International Criminal Court Bill [H.L.]

HL Deb 08 February 2001 vol 621 cc1270-329

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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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.

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—

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

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

1. "(a) The warrant applies to that person:
2. "(b) The person has been arrested in accordance with the proper process; and
3. "(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 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.

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 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 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 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.

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 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.

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 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 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 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 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 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.

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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.