Under the new executive scrutiny split, policy is a matter for the full council. But policy does not spring fully formed onto an agenda. There is a process of policy-making. The involvement of the public in that policy-making—both access to it and,
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because of access to it, ability to contribute to it—is most important. I should like to be assured that a decision by an executive in the course of developing policy proposals will be treated as a key decision.
Finally, I return again to the helpful statements made by the Minister on 24th July 2000. He said that the Government would ensure that their intention,
"for open meetings cannot be subverted by an executive separating a pertinent discussion about a key decision from the meeting where it collectively agrees that decision or through its scheme for delegating formal decision-taking to an individual member of the executive or an officer of the authority. The principle is clear. Where executives meet formally to discuss key decisions, they should do so in public regardless of who will formally take the decision".—[Official Report, 24/7/00; cols. 59–60.]
That is an important point. Decisions should not be delegated through a formal procedure in order to avoid their being discussed and debated in a public and accessible fashion. The guidance needs to be clear on that point.
I turn to the guidance. We have the two documents at the moment—the regulations and the guidance. We already have a provision in the guidance that alters the provisions of the regulations. That relates to the number of wards affected. I hope that the Minister can explain to the House that we are not in the uncomfortable constitutional position of what appears to be a subordinate document over-ruling the primary document—the regulations. I believe that, given the status of statutory guidance, local authorities need to have regard to it. Can the Minister assure noble Lords that no conflict exists between the two? I refer not only to the question of wards, but also as regards the matters I have raised this evening, if they should be included in guidance rather than put on the face of an order.
Finally, we are entering new waters in local government. I believe that, assuming that we finish this evening's proceedings with the regulations in place, it would be reasonable to review them after a short period of implementation and experience. Can the Minister say whether the Government would be prepared to review the regulations; namely, to consult fully and openly and then to revise in short order on the basis of that consultation? If that is so, when? I beg to move.
Moved, That this House calls on Her Majesty's Government to revoke the Local Authorities (Executive Arrangements) (Access to Informational (England) Regulations 2000 (S.I. 2000/3272), laid before the House on 19th December 2000, and to lay before it in their place regulations which would—
(a) improve the definition of "key decisions" such that one of the tests is whether a decision is significant in terms of its effects on people in one ward or a wider area rather than in two wards as defined at present;
(b) specify the minimum financial thresholds for expenditure or savings decisions by an executive above which a decision is a key decision in such a manner as to minimise arbitrary variations between authorities;

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(c) require that a decision which makes a significant change to the existing policy or established practice of an authority, even within the framework of matters delegated by that authority to the executive, is a key decision;
(d) remove the conflict between Regulations 2 and 9 so that it is explicitly required that all reports relating to key decisions shall be deemed to be in a final form, and not in draft, at least three clear days before the decision is taken in order that executives shall not be able to avoid advance disclosure of such reports; and
(e) prevent avoidance of the requirement for cabinets to meet in public by barring officers from briefing a full cabinet of a local authority executive in secret unless the subject matter of the briefing is confidential or exempt within the terms of Part VA or Schedule 12A of the Local Government Act 1972.—(Baroness Hamwee.)
Lord Dixon-Smith: My Lords, on 23rd January, a debate was held in another place on an humble Address calling on Her Majesty to annul the draft Local Authorities (Executive Arrangements) (Access to Information) Order. It was a long and interesting debate. It would certainly be worth anyone's while to take the time to read it. At the end of the debate, 31 Liberal Democrat Members of Parliament—the strength of the party in that House is 46—voted for the prayer to annul the draft order. The Municipal Journal subsequently reported the Liberal Democrat spokesman on local government, Mr Don Foster, to have said that Liberal Democrat Peers were ready to join forces with Tory Peers to veto the regulations.
What happened subsequently is interesting, instructive and—I shall dare to confess this to the House—a lesson to myself. The noble Baroness, Lady Hamwee, beat me to the Clerk's office. She tabled a Motion for a Prayer to annul the order. That stood on the Order Paper for a number of days. In the middle of last week, I indicated to her that we intended to support her Motion. At that time, the noble Baroness gave no indication that there was any intention to approach the Government for further discussions, nor was there any subsequent indication that that had happened. As a result, I was somewhat surprised when, on Monday, that Motion was withdrawn and on Tuesday the Motion that the noble Baroness has moved this evening was tabled on the Order Paper. In the circumstances, I should have thought that I would have been entitled to be told that something was going on. However, that being the case, it seemed to me that it was entirely proper to reinstate the original Motion put down by the noble Baroness, but now, of course, tabled in my name. At the appropriate time, I shall ask the House to reject the Motion tabled in the name of the noble Baroness and to support what is now my Motion.
I have received briefing material on this matter from the Campaign for Freedom of Information, which considers that the regulations as drafted are in need of significant improvement. I also received briefing
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material from the Newspaper Society, which identified three notable areas of weakness. The Society of Editors shares those concerns and spoke of the possibility of dubious interpretation of the precise wording of the regulations. I am bound to say that the speech of the noble Baroness supported those concerns. Furthermore, they mirror completely my own concerns about the regulations.
It was interesting to note an article in the Local Government Chronicle of 22nd January, under the joint authorship of George Jones, Professor of Government at the London School of Economics, and John Stewart, Professor of Local Government at Inlogov, a part of the University of Birmingham. These gentlemen are two of the foremost authorities on such matters. The article commences by saying that:
"The Local Government Act 2000 is a piece of bad legislation. It is a classic example of central prescription based on no real evidence".
It then concludes by saying:
"How much better it would have been for the Government to have allowed innovation and not assumed it knew the form the innovation should take. The experience so far suggests the centre does not know best".
That sentiment is echoed by councils and councillors up and down the country.
On the subject of our present debate, the authors state that:
"Generally the consequence could be to drive decision making away from the public arena of the cabinet to the privacy of the individual decision maker, sometimes after private discussions by the cabinet".
I shall not embarrass the Government by continuing to quote from that article. However, once again, it is worth everyone's time to read it.
Having made much of the need to break down obsessive and unnecessary secrecy in government, which includes local government, the Government are hoist by their own petard. As the Motion tabled in the name of the noble Baroness, Lady Hamwee, makes clear, the draft regulations before us are almost as full of holes as Gruyere cheese. Our problem lies in how best to tackle this difficulty. However appropriate may be the Motion brought forward by the noble Baroness—I do not quarrel with its detail—if it were passed, all that it would represent is an opinion of this House. The draft regulations, with all their flaws, would in any event come into force. The Government need not do anything else. Political reality, given the imminence of a possible general election, suggests to me that this is what will happen. That is the reason why I ask the House to reject the Motion in the name of the noble Baroness.
On the other hand, if the House supports my Motion for an humble Address praying against the draft order, and it succeeds, then we shall have the certainty that the Government will be obliged to bring forward revised orders and thus we shall have created an opportunity for improvement.
The Minister may well try to argue that there is no time to allow this to be done. I do not accept that argument. It would not take very long for suitable revisions to be made. If such revisions were published

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and a revised order then laid before the House, local government would do what it has always done—and, indeed, what it is doing at present. It would try to work within the draft regulations, on the blithe assumption that they would be approved, which would almost certainly he the case. Indeed, that is happening already. If one visits local authorities up and down the land, they have the draft regulations and are looking at how they need to alter their procedures in order to comply. Even if the new draft regulations had not been approved, local authorities across the country would do their best—as they always have done—to work within the intentions of Parliament.
I accept that the Minister could withdraw his draft order, although I believe that he would have some difficulty with that as regards Members of his own party in another place. However, if he were to do so, then I would not need to press my Motion for an humble Address. In the event that he does not, I shall find it necessary to press my Motion to a vote.
Lord Bowness: My Lords, I had the privilege of chairing the pre-legislative Joint Committee which examined the draft local government Bill from which the Local Government Bill sprang, which in turn gave birth to these regulations. In that report—from which there were no dissenters—we stated in an early paragraph that we considered that the objectives of the Bill, to promote efficiency, transparency and accountability, were laudable. As a committee, we saw merit in the inclusion of a clause in the Bill to state this purpose.
In its response, the Government declined to include such a clause, stating that they had set out the objectives very clearly in the Explanatory Notes to the Bill. Sadly—and I genuinely mean sadly—I feel that that has not come through in the regulations before your Lordships' House today.
I am not one of those who is implacably opposed to the notion of cabinet government in local government. Nor do I oppose the ability of a cabinet to meet in private and receive advice within the formal structure of the local authority, provided that decisions are made openly and the basis of those decisions is made clear. In this regard, we seem to be making the question of whether or not decisions should be made in public extraordinarily complicated, rather than relying on the simple exemptions set out in regulation 21, which have formed the basis of similar judgments for local government in the past.
For me, the issues which cause problems with the regulations relate to the definition and description of documents that can be available for inspection. If a decision is made on the basis of advice contained in a document, and that document can be excluded from public scrutiny by virtue of being labelled a draft, there is a clear opportunity for the inventive to circumvent the system.
Indeed, you did not need to be inventive under the old provisions of local government. When I was in local government, I have done precisely that. The difference was, of course, that the decision was not
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made at that time by the body considering the draft report; the decision had to be made in public on the basis of final reports. There is a clear difference between a draft which is under consideration and upon which no decisions have yet been based and a draft which has been acted upon. In the latter case, there ought to be no exemptions at all. Whether authorities should take decisions on the strength of draft reports is another question.
I also read the regulations to say that they exempt from publication advice from political advisers. That is understandable. But if the executive decision, or the individual executive decision, is not supported by any other advice, should it not then become public? The recording provisions require details of rejected alternatives to be set out. So there clearly could be a situation where officers' advice is rejected, their report is published, but, if the decision had been taken on the strength of political advice, there would be no published report to support that decision. Were there regulations to ensure that this was not the case, I doubt if any decisions would then be taken on party political advice alone.
On these matters alone, I would ask the Minister to think again and to redefine these regulations. With great regret, I have to say that I do not believe that the regulations as drafted will achieve the transparency we all sought to achieve in a new, invigorated system of local government.
Baroness Maddock: My Lords, I wish to add my strong support to the case so ably made by my noble friend Lady Hamwee. I sincerely hope that the Government will be able to respond because, at the moment, they are party to new arrangements which will mean that more issues will be discussed and decided in secret in councils up and down the country.
My main purpose in speaking is to emphasise the importance of openness and access to the democratic process. At a time when we can see clear evidence that the public's trust in politicians is at a very low level, it must behove us all to do nothing to add to that mistrust. It is clear that the Government understand the concerns expressed by Members of another place, by Members of this House and by people in the wider world. We know that the Minister gave promises during the passage of the legislation last year, and we find it regrettable that the regulations are not as strong as those promises.
As matters stand, I believe that we have now a combination of local discretion and loose definition which will mean that the public are unlikely to become aware of many decisions affecting them until those decisions have been made. We are all rightly concerned about the low turn-out in elections and the lack of interest in local government. Recent government announcements have emphasised—and we agree—that there must be a bottom-up approach.
My practical experience over a dozen years in local government in Southampton showed me how important it is to be open and accessible. Councillors who were not on committees were allowed to make

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their case, as were the public. They put their case and they helped with small and large decisions. Indeed, on occasions, it gave them a thirst for battle at the polls. I think many of them thought they might do a better job. I and others encouraged people to take part in the democratic process. In my ward, the turn-out was often higher than in other areas.
In short, openness and access assists people to participate in the local democratic process. That is at the heart of what we are discussing today. I fought with others in the 1980s for open government. I never thought that at the beginning of the next century I would be fighting that battle again. I hope that the Government will see the error of their ways, answer some of the questions raised today and do something to improve on their promises of last year.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I am grateful for the interest shown in the debate. I recognise that there has been concern around the country and that noble Lords in the Chamber for the debate reflect some of that concern. I am prepared to respond to those concerns. I am particularly gratified to see the noble Lord, Lord Harris, in his place tonight. I think that the whole House will share that sentiment.
The Government absolutely agree with what the noble Baroness, Lady Maddock, said about transparency and accountability, and with what the noble Lord, Lord Dixon-Smith, said about the need to ensure that the public have faith in these processes. However, we are facing an argument from the Opposition Benches and, perhaps, to a certain extent, from the noble Baroness, Lady Maddock. It is argued that these regulations will lead to greater secrecy and less accountability, whereas the opposite is the case. It was also argued that the annulment of these regulations, as proposed quite explicitly by the noble Lord, Lord Dixon-Smith, would lead to a better situation, whereas I would argue the exact opposite.
Let me make three initial points. First, if these regulations are annulled, the position will be simply that there will be no requirement whatever on councils to be open. It is not the case that without these regulations councils will be unable or prevented from adopting executive arrangements—of course they would not be. Parliament has given them the powers and the duties to do so. Nothing we do today will change that. Removing these regulations in the way suggested by the Prayer of the noble Lord, Lord Dixon-Smith, would simply have the effect that, when councils adopt executive arrangements, it would be left entirely to them and their executives to decide what is open and what is to be done in secret, thereby maximising the possibility of abuse and secrecy.
Lord Dixon-Smith: My Lords, I am absolutely fascinated. The Minister appears to be implying that if the Prayer against these regulations succeeds, the Government will then do nothing. I find that remarkable in the light of the unanimous view around
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this House, as I understand it, that we want the maximum openness and proper regulation. What we do not want is inadequate regulation.
Lord Whitty: My Lords, I am simply pointing out that the effect of the noble Lord's amendment would be a reversion, a regression, to the status quo; and the status quo is not appropriate for the new structure of councils. In other words, what the noble Lord seeks is impossible within the provisions of the Act. In so far as we were to go down that road, it would lead to fewer requirements on councils to pursue their decisions openly and to greater abuse. What the Government did in such circumstances would obviously be a matter for us; we should have to consider the situation. But the straightforward effect of what the noble Lord intends to do tonight will lead to more secrecy and more abuse.
We recognise that there is anxiety around the country, some of which is reflected in the House tonight. The reason is that some councils—councils of all political persuasions; I am not trying to make a party-political point—during the transition to the new arrangements, in trying to find new ways of working within the existing laws, have frankly become more rather than less secretive. We deplore that. The Government have consistently condemned such behaviour, whatever political party is in power in the town halls and county halls. But it has happened—and it has happened under the existing law, the very status quo to which the noble Lord wishes to return.
Thirdly, throughout the preparation of the regulations and the guidance on which we are now working, we have been careful to consult people widely and to listen to people's concerns and ideas. We do not pretend that what we have got is perfect. We have been grateful for other people's advice. We have been grateful that we have been able to discuss with our Liberal Democrat colleagues. Contrary to what the noble Lord, Lord Dixon-Smith, suggests, we believe in discussing these matters with political colleagues. In this context I am prepared to regard the noble Lord, Lord Dixon-Smith, as a colleague; however, he and his noble friends did not seek to discuss ways through this, whereas the noble Baroness did. As a result, I believe that we have reached some understanding as to how the guidance should be drafted, which is a sensible mode of carrying on consensual democracy. If the noble Lord, Lord Dixon-Smith, wishes to stay outside that consensual democracy, that is a matter for him and for his party. It is all very well for his colleagues in another place to take votes on these matters because the consequences of what they do do not matter. The consequences of what is done here, were the noble Lord to win this vote, do matter. It is important, therefore, that posturing should not be undertaken. We believe that as a result of discussions with the Liberal Democrats and with others we have reached a more sensible outcome.
Part of that is to indicate that if we have not got the matter right, we have a mechanism for looking at it again. We shall review and consult on the operation of the regulations and, as appropriate, amend them

1339
12 months after the councils have begun to operate executive arrangements. To respond to the question put by the noble Baroness, Lady Hamwee, in practice, that means about June 2002.
The regulations provide the regime of openness and they provide for the executive arrangements. I remind the House that there are certain areas around the country in which anxieties have been expressed and which are not covered by these arrangements—the quasi-judicial functions of the council, in deciding planning applications, for example, are not matters for the executive and are therefore covered by the existing arrangements. There is no change in that situation.
What will happen under these arrangements is that, for the first time, decisions will be notified well in advance. For the first time, papers relating to key decisions will be available as soon as they are finalised and, in line with the current regime, they will have to be available at least three clear days in advance. For the first time, key decisions to be taken by officers will be subject to the same access to information requirements as decisions to be made by members under current arrangements. For the first time, the legislation includes an explicit requirement that substantive discussion of key decisions to be taken collectively is held in public as well as at the formal decision-making meeting—in the past, in councils of all persuasions, this may occasionally have been a rubber-stamping operation. That is an extension of openness. It provides access to information; it is not a restriction.
The noble Lord made much of the fact that on occasions an executive can meet in private. He seeks to contrast that with the position under the existing Part VA. But that is not a direct comparison. Such meetings can take place and, by the noble Lord's own admission when he referred to the current practice of secret councils, they do take place. Under Part VA it is entirely possible for there to be private meetings. But what we are trying to ensure is that key decisions are subject to public meetings. The decisions that are not key decisions under the new arrangements and the new guidance are decisions which officers routinely make, currently without any public papers and without any record of those decisions.
The noble Baroness raised a number of points. We share her aim, and I understand some of her concerns. She raised, for example, the question of financial thresholds. I want to make it clear that we shall, as soon as reasonably practicable, be consulting on our definition of appropriate thresholds. We intend now to revise our guidance and make clear our intention to consult on thresholds and, in the light of that, to include the guidance indicating the thresholds for service or function budgets above which any likely expenditure of savings would make a decision key.
The noble Baroness made a point about one ward making a significant decision rather than two wards; and she mentioned the issue of draft papers, briefing meetings with officers and decisions which alter policy or established council practice. We understand and sympathise with those concerns. We believe that the
1340
regulations and the guidance will deliver what the noble Baroness is seeking. Nevertheless, following the discussions that we have had and taking into account the points she makes, we shall be revising the guidance to make it more robust on these issues.
The noble Lord, Lord Bowness, raised the issue of draft reports and claimed that the regulations make it possible for reports never to see the light of day simply by keeping the reports in draft form. That is not possible under these regulations. Regulations 9(1) and 11(3) require papers to be made available at least three clear days before a decision is taken. That cannot be got round by claiming that a decision was made on the basis of a draft report.
Lord Bowness: My Lords, I am sorry to interrupt the Minister, but will he expand a little on that answer? Part I of the regulations states that,
"'document' means any report or background papers, other than that only in draft form, taken into consideration in relation to an executive decision".
As I read the regulations, in no way is that qualification removed if the draft documents are used in connection with the making of an executive decision or an individual executive decision.
Lord Whitty: My Lords, even under existing procedures a decision cannot be made on a report that is not a permanent report. The guidance will make that clear. Therefore, one cannot get round the regulations by taking a decision on a draft report and not issuing the draft report in accordance with the "three days" guideline.
The noble Baroness asked me to indicate clearly the status of the guidance to which I have referred and which will elaborate on the regulations. It is guidance to which, in law, councils must have regard. The regulations in a sense set the minimum standards; the guidance builds on that and provides for the approach. The guidance and the regulations cannot contradict each other—which was the other point raised by the noble Baroness. Councils could depart from the guidance only if they could show well reasoned grounds for so doing. That clarifies the relationship. There can be no conflict. Councils must follow the guidance unless they have reasonable grounds for departing from it.
The noble Baroness referred to our debates in July and to what I said about formally delegating powers to an individual member or to an officer for decision. I stand by what I said in July. These regulations will not allow councils to get around a situation by delegating the powers to an individual. The process of delegation cannot get around the requirements for openness where the substantive decision is taken.
I submit that the regulations, taken together with the proposed guidance under the regulations which I have given an indication of tonight, far from creating a new culture of secrecy will restrict greatly some of the circumstances in which secrecy has in the past been achieved and will lay the foundation of a new regime

1341
of efficiency, transparency and accountability. I commend the regulations as they stand to the House and ask the House to resist attempts to annul them.
Lord Dixon-Smith: My Lords, before the Minister sits down, does he accept that he is in breach of his own pleading for openness? At no time has there been any indication to me or to anyone else on my side of the House that there would ever be any attempt to arrive at a consensus approach to this issue. One might reasonably have thought that if that was the intention it would have happened, but it has not. I regret that. The Minister has said that he will bring forward revisions and guidance. He has not put a time-scale on that action. I cannot say at this stage that I am satisfied with the situation.
Baroness Hamwee: My Lords, I note the comments of the noble Lord, Lord Bowness, who speaks as an ex-leader of a local authority. He knows the right and wrong ways of going about these matters and what is what. His contribution was helpful.
I apologise that I have not been able to talk to the noble Lord, Lord Dixon-Smith, over the course of the past few days—I hope that my Motion is a clear enough indication of how our minds are working—I have been much involved elsewhere, but I certainly did not intend any personal insult to him. He said that my speech supported his arguments. I am delighted to hear that. When I first raised this issue during the course of the Bill by way of an amendment the speakers were my noble friends Lady Miller of Chilthorne Domer and Lord Tope. The Minister replied. There was no speaker from the Conservative Benches. With, I think, six exceptions—I may be wrong—on the Vote at the end of the group the Conservatives stayed in their places and did not vote. I also note that what we have heard from the noble Lord is opposition but no positive proposal.
I thank the Minister for the assurances that he has given tonight. They are real assurances, not just expressions of understanding. We on these Benches want to achieve improvements now. I believe that on the basis of the assurances we shall do so. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000
Lord Dixon-Smith: My Lords, we have already had sufficient debate. I beg to move the Motion standing in my name on the Order Paper..
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 19th December 2000, be annulled (S.I. 2000/3272).—(Lord Dixon-Smith.)
8.14 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 116.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Hunt of Wirral, L.

Arran, E.

Jenkin of Roding, L.

Astor of Hever, L.

Jopling, L.

Attlee, E.

Kimball, L.

Bell, L.

Knight of Collingtree, B.

Blackwell, L.

Luke, L.

Blatch, B.

McColl of Dulwich, L.

Bowness,L.

Mancroft, L.

Brabazon of Tara, L.

Marlesford, L.

Bridgeman, V.

Miller of Hendon,B.

Brougham and Vaux, L.

Montrose, D.

Burnham, L. [Teller]

Murton of Lindisfarne, L.

Byford, B.

Naseby, L.

Campbell of Croy, L.

Newton of Braintree, L.

Colwyn, L.

Noakes, B.

Cope of Berkeley, L.

Northbrook, L.

Craigavon, V.

Norton of Louth, L.

Crickhowell, L.

Onslow, E.

Cumberlege, B.

Pearson of Rannoch, L.

Dixon-Smith, L

Pilkington of Oxenford, L.

Elles, B.

Plummer of St. Marylebone, L

Elliott of Morpeth,L.

Renton, L.

Elton, L.

Ryder of Wensum, L.

Fookes, B.

St John of Fawsley, L.

Freeman, L.

Seccombe, B.

Gardner of Parkes, B.

Selborne, E.

Geddes, L.

Shaw of Northstead, L.

Henley, L. [Teller]

Stewartby, L.

Higgins, L.

Strathclyde, L.

Hooper, B.

Swinfen, L.

Howe, E.

Vivian, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Dholakia, L.

Addington, L.

Dubs, L.

Amos, B.

Eatwell, L.

Andrews, B.

Elis-Thomas, L.

Archer of Sandwell, L.

Evans of Temple Guiting, L.

Ashton of Upholland, B.

Evans of Watford, L.

Avebury, L.

Ezra,L.

Bach, L.

Falconer of Thoroton, L.

Barker, B.

Farrington of Ribbleton, B.

Bassam of Brighton, L.

Faulkner of Worcester, L.

Berkeley, L.

Filkin, L.

Billingham, B.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Borrie, L.

Gilbert, L.

Bragg, L.

Goldsmith, L.

Brennan, L.

Goodhart, L.

Brooke of Alverthorpe, L.

Gould of Potternewton, B.

Brookman, L.

Graham of Edmonton, L.

Burlison, L.

Grenfell, L.

Carter, L.[Teller]

Hamwee, B.

Chandos, V.

Harris of Greenwich, L.

Clarke of Hampstead, L.

Harris of Haringey, L.

Clinton-Davis, L.

Harris of Richmond, B.

Cocks of Hartcliffe, L.

Hayman, B.

Crawley, B.

Hilton of Eggardon, B.

Darcy de Knayth, B.

Hollis of Heigham, B.

David, B.

Hooson, L.

Davies of Oldham, L.

Howells of St. Davids, B.

Desai, L.

Howie of Troon, L.

1343

Hoyle, L.

Rea, L.

Hughes of Woodside, L.

Rendell of Babergh,B.

Hunt of Chesterton, L.

Rennard, L.

Hunt of Kings Heath, L.

Renwick of Clifton, L.

Irvine of Lairg. L. (Lord Chancellor)

Rodgers of Quarry Bank, L.

Jannerof Braunstone, L.

Roper, L.

Jay of Paddington, B. (Lord Privy Seal)

Sainsbury of Turville, L.

Jenkins of Putney, L.

Sawyer, L.

King of West Bromwich, L.

Scotland of Asthal, B.

Layard, L.

Scott of Needham Market, B

Lea of Crondall, L.

Serota, B.

Macdonald of Tradeston, L.

Sharp of Guildford, B.

McIntosh of Haringey, L. [Teller]

Simon, V.

McIntosh of Hudnall, B.

Smith of Clifton, L.

MacKenzie of Culkein, L.

Stone of Blackheath, L.

Maddock, B.

Thomas of Walliswood, B.

Massey of Darwen, B.

Thornton, B.

Mitchell, L.

Tomlinson L

Morgan, L.

Tope, L.

Nicol, B.

Tordoff, L.

Northover, B.

Uddin, B.

Oakeshott of Seagrove Bay, L.

Walker of Doncaster, L.

Parekh, L.

Wallace of Saltaire,L.

Plant of Highfield, L.

Walmsley, B.

Puttnam, L.

Warner, L.

Ramsay of Cartvale, B.

Wedderburn of Charlton, L.

Razzall. L.

Whitaker, B.

Whitty, L.

Wilkins, B.

Williams of Mostyn, L.

Williamson of Horton, L.

Resolved in the negative, and Motion disagreed to accordingly.

Slaughterhouses
8.23 p.m.
Lord Willoughby de Broke Lord Willoughby de Broke rose to ask Her Majesty's Government how they expect to implement the recommendations made by the Maclean report concerning the costs of inspection and regulation of slaughterhouses.
The noble Lord said: My Lords, I begin by expressing some sympathy for the Minister who on top of his health portfolio has been landed with responsibility for the Food Standards Agency. He has, therefore, to immerse himself in the history of the slaughterhouse regulations and is responsible for hospitals and slaughterhouses. I only hope that he does not get his files muddled!
I express my thanks to the Government Whips' Office for allowing me to have this debate today. It comes at an opportune moment. The slaughterhouse industry and the Food Standards Agency are in the middle of a consultation period. I hope that this short debate will inform the Government of the industry's concerns about the Food Standards Agency's proposals while there is still time to make the necessary changes before the deadline of 1st April.
This is not a party political issue: it is about getting the matter right. I have no right of reply so I thank all noble Lords who will speak. It is good of them to have stayed this long. I also give the Government credit for having listened to the arguments on this issue, although somewhat late in the day. Powerful arguments have been made over the past two years to
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consider afresh the way in which the slaughterhouse industry has been regulated. I do not propose to revisit the history of the introduction of the Meat. Hygiene Service, and so on. Noble Lords who will speak are well seized of those points. I turn to the main issues that we should address.
Last summer the Government commissioned the Maclean taskforce under the chairmanship of Colin Maclean. The key point we must remember is that Maclean (if I may use that shorthand) recommended that slaughterhouses should be charged the lower of either the standard charge or their actual inspection costs where those would be lower. Maclean recommended levying the lowest of all the charges. We must bear that in mind.
Maclean reported in June. In November of last year the Government agreed that they would accept in full the recommendations of the Maclean report. I recognize—as I hope that the Government do—that they have taken on a substantial financial commitment. The industry should be duly thankful that the Government have taken the right decision. It will be a great relief to all those whose lives and jobs would have been affected adversely by possible regulation of the slaughterhouse industry had the Government not taken those arguments on board.
Having said that, it seems somewhat churlish to look this apparent gift horse in the mouth. However, we have serious reservations about the draft proposals of the Food Standards Agency. If they are implemented as proposed in the draft regulations, the measures will have the opposite effect to what the Government intended—that is, to reduce the charges for inspection of small and medium-sized slaughterhouses. The Food Standards Agency seeks powers to impose penal hourly charges on top of the standard charge. That would take us back to the unfortunate situation which threatened the survival of small and medium-sized slaughterhouses before the Government's decision to introduce and underwrite standard charges.
In the draft statutory instrument at Annex A of the consultation document, the Minister will see that sub-paragraph (9) contains the draft of a proposed new paragraph 8A. As it stands, new paragraph 8A is a disaster. Its effect in principle is to allow the Food Standards Agency, or the Meat Hygiene Service which will operate on behalf of the Food Standards Agency, to charge what it likes. For example, heading (a) refers to,
"higher inspection costs due to a particular lack of uniformity in the animals for slaughter".
That could mean that any animal coming into a small slaughterhouse would be subject to new paragraph 8A. The Meat Hygiene Service operatives could decide that it was a non-standard animal: that it was not part of a group of 20 animals of the same size, shape, breed or colour; and that therefore they would charge more for it. That would nullify the benefits of the proposals which the Government have agreed to in accepting the Maclean report.
I shall not refer to each heading but new paragraph 8A is completely unacceptable. It would penalise older plants—that comes from 8A(2)(b). Are we going to allow only new plants to operate? It would penalize remote plants—that is a quote from the draft statutory instrument. It would penalise plants operating outside the hours of 6.30 a.m. to 6 p.m.
Above all, 8A(2)(h) is very damaging. It reads:
"any other reason like those mentioned in paragraphs (a) to (g) above that causes the Agency increased costs".
That is a dangerous catch-all provision, because it would allow the Meat Hygiene Service inspectors to go down to the pub after inspecting a plant, decide that they needed to charge a little more and work out how to do it. That provision gives them the freedom to do whatever they like whenever they like.
I think that the industry accepts—it certainly should accept—that the Meat Hygiene Service should be protected from loss of revenue due to abuse of the system by rogue operators. That is only reasonable, but Maclean provided for that. However, the draft regulation would impose standard charges plus costs. That is not what Maclean recommended. It is also not the recommendation of the committee that I had the honour to chair, commissioned by Honest Food, because it would give the Meat Hygiene Service the unfettered power to charge whatever it wished for its services for whatever reason. Operators would have to accept the subjective judgment of Meat Hygiene Service inspectors.
That proposed power would be compounded by the fact that there is no appeal mechanism. I have a letter from Sir John Krebs, the chairman of the Food Standards Agency, which says that there should be a proper appeal mechanism and that he is going to put one in place. There is no mention of that in the draft regulations.
It is self-evident that any system that has the power that is vested in the Food Standards Agency—the power to deprive people of their livelihoods if they close slaughterhouses—should have an effective and speedy appeals mechanism. I ask the Minister to understand that there are serious concerns about that aspect of the draft statutory instrument.
Time is short. The consultation period ends next Wednesday. The provisions have to be implemented by 1st April this year. The Food Standards Agency is aware of the strong concerns that have been expressed by the industry. It may be sympathetic to them, but I am not sure. I hope that the Minister will reassure the House and the industry that those concerns will be met and a satisfactory solution will be found. We are so close to getting it right after a very long battle that it would be a disaster if we managed to snatch defeat from the jaws of victory at this very late stage.
8.33 p.m.
Baroness Byford: My Lords, it gives me great pleasure to follow my noble friend. I thank him for bringing this crucial issue to the attention of the
1346
House. He has asked the Government how they expect to implement the recommendations in the Maclean report.
The opening paragraph of that excellent report encapsulates the essence of the European dilemma in three sentences of executive summary. Maclean finds that the present meat inspection regime needs to be replaced and that the Government, vets and meat industry experts agree, along with several member states and a number of senior Commission officials. There is clearly agreement on the issue. He concludes that everyone concerned recognises,
"that it will take some years to effect the required changes in EU legislation".
The meat inspection regime has been the subject of many and varied debates, discussions and meetings in Westminster and Whitehall. It is of great interest to those involved in meat production. The total man hours spend on that important topic surely deserve greater attention than,
"some years to effect the required changes".
That is why I welcome the debate.
Back in December 1999, the meat industry red tape working group said:
"Meat hygiene service charges are punitive and rising out of control"
The Meat and Livestock Commission report concluded that charges in Great Britain were significantly—I emphasise that word—higher than in most other member states. It is clear from recent events over the importing of German beef that some inspection regimes are not efficient enough. The Maclean report notes that, in at least some member states, meat inspection charges are not collected or are otherwise subsidised, possibly contrary to EU rules. I in no way suggest that we should break those rules, but I do not believe that we should impose even greater costs and increases on our hard-pressed abattoirs and producers.
The Government finally recognised that there is a problem. In last November's rural White Paper, they highlighted the fact:
"We are providing new, additional aid worth £8.7 million in 2001–02 in respect of small and medium-sized abattoirs".
My noble friend referred to that earlier and I, too, welcome it.
If the Government realise that there is a problem, why have they brought forward a draft statutory instrument that, in part, makes no sense? It introduces an imperative with the word, "shall". Paragraph 8A is incomprehensible, muddled and—although I am no authority—appalling English. What does higher costs due to "special travelling times" mean? What does,
"longer waiting and otherwise non-productive periods"
mean? Longer than what?
Finally there is the catch-all of paragraph 8A(2)(h), which says:
"any other reason like those mentioned in paragraphs (a) to (g) above that causes the Agency increased costs".

1347
Why have (a) to (g) when there is the pièce de resistance of (h)? I do not mean that flippantly. The Government will have to reconsider 8A, which is a nightmare.
The draft statutory instrument has taken the Government five months since the publication of the Maclean report, which itself was produced in a mere five weeks. As others have said, the report is a model of insight, clarity and common sense. It is seven weeks until the date of implementation, so the Government have plenty of time to rewrite their awful draft and bring it before the House.
In points 10 and 11 of the report, Maclean suggests a legal way in which the Government may contribute to the cost of meat inspection to protect the industry from the loss of small and medium-sized abattoirs. The report says:
"It would be perfectly legal for the UK Government to contribute to the costs of meat inspection in order to help the industry".
I had understood that the Government had stated their support for that proposal. I was seriously concerned to learn of the FSA proposal contained in the statutory instrument. Is not that a U-turn by the Government? Will the Minister confirm that there was a meeting last month with Food Standards Agency officials, vets and members of the industry? Will he confirm their disquiet at the proposals in the draft?
The CLA briefing says:
"We arc dismayed that these may have serious financial consequences for the small and medium-sized abattoirs whose interests the Maclean inquiry and subsequent report were intended to address".
Standard charge plus additional cost was not—I repeat, not—what the Maclean report recommended. Yet, that is now proposed in the statutory instrument.
The employment of fully qualified vets to carry out tasks well suited to lesser qualified but highly trained auxiliaries is also mentioned in the Maclean report at page 13. It is a costly waste of a scarce resource. If it is not possible to have the rules amended quickly, will the Minister and the Government consider funding the difference between the charge for auxiliaries and that for vets in anticipation of any rule change?
Will the Minister also consider arranging training courses which would enable auxiliaries to gain further qualifications and be upgraded to a level which would free up some of our fully qualified vets? Indeed, I am sure that the Minister knows that one problem which we experience in this country is a shortage of vets to carry out that particular type of work. We are reliant on vets coming in from abroad.
Maclean has much to say about those costs. Indeed, a large part of the problem lies in the varied, and in some cases excessive, rates that are charged for the services of MHS personnel. Large abattoirs are charged £29.13 per vet per hour. Therefore, if we assume that such vets complete a 35-hour week with an additional average of five hours' overtime charged for travelling time, such a vet is probably worth something in the region of £1,165 per week or some £60,580 per year to the Meat Hygiene Service.
1348
Small abattoirs arc charged £40.50 per hour, but sometimes charges of up to £60 have been reported. It is harder for vets who work across a number of locations to charge for a full week. However, even if they manage to work for only 30 hours, that is worth, let us say, £1,215 per week at £40.50 per hour. If vets receive 50 per cent of that sum of £1,200 a week, they will receive an annual salary of over £31,000. However, I have been given figures which indicate that the Meat Hygiene Service is employing foreign vets at a much lower cost. Perhaps the Minister can supply the payment range used. Can he also confirm the qualifications of some of those foreign vets?
If we assume that 20 per cent of the £1,200 per week is spent on vet-related costs, national insurance, pension, travel costs, and so on, that still leaves some £360 per week per vet accruing to the Meat Hygiene Service. If there were some 500 vets—I suspect that there are many more—they are contributing just under £10 million to the overheads of the Meat Hygiene Service.
Surely that is a great deal of money for running the overhead element of an organisation which manufactures nothing and markets nothing. Apart from the need for vets and inspectors, surely it could be run by accountants or a small secretariat. Instead, the Maclean task force was told that the headquarters and regional offices are charged to the meat inspection service at a cost of some £5.8 million per annum.
I believe that the allocation of that charge to meat inspection should be queried. However, I want to ask the Minister the following questions. How is the £5.8 million made up? Who is employed in those places and what do they do? How much do they cost? And who, finally, controls them? Is it a case of "jobs for the boys" or does someone keep an eye on the running of the service? Great concern exists in the industry that costs are escalating.
If it is not possible to keep the present practice as a base line, it would be sensible to try. It could be varied by negotiation with all interested parties. As my noble friend said, a rapid, independent appeal service must be established to deal with small disagreements. And there should be a totally independent arbitrator to whom the more complex and difficult cases can be referred.
The Minister must surely understand that, as it stands, this draft instrument cuts right across everything that the Government have been saying—and in which they believe—about the need for farmers to diversify and about their willingness to support small rural enterprises. Indeed, it cuts across the very foundations of the rural White Paper. Perhaps I may quote from that document again. John Prescott said in his foreword:
"Our vision is of a living, working, protected and vibrant countryside",
8.44 p.m.
The Countess of Mar: My Lords, I am grateful to the noble Lord, Lord Willoughby de Broke, for asking this question this evening. I also owe him a debt of

1349
gratitude for so ably chairing the independent inquiry into Misregulation of the Meat Industry and its Consequences. His committee's inquiry was funded by the Countryside Alliance and published by Honest Food, an organisation of which I am chairman. I also declare an interest in that my husband and I rear Black Welsh Mountain sheep for meat. We farm in Worcestershire, where only one abattoir now remains.
We may have a new Food Standards Agency but we still have the same Meat Hygiene Service. Its offices may be new, but its personnel are the same. Despite all the effort that has been expended in an attempt to point to the fundamental problems that have arisen between the abattoir and cutting plant owners and managers and the official veterinary service, those responsible for drafting the Meat (Hygiene and Inspection) (Charges) (Amendment) (England) Regulations 2001 seem to be hell bent on destroying all the small and medium-sized operations.
The Meat Inspection Charges Task Force, under the chairmanship of Colin Maclean, was set up, as has been said, following the report of the Meat Industry Red Tape Working Group, chaired by Robin Pooley. Both those reports tended to focus upon the effects of supervision of abattoirs and cutting plant and the charges imposed by the Meat Hygiene Service. Almost as an aside, they reflected upon the effects that closure of small and medium-sized abattoirs would have upon meat production. Maclean stated that his group did not have time to investigate the validity of the claims that have been made to government over a considerable period of time.
When I asked the noble Lord, Lord Willoughby de Broke, to chair the Honest Food inquiry, his brief was to look at the effects of regulation upon the whole of the specialist meat production spectrum, from the birth of the animal on the farm to the arrival of some part of its anatomy on the plate. It is interesting to note that, even with that wide brief, it became clear that the survival of the whole of this sector depended upon the existence of small and medium-sized abattoirs sited within reasonable travelling distance.
I believe that it is worth quoting from the summary of their report:
"However, the most serious problem that is facing the entire meat industry is the inspection of slaughtering and slaughterhouses. The existing system of inspection, involving as it does the constant presence of veterinarians and meat inspectors, has placed an unbearable burden on the slaughtering industry, particularly on the small and medium sized cutting plants. The problem has been compounded by the charging structure, which is based on time rather than number of animals slaughtered. Many plants have already closed down, creating difficulties for smaller and organic farmers, butchers and consumers, multiplying environmental and animal welfare problems. Full veterinary coverage with attendant charges is due to be imposed on 1 April 2001. This will have disastrous consequences for the slaughtering industry and for the entire meat and livestock sector as well as the rural economy in general with detrimental effects on the environment, animal welfare and consumer choice in both town and country".
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When asked about the Better Regulation Task Force recommendations during his evidence to the Honest Food inquiry on 20th June 2000, Mr Geoffrey Podger, chief executive of the Food Standards Agency, told the committee:
"I think it equally fair to say that we"—
that is, the Food Standards Agency—
"are concerned as a public body to meet our obligations to those who are affected by our regulatory regime. Part of that is, without doubt, both providing proper times for consultation, and also providing proper transitional periods for implementation".
The Maclean report was published in June 2000. On 15th January 2001 the stakeholders were presented with a draft statutory instrument for consultation. Responses are required by 14th February 2001 in order that the statutory instrument may be laid in Parliament on 12th March. That is in clear breach of the first assurance given by Mr Podger on 20th June. There can be no excuse for allowing only 23 days for consultation when the Meat Hygiene Service has had more than six months to think about the form of the draft.
I understand that the statutory instrument is to be implemented on 2nd April 2001. I should be grateful if the Minister would tell me whether the revised charges are to be levied from that date. If they are, the second of Mr Podger's assurances is breached. The statutory instrument allows for variations in charges between plants. There must also be agreement on the operational programme for operational times and throughput, as proposed in the Maclean report. If the implementation date is 2nd April, what time is there for agreement to be reached, particularly if there is a dispute between parties? Where, too, is the independent arbitration mechanism, which was recommended in the Maclean report?
It is my understanding that Her Majesty's Government accepted all of Maclean's recommendations. The intention was to change the culture of confrontation and dispute that had developed between the Meat Hygiene Service and the industry to one of co-operation and negotiation. Part of that change will be brought about by the recommendation that charges for inspection would be tailored to individual premises within the parameters laid down by EU directives. Pooley, Maclean, Honest Food and noble Lords, including the noble Baroness, Lady Byford, and myself, have all stressedthe need for and the importance of an independent appeals machinery that would be brought in to resolve disputes rapidly and efficiently. During the passage of the Food Standards Agency Bill, much of the discussion between the noble Baronesses, Lady Byford and Lady Hayman, and myself involved that topic.
The noble Lord, Lord Willoughby de Broke, has already referred to the letter of 4th January 2001 that Sir John Krebs wrote to Dr Szamuely. In that letter, Sir John Krebs said,
"an independent element to the internal M HS appeals mechanism is currently being developed. This will allow anyone who remains dissatisfied with an MHS decision after it has been reviewed internally to appeal and have the case considered independently … Meanwhile, the Agency is arranging for the independent consideration of cases on an ad hoc basis".

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That is not satisfactory. I need only whisper the words, "Mead Webber", for the Minister to understand that the ham-fisted and long-winded way in which that "independent appeal" has been handled is a prime example of justice denied. What difficulty is the FSA having in appointing a panel, as recommended in the Maclean report? The matter is very simple. There are appeals and tribunals all over the country on various subjects, but the MHS is having a problem appointing a panel that is separate from its organisation.
The noble Lord, Lord Willoughby de Broke, and the noble Baroness, Lady Byford, have expressed their concerns about the drafting of the proposed statutory instrument and in particular about the drafting of paragraph 8A(2). After all the discussions that we have had in your Lordships' House about the undesirability of the gold-plating of EU legislation by UK officials, I am saddened that once again we have another example of that. Will they never learn? We jokingly say that their lives would be so much easier if there were no small farms, no rare breeds and no farm shops or farmers markets, just a few monocultural large farms; a handful of identical abattoirs that handled uniformly shaped sheep, cattle and pigs; and supermarkets. The latest statutory instrument, unless it is extensively revised, would bring the joke far too close to reality.
The Government accepted the Maclean report in full. I ask the Minister to ensure that the recommendations are implemented in full without any carefully concealed ifs and buts or shalls instead of mays.
The industry wants an end to confrontation and is willing to co-operate if matters are dealt with fairly. Too many of the paragraph 8 proposals rely upon subjective judgments. A speedy arbitration system must be brought in at the same time if the new charges are to be implemented effectively.
8.53 p.m.
The Earl of Selborne: My Lords, I, too, start by thanking my noble friend Lord Willoughby de Broke for this timely Question and for his introduction to this short debate.
The noble Lord and both noble Baronesses who have spoken so far this evening dealt adequately with the deficiencies of the draft statutory instrument. I need not say more about that. My noble friend's Question asks the Government,
"how they expect to implement the recommendations made by the Maclean Report".
I shall widen our debate. The Maclean report recommended that the Government should make all haste in getting in place a new risk-based meat inspection regime which would allow more delegation of official controls to auxiliaries. We know very well that that cannot be done in a hurry, however much haste is put into the exercise. That is because, as the Government—or the FSA—have found to their cost, the two directives to which we are required to conform, one of which relates to fresh meat and the other to poultry meat, are specific about the requirement for a veterinary presence. That is why the matter has
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become a point of contention. The Government have been helpful and have sought to try to find sensible, pragmatic solutions. However, they were not acceptable to the regulatory body and we now face this sorry saga of having to implement two directives that appear to be inappropriate for the United Kingdom.
That is the problem. The directives, which date back to 1964 and 1971 respectively, may well be appropriate for the Continent of Europe, where the veterinary profession has a different tradition: veterinarians may well be the most appropriate people to do meat inspection. In our culture, which has worked extremely well—at least, it has until recently—meat inspectors are well qualified to inspect meat and could look adequately at the animal on the hoof, when that was required. That is not to suggest that a veterinarian was not always necessary; he certainly would be on occasion. Common sense suggested that if one h ad a specialist working in an abattoir, it would be perfectly possible to give responsibilities—whether they be veterinary or involve meat inspection—to one person, who might be an auxiliary or a veterinarian. The Government were trying to get agreement on precisely that point, but the two directives made that impossible.
I should perhaps declare an interest or an involvement at this point, as a trustee of the Royal College of Veterinary Surgeons Trust. Maclean reports in paragraph 40 that the Royal College of Veterinary Surgeons felt that some of the responsibilities that are presently prescribed, to qualified veterinarians could and should be delegated to meat inspectors. I am sure that that is very sensible advice.
Is it possible in the short or medium term to get the directives altered? I have the honour to chair Sub-Committee D of the European Union Committee. That sub-committee contemplated approaching that matter; perhaps we still should. When the excellent informal report by Honest Food, which is chaired by my noble friend, was produced, we felt that it had posed the very questions that we should have posed. We therefore await the response to that report. The Minister's response at Smithfield was encouraging. However, we have already heard that the draft statutory instrument does not deliver all that we had hoped for and expected.
I return to the overwhelming need not to accept the situation, although I fear that Maclean almost seems to do so. We are told that we have to put up with these two inadequate and inappropriate statutory instruments, which confuse a situation that was previously working reasonably well, at least so far as the United Kingdom was concerned. We are told to accept that we have to put more veterinarians in the field than is necessary, that we have to carry out a certain amount of double accounting and that senior meat inspectors, meat inspectors and veterinarians should all follow the same product through the abattoir. That is quite unnecessary and inappropriate.
That prompts us to ask what the purpose of the directives is. It is important that there are directives; there were regulations in the United Kingdom

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previously. The directives exist, first and foremost, to protect the consumer. One therefore has to ask whether the directives serve the interests of consumers. Clearly they do not. They add to costs, reduce choice and consumers have made it clear that they do not think that the directives are in their interests.
Do the directives contribute to animal welfare? The opposite is the case. As one closes down the small approachable abattoirs, one becomes involved with animal welfare issues, which we all seek to avoid.
Third and last in the hierarchy of interests that one is seeking to protect through the directive come the interests of the trade: the producers and the meat industry. It is right that they should be regulated and that, whether they like it or not, there should be appropriate regulation. Clearly, the regulations are not appropriate for the producer—it is driving them out of business—or for the meat industry.
That appears to involve a triple whammy. Consumers, animal welfare interests and the industry recognise that we have to conform to a directive that the Government have, with honesty, said is not appropriate for us and is not in our tradition of separating veterinarians and meat inspectors. So I would say very firmly that I hope the Minister will take the advice of the Maclean report and make all haste in putting in place a new risk-based meat inspection regime. In other words, we need to get the directives changed. It does not take very long to change a directive if the will exists to do that. I know that some member states will not see the need for change and will fear that what is proposed is a dilution.
However, we must then ask what assurances can be given that the meat inspectors, who were clearly doing an excellent job before, will continue to do that excellent job if they are allowed to return to a regime which was in existence before. I believe that we should have no difficulty whatever in doing that.
It is really a difference in culture. I suspect that in some of the member states, the concept of veterinarian practice encompasses something which the Royal College of Veterinary Surgeons would not consider to be part of veterinary practice, but something which would come under the meat inspectors' regime.
So there is a misunderstanding which has led to this sorry story. We must recognise that we are trying to make the system work. The directives are not helping and they need changing. There is no earthly need to sit back and say, "Well, this is the law of the land and we must conform with it". It is for government to change directives when they are not helping anyone and to persuade member states that it is in their interests as well as ours to change them. Therefore, I hope that the Minister will give us every assurance that the Government will be making haste to get these directives changed.
9.1 p.m.
The Duke of Montrose: My Lords, I am most grateful to my noble friend Lord Willoughby de Broke for gaining this debate at this particular time. I am also
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very taken with the remarks made by my noble friend Lord Selborne in relation to trying to get some of the regulations altered. My remarks are drawn up in the light of the regulations as they are at present.
In discussing the costs of inspection and regulation of slaughterhouses, I must declare a financial interest. As a livestock producer, I know that the one unwritten rule of the game is that if any charges are imposed on the processing sector, they are immediately passed on and deducted from the price given to the primary producer. Those in my position certainly hope that if the Government succeed in reducing those charges, the reverse will happen.
It is not long since the farmers in this country told themselves that they had the most efficient agricultural and livestock production systems in Europe. That has been rather cruelly dispelled as we have become more and more aware of the quickening pace and quantity of production across the rest of the Continent. We have changed our breeds, refined their diets and looked high and low for more efficient means of production. But any benefit that we might have had as a result of all that effort has been stymied by the advent of BSE with its hugely increased slaughter inspection charges and the loss of many of our markets for exports. But now that there is an opportunity to resume more exports within Europe, another hurdle is the weakness of the euro, for however long that is likely to last.
Those economic disasters have been felt equally by the slaughtering and processing industry and your Lordships will be aware that whereas in 1995, there were 495 abattoirs in Great Britain, at present I believe there are only 387. Of those which have closed, 71 were killing up to 5,000 units per annum.
It appears, through the measure that we are discussing today, that the Government are addressing the first of those hurdles which I mentioned. I should add that due to the regulations made for devolution, there is a requirement for separate legal processes in Scotland and Wales to achieve the same ends. I have received a copy of the consultation package from the Scottish division of the Food Standards Agency and, sensibly enough, it exactly mirrors the statutory instrument that is before us. Perhaps that is another dimension to joined-up government that I know the Government are very keen to achieve. I expect that if any modifications are found to be needed in this piece of legislation, that will carry through also to the Scottish wording.
Representatives of the Scottish Association of Meat Wholesalers and the Scottish Federation of Meat Traders Associations attended the same meeting held by the Food Standards Agency here in London that was mentioned by the noble Countess, Lady Mar, as those representing the industry in England. They have voiced to me similar concerns to those expressed at that meeting. Their official response is to be drawn up tomorrow and will no doubt be sent to the Scottish Food Standards Agency as well as to London.
I understand that despite the Maclean task force wishing to look at the problems of small, medium and large operators, the industry is officially categorised as

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having only two parts: full throughput plants and low throughput plants. The division is made at the level of a throughput calculated as 1,000 units per annum, which is approximately 20 cattle a week, or their equivalent.
From the indicative examples provided to me by the Scottish Food Standards Agency, the straightforward application of the headage basis to full throughput plants would provide a reduction of anything from 35 to 55 per cent in the current charges. That would probably work out at between £2.50 to £3.50 per unit or cattle beast.
There is also a hidden charge that will be introduced from 1st April when those plants will require an official veterinary surgeon to be present throughout the ante-mortem and post-mortem inspections. At present, if they are in the proximity of other operators, there is room for the vet to move between them as the workload allows. But the fact that they will have to be permanently there will add to the cost of the operator but will not provide any cost savings to the Government.
The extra charges imposed under Paragraph 8A, mentioned by my noble friend Lord Willoughby de Broke, could conceivably, by good management, be avoided in that size of operation. The exception, of course, would be in the case of major equipment breakdowns.
In Scotland, due to the rationalisation that has taken place, a great many of our slaughterhouses are now in that category. The major savings on offer under the Government's proposals come in their application to the low throughput plants where, again, using examples provided by the Scottish Food Standards Agency, plants with a throughput of between 100 and 300 units could have their charges reduced by anything between 60 per cent and 95 per cent, or between £5 and £33 per unit.
In Scotland, there are 12 slaughterhouses and 13 cutting plants that fall into that category, a number of them serving extremely remote communities such as Wick, Stornaway and Elgin. Those operations are particularly vital to their communities and to the welfare of the livestock in their areas, as mentioned by my noble friend Lord Selborne. They are the ones that will be particularly vulnerable to the extra charges that could be levied under the proposed paragraph 8A. Subparagraph (2)(d) will be called up to encompass extra travelling costs and possibly even overnight accommodation. There would almost certainly be a lack of uniformity in the animals for slaughter and there would certainly be some interruptions to the process for cleaning and disinfecting as they switch from killing one class of stock to another. They may not be able to afford the slickest and latest equipment, and that might be regarded as "technical inadequacies", as in subparagraph (2)(b).
That points to the need for a forum, as many noble Lords have said, where any disputes about extra charges imposed can be aired and representations made. There may not be many businesses to which that exact argument applies in England, except for some in
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the far South West. However, the reasons for requiring such a body might differ depending on the circumstances, but it will none the less be important. Can the Minister tell the House what proposals the Government have to ensure that those who encounter such difficulties can have the benefit of an outside opinion?
9.9 p.m.
Baroness Northover: My Lords, I too thank the noble Lord, Lord Willoughby de Broke, for bringing this important issue before us. Speaking on behalf of the Liberal Democrats, I share many of the noble Lord's concerns and I urge the Government to go further than it appears is the current intention.
There are three key issues: achieving high standards in public health, managing animals humanely and supporting our rural economy. First and foremost, we must ensure that we pursue the highest of standards in this part of the human food chain. The recent inquiry by the noble and learned Lord, Lord Phillips, into the BSE crisis makes it plain that any sloppiness in slaughterhouses can have serious consequences. It charted the chain of events leading to the introduction of the centralised Meat Hygiene Service, pointing out that standards of hygiene in British slaughterhouses provided the case for such action. In 1992 the inquiry quoted Selwyn Gummer reporting to the House of Commons Agriculture Committee in the following terms:
"Slaughter hall floor heavily soiled with blood, gut contents and other debris—no attempt to clean up between carcasses",
and so on.
The inquiry pointed out the need for high standards as shown by the fact that one half of a gram of BSE-infected brain had succeeded in transmitting BSE to a sheep. Carelessness in implementing regulations could have far-reaching consequences. We should never lose sight of the reason for inspection. However, the need for high standards does not mean that the type of inspection, expensive and intensive though it may be, is necessarily of the right kind, which was a point highlighted in the Phillips report and in this debate. Clearly, more needs to be done to ensure that inspection is targeted at real risks and that it does not simply duplicate work already carried out. Of course, the Government are covering the costs of additional inspection resulting from the BSE crisis, but in other areas of inspection they are not picking up the tab and yet that inspection is there largely for public health reasons.
I turn to the issue at the heart of the debate: the demise of the small and medium-sized abattoirs, especially in rural areas. The overheads of small abattoirs are higher than they are for larger abattoirs. As we have heard, the costs of inspection play a large part in this. As the Maclean report makes clear:
"For many small and medium sized businesses, the cost of the required additional veterinary supervision will be unsustainable and many will be forced to close. This will be had enough in itself, but when even the FSA and the veterinary profession admits that 100% veterinary supervision is not necessary for the protection of public health, the forced closure of such businesses becomes nothing short of scandalous".

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Does that matter? Yes, it does. If small abattoirs continue to go out of business there will be serious consequences.
I now deal with animal welfare. Animals become agitated if transported for long distances. Quite rightly, in this country we pride ourselves on our humane approach to animal husbandry. We should take such concerns seriously.
We also know how costly and difficult it is for farmers to transport their animals long distances to large slaughterhouses. We must take that seriously, especially given the parlous state of much farming today, particularly in upland areas. We should not add to farmers' costs and problems for no good reason.
The Maclean report makes it clear that small abattoirs provide an essential service in remote areas. They service a substantial proportion of the independent retail shop trade, where they can fulfil the growing demand for traceability and guaranteed provenance, including organic produce. They undertake most of the slaughtering for the ethnic minority community trade and they provide a casualty slaughter service. These abattoirs are particularly vital to small, family farmers and to local markets.
As we have heard, the current system of charging an hourly rate for inspection means that in small plants, where few animals are slaughtered in one day, the cost to the plant per animal slaughtered is much higher relative to that in larger plants, where there is a constant, high throughput. We have long advocated moving to a headage system. We welcome Maclean's proposal that the additional costs of inspection should be borne by the public purse. Services that are accessible to farmers, thus promoting both animal welfare and consumer choice, are public benefits.
As we have heard, the Government's proposals contain serious flaws which surely must be addressed. Recognising the importance of high standards of inspection, the Government should also accept that small abattoirs are an essential link between farm and marketplace. Without support, many of those facilities will be lost. The Government therefore need to go further in meeting the conclusions of the Maclean report.
9.15 p.m.
Earl Howe: My Lords, I, too, am grateful to my noble friend Lord Willoughby de Broke for introducing this important topic for debate. Like my noble friend the Duke of Montrose, I have to declare an interest as a dairy farmer. This debate is not simply about the future of small, rural abattoirs. It is, by extension, also about the health of the rural economy, consumer protection, consumer choice and animal welfare. In that sense, it is a very wide-ranging topic, which deserves more than a short debate to do it justice.
The past ten years or so have seen a marked contraction in the number of abattoirs in the UK. To say that this has come about as a result of both regulation and market forces is a broad statement of
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fact, but it is a statement that glosses over a complex set of changes in the market for British meat. On the one hand, there has been a drive for ever-greater efficiency, led to a large extent by British supermarkets, which has resulted in the establishment of larger plants and the closure of many smaller ones. On the other hand, we have seen a growth in consumer demand for more specialist meat products, which small and medium-sized abattoirs are particularly well suited to supply.
Over-arching all this, as the noble Baroness, Lady Northover, so well explained, has been an acceptance of the need to ensure the highest standards of meat hygiene. That, as we all know, has come about at a cost. I have heard it said by a number of respected commentators that the sector is currently walking a tightrope in a way it perhaps has never done. The steep rise in inspection costs, particularly over the past two years, has placed the viability of hundreds of businesses in jeopardy. Many have found these costs unsustainable and have ceased trading. The vague but long held suspicion that the costs borne by British abattoirs are at the higher end of the spectrum among EU member states has been borne out by recent evidence. By virtue of the current charging structures, it is our smaller abattoirs that find themselves most disadvantaged.
Nevertheless, the tightrope is still being walked. The advent of higher inspection charges, unwelcome though they have been to the industry, has not yet led to the sort of catastrophic contraction in the sector that many people initially feared. There have certainly been some regrettable losses and closures, but the small and medium-sized abattoir sector is still very significant. It is estimated that it accounts for some 50 per cent of cattle, 60 per cent of sheep and 25 per cent of pigs slaughtered in Great Britain.
The importance of the sector is not simply defined in terms of volumes. The Maclean report praises it for the service that it provides to farmers, to the trade and to—consumers. In that regard, I very much echo everything that was said by the noble Baroness, Lady Northover. Smaller slaughterhouses are an essential facility in remote rural areas. Farmers and their animals benefit from having shorter distances to travel—not least when casualty animals have to be dealt with—but smaller units also serve local markets. They serve most of the independent retail trade, where there is a demand for traceability and guaranteed provenance. In their ability to offer non-standardised and flexible production, they also supply the smaller end of the catering trade, as well as organic producers and many ethnic communities. That means that the continued survival of small and medium-sized abattoirs is essential if the market for home-produced meat, as we know it today, is not to change out of all recognition.
The ruling by the European Commission that the UK was under-implementing the various meat hygiene directives led to a decision by the Government to increase the levels of veterinary supervision to 100 per cent in all but the very smallest slaughterhouse. Even in the smallest premises there will still be a requirement

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for compulsory ante-mortem inspection by the OVS. Colin Maclean's task force recognised that the added costs of those changes, if borne by the industry, would result in,
"the decimation of the sector".
In net terms those additional costs would be in the region of £11 million in 2001–02 which, for certain plants, would involve a near-doubling of inspection charges.
It is greatly to the Government's credit that they have accepted the recommendation of the Maclean task force that they should provide,
"some degree of financial support for the industry".
The additional money on offer for the coming financial year to assist small and medium-size abattoirs is some £8.7 million. It is also welcome that the revised basis of charging set out by the task force has been adopted. With effect from April, abattoirs and cutting plants will be charged the lower of either the standard throughput charges laid down in the EU directive or the actual inspection costs, subject to a specified minimum. For many smaller units, effectively it means that in future they will be charged on a headage basis, not on the basis of time cost. That is a very positive development.
There remain, however, as my noble friend Lord Willoughby de Broke so rightly emphasised, a number of uncertainties. The draft statutory instrument sets out a whole raft of contingencies which, should any of them occur, could trigger the imposition of additional charges over and above the standard charge. I have read new paragraph 8A very carefully. I can quite see that the Meat Hygiene Service needs to be protected against the possibility that an abattoir might, for example, take all day to kill only a few animals and that under the proposed charging tariff such costs would not be otherwise recoverable, but the wording of the draft instrument is far from clear. My noble friend Lady Byford rightly pointed out that terms such as "longer" and "frequent" are unexplained and unqualified. There is also the catch-all provision that refers to,
"any other reason like those mentioned in paragraphs (a) to (g)".
What exactly does that mean, and who is to interpret that provision?
There are those of perhaps an over-suspicious turn of mind who interpret the draft regulations as being designed more to ensure that the MHS is able to claw back its costs than to help the owners of small abattoirs. This evening we need reassurance from the Minister that the effect of the regulations will not be, as some now fear, to enable the Meat Hygiene Service to give with one hand and take away with the other more or less at will. The effect of that would be a de facto return to time-based charging and in turn, one assumes, the decimation of the sector of which Maclean warned.
There are also some practical worries. Given that all businesses, no matter how small, must comply with legislation that governs holiday entitlement and so forth, many small plants are bound to find themselves
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operating for at least part of the year at less than optimum efficiency, for example when one of the team of slaughtermen is on leave. As the regulations are drafted, how can such unavoidable eventualities fail to give rise to additional charges?
The next question is how a dispute arising from this kind of situation, or the interpretation of the regulations, is to be resolved. The Government have rejected the recommendation of the task force that there should be a system of independent arbitration in situations where the MHS and plant owners are unable to agree on an operational programme. I hope that the Minister will be able to elaborate on the Government's reasons for this. The noble Lord will be aware that the decision has caused considerable disquiet.
Finally, following my noble friend Lord Selborne, perhaps I may ask the Minister to address some longer-term issues. The Maclean report recognises that, despite widespread agreement in the EU on the need to replace the current meat inspection system with something better, any root and branch changes to the EU meat hygiene directives will take some years to achieve. It would be helpful to hear from the Minister what the Government's broad objectives are in that regard. I believe that the abattoir sector is unique in the food industry in having to submit to day-to-day inspection and supervision from outside as opposed to being able to police itself. Even if it is not possible to get away from such a system entirely, do the Government believe that a more risk-based approach to meat hygiene is both desirable and achievable? If they do, what kind of regime do they envisage? Is there scope, for example, to introduce a HACCP system in abattoirs on a plant-specific basis? To what extent should the UK press for certain responsibilities currently assigned to vets to be delegated to auxiliaries, as was recommended in the Pooley report? Finally, what is likely to be the tirnescale for change?
The Government's response to the Maclean recommendations have, in large measure, been greeted with appreciation and relief by the industry. But the response still leaves worrying questions hanging in the air. The sector is still walking a tightrope. I hope the Minister will take the opportunity today to provide the industry with some strong and unequivocal reassurance.
9.26 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the noble Lord, Lord Willoughby de Broke, expressed some sympathy for me as a Health Minister in having to answer this Question, and, indeed, answering for the activities of the Food Standards Agency. Lest the House share that sympathy, I suppose I should confess that, along with my noble friend Baroness Hayman. I was responsible for taking the Food Standards Act through your Lordships' House. So in a sense I am now reaping what I sowed a year or so ago.
I am most grateful to the noble Lord for instituting the debate on the costs of inspections and regulation of slaughterhouses. He brings enormous experience and

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expertise to the debate. I read with great interest the report of the committee of inquiry which he chaired into the regulation of the meat industry on behalf of Honest Food which is chaired by the noble Countess, Lady Mar.
The report of the committee chaired by the noble Lord emphasised the pivotal role of slaughterhouses in the meat industry and the contribution they make to the rural economy. It also had important points to make about the problems of what is described as a "bureaucratic and overly prescriptive approach to regulation".
It also gave particular emphasis to the role of small and medium-sized slaughterhouses and saw them as having critical importance to the structure of the meat and livestock industry because of the flexibility and geographical spread of those operations. In turn, those were perceived to be crucial to farming, particularly small-scale specialised organic or mixed farming; to the survival of small businesses, such as farm shops and butchers; to consumer choice; to animal welfare; to the rural economy; and to the environment. I say to the noble Lord and other noble Lords that that view is very much shared by the Government.
The Government certainly attach very great importance to the future of slaughterhouses—large, medium and small. They play a vital role, not only in ensuring consumer choice in relation to the meat that customers buy, but also in preserving the fabric of the rural economy.
The Government clearly have recognised the difficulties faced by the meat industry as a result of increased veterinary supervision levels and the associated costs. That is why we have put in place a number of measures to help small and medium-sized abattoirs, including the freezing of hourly rates for Meat Hygiene Service inspectors in 1999/2000, which was worth around £7 million to the industry. In the current financial year the increase has been restricted to 2.2 per cent, in line with the rate of inflation.
The Pooley group, which we set up to look at the burden of cost and regulation that had steadily been allowed to overshadow the industry, made many important recommendations to the Government in December 1999. One of the recommendations was that a task force be set up to look at the issue of meat inspection charges. The Government accepted that recommendation and set up the Maclean group. As noble Lords have intimated, the main recommendation of the group was that the system of charging based on actual costs should be replaced by one based on standard (headage) charges. The Maclean recommendations were not just about a move to a headage system of inspection charges. I believe they were very much a balanced and considered set of recommendations about how we could do this while respecting European law, allowing the industry the opportunity to trade freely and enabling the Meat Hygiene Service to manage its operations efficiently and cost effectively.
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That recommendation came with a substantial price tag of around £20 million. It also came with a remarkable consensus of support across all sectors of the industry as well as environmental and consumer groups. The Government have found that resource and announced their intention to implement the recommendations of the Maclean group. That is why the agency is consulting publicly on the proposals related to those recommendations which will lead to a substantial reduction in the level of meat inspection charges paid by the industry. Although the smaller plants will benefit the most, no plant will be worse off than before.
Before I turn to the specific questions relating to the issue of charges and arbitration, I respond to the points raised by the noble Baroness, Lady Byford, and the noble Earls, Lord Selborne and Lord Howe, about the philosophy that is behind the regulatory system. I have no hesitation in saying that the Government recognise that the current meat inspection is overly prescriptive, bureaucratic and is in need of a radical overhaul. The Government also accept that it should be replaced by a risk-based system of checks, as recommended by the Pooley group and the independent committee of inquiry headed by the noble Lord, Lord Willoughby de Broke.
On that basis, the Government have welcomed the proposals from the European Commission issued last year to consolidate and simplify food hygiene legislation, as well as moves to modernise meat inspection practices and meat hygiene legislation. The current rules with regard to red meat are over 35 years old—a point made by the noble Earl, Lord Selborne.
These proposals provide an opportunity for us to establish a consistent, effective and risk-based system for ensuring food production that is proportionate to the risk to public health. Protection of public health is of paramount concern and will underpin our response to the proposals.
In answer to the noble Earl, Lord Howe, the Government believe—and I believe—that responsibility for producing safe food, including meat, should rest unambiguously with the operators and should be based on HACCP principles, while independent scrutiny should provide the necessary assurances that operators' controls are appropriate and effective.
Noble Lords are impatient and see the need for haste. We all understand the process of changing EU legislation and introducing a new system of controls is likely to take some time to achieve. I accept the challenge from noble Lords that the United Kingdom needs to be vigorous in pursuing these issues. I can give them that assurance.
I turn to the issue of additional charges. The Maclean report recognised the potential for some to abuse a new headage-based charge system. The report recognised at paragraph 63 that the Meat Hygiene Service must be able to maintain or improve its current operating efficiencies. Because of that it recommended that the FSA or the Meat Hygiene Service must have powers to prevent meat plants abusing a charging

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system based on standard charges. That said, the report also said that the FSA or the MHS should not introduce control mechanisms that would restrict business opportunities or opportunities to trade.
To that end the report recommended that a system be introduced whereby meat plants and the Meat Hygiene Service agreed on an operational programme, with any disagreements being referred to independent arbitration. The report specifically recommended that where plants failed to stick to their agreements the Meat Hygiene Service should be able to recover any additional hygiene inspection costs arising as a result.
In the consultation process, the Food Standards Agency did, as recommended by Maclean, include proposals for additional charges to deal with the kind of abuse that his group foresaw. But, as noble Lords have pointed out, the proposals did not follow the Maclean recommendation of agreed operational programmes backed up by independent arbitration. That was because that was seen as likely to take some time to implement and might possibly require separate legislation. The Food Standards Agency, conscious of the need to get the new charging systems in place as quickly as possible and by the beginning of April this year at the latest, looked at alternative mechanisms for recovering the additional inspection costs.
A number of noble Lords asked specifically about the draft regulations, particularly Regulation 8A. I understand that those proposals were designed to mirror the provisions in the EU charges directive. There were two consequences of that. First, there was a catch-all provision in the proposed Regulation 8A(2)(h) which meant that the Meat Hygiene Service could recover almost any increased cost from a meat plant. I have listened carefully to noble Lords who haw asked the MHS to spell out the implications of the provision. I am also very much aware that many in the industry—perhaps all in the industry—think that that is draconian and gives the Meat Hygiene Service too much power.
The second consequence of the need for speed was that there was no mention of independent arbitration in the agency's proposals. I know that many in the industry are concerned about that too, particularly as the Maclean group specifically mentioned the issue of arbitration. The position of the Food Standards Agency is that these proposals, as they lie on the table, reflect a government commitment neither to over-implement nor under-implement our EU obligations. They also reflect a desire on the agency's part to avoid the necessity of introducing a dispute resolution procedure that potentially could be cumbersome, bureaucratic and costly to operate.
I should like to make a number of points and respond also to the issues raised in the debate. I want to assure noble Lords that this is not a back-door way to nullify the proposals to change the charges proposed in the Maclean report. The noble Baroness, Lady Byford, raised the issue of "shall" as opposed to "may" in regard to Regulation 8A(2). I am becoming a connoisseur of "may/shall" debates, but I find myself in the unusual position of having to defend the use of
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the word "shall" when noble Lords opposite would no doubt propose the use of the word "may". I am sure that that will be one of the issues that will be carefully considered in the consultation process.
I clearly accept that there has to be a "felt fair" system. It is not the intention for either the agency or the Meat Hygiene Service to have unfettered power in this area. I am also clear that there has to be a proper appeals system. The Food Standards Agency intends to introduce an independent appeals mechanism for the Meat Hygiene Service. That will be consulted on shortly and will be a separate exercise from the current consultation on charges, although once implemented it might be possible to use it for complaints regarding inspection charges. In a sense, however, that will need to be discussed as part of the response to the consultation process.
Noble Lords will appreciate that we are still in the middle of the consultation process. For that reason, some points have been raised to which f cannot respond. This is a real consultation exercise and it is our intention to listen carefully to what is said and for a genuine effort to be made to take on board all the points raised and concerns expressed. I know that the agency is committed to doing that. The Government will wish to ensure that that is what happens.
The noble Baroness, Lady Byford, referred to a meeting with key industry stakeholders. That meeting did take place. I can confirm to her that the industry made its views quite clear on the issues of charges and independent arbitration. I do not believe that the agency could be in any doubt of the views expressed by the industry on those matters.
The consultation exercise will not have run its course until 14th February. No doubt more comments will yet be received. However, I can assure the House that the agency is considering carefully those concerns and is putting together alternative options to present to the Government in due course. Furthermore, I can assure noble Lords that the comments made in the course of our debate tonight will be fully played into the consultation process.
Time is moving on, but I should like to respond to some of the points that have been put to me. Perhaps I may respond to the noble Countess, Lady Mar, by saying that as far as the Mead Webber investigation is concerned, I share her disappointment that that investigation is taking so long to complete. I understand that the Food Standards Agency and the chairman of the investigation panel are pressing for the need to make faster progress. I should like also to comment to the noble Earl, Lord Howe, on the need for the complex set of changes which has impacted on the number of slaughterhouses. In 1979, there were 975 slaughterhouses in England. By 1997, that number had reduced to 375; by 2000, it had further reduced to 329.
We have had an important discussion. It has given me the opportunity to underline the importance of slaughterhouses and, indeed, to pay tribute to all those who work in the industry. They have a tough and challenging job to do and I for one take my hat off to the men and women working in slaughterhouses. They

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make an extremely valuable contribution to the meat industry, to the economy as a whole and, of course, to the rural economy. I also acknowledge the value of small and medium-sized slaughterhouses. The Meat Hygiene Service has no intention or wish to drive such slaughterhouses out of business. If there were any evidence of that, the Government would be extremely concerned about it. As the noble Earl, Lord Howe, pointed out, the small and medium-sized sectors of the industry make a major contribution in terms of the number of animals slaughtered. It is important to remember that.
The Maclean report recorded many views on the contribution made by small and medium-sized abattoirs. Although it did not have time to investigate the validity of those claims, it made the point that the decimation of small and medium-sized abattoirs would reduce diversity for the consumer and the efficiency of market clearance in a way that would be detrimental both to the farmer and the consumer. The Government have little argument with that statement. It is also clear that noble Lords do not. That is why we have decided to implement the Maclean report.
In concluding this debate, I wish to assure noble Lords that the current consultation is very much an open process. The Government will listen carefully to the genuine concerns that have been expressed. Ultimately, the Government wish to see a thriving and competitive slaughterhouse market in which the inspection system assures that public health is paramount—I very much agree with the comments made by the noble Baroness, Lady Northover, on that point—but which in the long term is founded on a risk-based system with a fair and sensible approach to charges. In that spirit, the Government will listen carefully to all the comments which have been made by noble Lords tonight.
Baroness Byford: My Lords, although it is not my duty to do so, I thank the Minister for his response.
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Perhaps I may ask him about the timetable. He said that the consultations will finish on 14th February and that the Government will then need time to respond to them. Will this have any implications for the proposed draft statutory instrument, or will that go ahead?
Lord Hunt of Kings Heath: My Lords, it is clearly important that the new system of charges comes in as early as possible. The intention is to bring it in on 2nd April to give effect to the benefits it will bring to the industry. We intend to speed on with the consultation process, to ensure that the right decisions are reached in the way that I have suggested, and that the new system will come in on 2nd April.
The Countess of Mar: My Lords, before the Minister sits down, does he recall that, during the debate on the Food Standards Bill, over and over again we asked for a proper appeals system to be set up? We were informed that there was provision for this in the Food Safety Act 1990. Why is it so difficult for a very simple arbitration system to be introduced? One man, one contender, another contender; the man in the middle decides between the two—and what he decides is binding, as Maclean recommended. Why is it proving so difficult when it is essential in view of the stressful nature of work in the industry and the history of confrontation between the two groups of people? Why can it not be brought in at the same time as the statutory instrument?
Lord Hunt of Kings Heath: My Lords, the word "arbitration" has certain implications in law. That is why this was not produced at the same time as the statutory instrument. I hope that I have reassured noble Lords that, whatever the conclusion of the consultation process, there will be an independent system of appeal in which the industry can have confidence.
House adjourned at thirteen minutes before ten o'clock.