Lords Sitting of 8 March 2001

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

FV432 Armoured Ambulance Radio
Earl Attleeasked Her Majesty's Government:
Whether they will review their decision to withhold, on the grounds of national security, the range of the FV432 armoured ambulance's Clansman radio, given that the information concerned is printed on page 424 of Volume I of the 1986 British Defence Equipment Catalogue.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, I have reviewed the decision to withhold the information on security grounds. I still cannot answer the noble Earl's original Written Question of February 2000, which was about the maximum reliable range of the radio when mobile. It is too variable and to go into detail might, in some circumstances, compromise security. What I can tell the noble Earl is what he already knows from the British Defence Equipment Catalogue: that the typical range of the radio fitted to the FV432 armoured ambulance is 30 kilometres. The operating range will, however, vary depending on the operational environment and the type of antenna used.
Earl Attlee: My Lords, I am extremely grateful for that reply and remind the House that I have a peripheral interest in this context. I think that the Minister recognised the difficulty of her position, but her Answer shows why she is held in such high regard in your Lordships' House.
We all know about the Personal Role Radio—it has none of the Bowman-type security features and it does not need them. Can the Minister give the House an update on Bowman? I believe that she is at last making some progress in that regard, although it has taken nearly four years.
Baroness Symons of Vernham Dean: My Lords, I do not feel in any difficulty with regard to any of the Answers that I have given the noble Earl. If he is genuinely interested in these matters, I shall try to arrange for him to have a personal briefing on them.
I turn to the points that the noble Earl made about Bowman. We have received bids from three companies that have entered the competition. The companies are TRW, Thales and Computing Devices Canada. The analysis of those bids is currently being undertaken and presentations will be made to Ministers in the early summer. A decision on the preferred bidder is
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expected during the summer. I hope that whoever happens to be Minister at that point would be able to move to contract very quickly.
Lord Marlesford: My Lords, what is the estimated date by which Bowman will actually be available to the Armed Forces? Its absence is currently a very serious lack, as the Minister well knows.
Baroness Symons of Vernham Dean: My Lords, I do indeed know that. As I am sure the noble Lord will acknowledge, the project was some 75 months behind in its programme when the Government came to office. The feasibility studies originally took place in 1988 and the original in-service date was 1995.
The personal radios, which we have separated from the contract, will start to come into service towards the end of this year and their in-service date is March 2002. I would like to see an in-service date for the full Bowman contract within about two years of the contract's being signed. However, I shall be better able to update your Lordships when the in-service date is firmed up, which we will be able to do when we sign a contract. As I have already told the noble Earl, I hope that that will be before the end of this year.
Lord Haskel: My Lords, is it really helpful to our armed services for us to debate the technical specifications of their equipment in public in this manner?
Baroness Symons of Vernham Dean: My Lords, I hope that I always err on the side of caution when discussing the operational capability of any equipment that is used by our Armed Forces. I am sure that the noble Earl, Lord Attlee, would be the first to acknowledge, and that all noble Lords would agree, that it would be inappropriate to discuss in such an open forum as your Lordships' House anything that would compromise the security of our Armed Forces.

Winter Fuel Payments: Severely Disabled People under 60
3.4 p.m.
Lord Ashley of Stokeasked Her Majesty's Government:
Whether they will extend the winter fuel payment to severely disabled people under 60 years of age.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, winter fuel payments are paid to older households as they are most at risk of fuel poverty. For younger disabled people, disability benefits are available in recognition of their extra costs.
Lord Ashley of Stoke: My Lords, is my noble friend aware that the needs of severely disabled people under pensionable age are just as great as those of old age

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pensioners, because severely disabled people also suffer from cold and immobility? Every time I raise that matter with Ministers, they say that disabled people get the disability living allowance. So they do, but the fact is that pensioners who qualify also receive an allowance whose tenets are similar to those of the disability living allowance; that is, attendance allowance. The Government's justification for discriminating against younger disabled people in that way is totally without foundation. Is it not time that my noble friend changed the tune a little?
Baroness Hollis of Heigham: My Lords, we are concerned with a targeted payment for older people who are at risk of fuel poverty. By "fuel poverty", we mean people who spend more than 10 per cent of their income on heating. Of those fuel poor, 50 per cent are pensioners. Despite what my noble friend said, only 4 per cent of them are severely disabled people.
Lord Addington: My Lords, does the Minister agree that people who are so severely disabled that they are unable to move around their home to generate heat through exercise should be considered in this context? She will be aware that my party fully supports that idea.
Baroness Hollis of Heigham: My Lords, yes. However, the noble Lord will know that severely disabled people are likely to enjoy both the higher rate disability living allowance for care and the mobility component, which from April represents almost a further £94 a week, from which they can meet their heating costs. That is one reason for the existence of the DLA.
Baroness Gardner of Parkes: My Lords, will the Minister clarify the amounts concerned? I am not clear whether the winter fuel payment is simply the £20 that everyone gets or whether we are talking about a much larger payment.
Baroness Hollis of Heigham: My Lords, the winter fuel payment, as reinforced by the Chancellor in the Budget, is £200 for a household or £100 for individuals in a household; for example, a single pensioner would get £200 and a couple would get £200. A couple and an elderly brother or sister in a household would get a lump sum of £300.
Lord Morris of Manchester: My Lords, while naturally I welcome the Budget's new help for many disabled people, has my noble friend seen the very disturbing findings of a recent survey by the newspaper Disability Now, showing that severely disabled people under 60 in fuel-poor households have had to sleep downstairs, to skimp on food and to stuff windows with newspapers to keep warm during the winter months? How do we answer the 48 year-old polio survivor, who is painfully affected by poor circulation in her affected limbs, when she asks why payments cannot be based on need and not on age?
Baroness Hollis of Heigham: My Lords, fuel poverty relates to the cost of heating, income and the size of
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property. We targeted it at pensioners because we know that 25 per cent of pensioners are in the bottom 20 per cent of income, whereas only 6 per cent of severely disabled people are in that category. So pensioners are much poorer than disabled people and, compared with disabled people, are much more likely to be living in older, poorly insulated and under-repaired housing. I hope that the person in the examples that my noble friend gave would be claming the maximum disability living allowance and taking advantage of the New Home Energy Efficiency Scheme, and the grant of up to £1,000 for insulation. I also hope that that person will be taking advantage of the help available from local authorities, which have been allocated £2.5 billion to renovate homes. No severely disabled person should live in a home in which he or she has to put paper in the windows.
Lord Higgins: My Lords, is the noble Baroness aware that she is mistaken in believing that the Chancellor confirmed yesterday the position regarding winter fuel payments? The Pre-Budget Report suggests that the figure may go down from £200 to something less. Paragraph 541 in the Red Book suggests that the level of future payments will be set by the Secretary of State for Social Security later in the year. When the Chancellor makes promises of largesse that extend to 2003, why cannot we be told what the current position is?
Baroness Hollis of Heigham: My Lords, all of the statements that the Chancellor made in yesterday's Budget are confirmed in terms of the small print and the additional statements that are made by the relevant Secretaries of State. It is no different in this case.
Earl Russell: My Lords, I observe that the Minister did not challenge the assertion of the noble Lord, Lord Ashley of Stoke, who said that vulnerability to cold can result from limited mobility, which may be a consequence of age or disability. If she is to dispute the proposal in the Question, does she agree that she must either challenge that assertion or concede that the spending figure for people with disability to which she referred is the result of unmet need? That was discussed by the noble Lord, Lord Morris of Manchester.
Baroness Hollis of Heigham: My Lords, we are talking about fuel poverty. I have tried to suggest to the House that pensioners are poorer than severely disabled people. The degree to which they are in fuel poverty is significantly higher. Half of those who are fuel poor are pensioners. Only 4 per cent of severely disabled people are fuel poor. Pensioners are more likely to be living in houses which are hard to heat.
Perhaps I may respond to the noble Earl by giving him information on which he has pressed me on previous occasions. The extreme consequence of fuel poverty is demonstrated by hypothermia; that is, the number of people who die additionally between the months of December and April compared with the months of August to November. He will know that,

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unfortunately, the national figure for last year was something like 50,000. That is roughly three times higher than the figure for Scandinavia, France and Germany. Of those 50,000, 45,000 were people over 60. Only 4,000 of those excess deaths were in the age range of nought to 60, which includes, of course, small babies. That suggests that severely disabled people do not suffer at the acute end of winter cold, as the noble Earl suggested.
Lord Renton: My Lords, I declare a family interest as I have a very severely disabled daughter who cannot walk. She is in her 40s. She suffers from cold far more than most people over 60; indeed, far more than some people over 90.
Baroness Hollis of Heigham: My Lords, I hope that the noble Lord's daughter is taking full advantage of all the disability living allowances to which she is entitled. Equally, if the noble Lord's daughter were in permanent residential care, she would be in the same position as elderly folk over the age of 60 in permanent residential care who are not eligible for the winter fuel payment in any event because that is already being met through their supported accommodation.
Lord Ezra: My Lords, the noble Baroness has demonstrated that the bulk of people in fuel poverty are aged over 60; nevertheless, there are quite a number below that age and who are severely disabled. As that number can be identified, is it possible for her department to make absolutely sure that those people are specially assisted to receive such benefits as are available?
Baroness Hollis of Heigham: My Lords, yes. We have taken active steps to ensure that people know of their entitlement to the full range of disability benefits. As I am sure the noble Lord will know, the Chancellor has again announced the new figures for the disability income guarantee which will ensure that disabled people will have, in my view, an adequate and decent income on which to live their lives. It is important that those severely disabled people who live in houses which are draughty, cold and poorly insulated know about and take up the grants which are available because fuel poverty results not only from how much healing is needed and how low your income is but also from the state of your housing. The noble Lord's point is relevant and I shall make sure that disabled people are fully aware of those grants and opportunities.
Lord Pearson of Rannoch: My Lords, will the Minister give the House the total extra cost to the Exchequer of the extension of the winter fuel payment to severely disabled people under the age of 60 as requested by her noble friend Lord Ashley? How much money are we talking about?
Baroness Hollis of Heigham: My Lords, it is between £200 million and £250 million per year.
Lord Ashley of Stoke: My Lords, in the narrow gap between us winning the general election and the
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Chancellor bringing forward a new Budget, and if the noble Baroness is promoted because of her many talents, will she come with me to the Chancellor of the Exchequer and ask him to provide winter fuel payments for the severely disabled, which request is supported on all sides of this House?
Baroness Hollis of Heigham: Um, my Lords! I am always willing to go anywhere with my noble friend.

Health Action Zones: The Morning After Pill
3.14 p.m.
Baroness Youngasked Her Majesty's Government:
How many health action zones have been established which will permit girls as young as 12 to have the morning after pill.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, we have been notified of 12 schemes which have been established by health action zones and health authorities. Although they are open to women of all ages, experience has been that there are very few requests from under-16s. Supplies can be made to an under-16 within the legal framework established for health professionals in 1986.
Baroness Young: My Lords, I thank the noble Lord for that reply. What measures are to be taken to monitor the effect of all this, particularly as regards the number of girls under the age of 16 who are likely to receive those particular pills? Will be monitor also the incidence of sexually transmitted diseases as a consequence of the availability of the morning after pill?
Lord Hunt of Kings Heath: My Lords, certainly I accept that it is important to monitor the progress of health action zones. I assure the noble Baroness that the issues which she has raised will indeed be monitored. My understanding is that in the Manchester health action zone, the average age of women presenting in the Manchester pharmacy scheme was 24 and only 4 per cent were under the age of 16.
The Earl of Longford: My Lords, does my noble friend agree that sex between children, adolescents and unmarried young people should be discouraged by government action?
Lord Hunt of Kings Heath: My Lords, the House is always asking the Government to take action. We wish to do everything that we can to reduce the degree of teenage pregnancy, which is very much associated with the question asked by my noble friend. Our national media campaign in relation to sexual health and teenage pregnancy focuses on giving young people,

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first, the facts about the risk of unprotected sex and also, importantly, helping them to face down the pressure to have sex before they are ready to do so.
Baroness Blatch: My Lords, in view of the fact that the morning after pill is available to young people under the age of 16, what protection is there in relation to the culpability of a teacher or a head teacher who refers a girl to a nurse and/or a pharmacy if something goes wrong?
Lord Hunt of Kings Heath: My Lords, if the contraceptive was issued under a patient group direction, the professional prescribing that contraceptive would be open to regulation and discipline by his regulatory body. In addition, the medical doctor who was concerned with and signed the patient group direction would himself be accountable if an error were made in that patient group direction.
On the question of the supply of contraception by school nurses, the noble Baroness will recognise that that occurs only after a decision by the governing body of the school after consultation with the parents.
Baroness Massey of Darwen: My Lords, does the Minister agree that there is overwhelming evidence to show that very few girls of 12 are having sex in the first place and that the vast number of women who use emergency contraception are in the age range of 30 to 40? Does he further agree that it is better to use emergency contraception than for a child to have a child?
Lord Hunt of Kings Heath: My Lords, I agree with all those statements in my noble friend's question. Indeed, the evidence from the Manchester scheme confirms that.
Lord Clement-Jones: My Lords, will the Minister also agree that in the majority of the other health action zones—particularly the one of which I am aware, the Lambeth, Lewisham, Southwark health action zone—the figures are very similar to those referred to by the noble Baroness, Lady Massey?
Lord Hunt of Kings Heath: My Lords, yes; that is why I responded positively to the original Question by the noble Baroness, Lady Young. Clearly, it is extremely important for us to monitor the figures and make them known because that will inform other potential schemes up and down the country.
Baroness Knight of Collingtree: My Lords, will the Minister say what warnings his department issues to reach those very young girls to ensure that they know about the now known danger of starting a sexually active life very early?
Lord Hunt of Kings Heath: My Lords, as I said to my noble friend, in relation to the overall sexual health strategy, the Government are keen to ensure that the risks of having under-age, unprotected sex should be
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brought home to young people. We seek to do that. At the same time, I believe that when unprotected sex has taken place it is absolutely right that contraceptive advice is available to those young people, as long as the legal framework is followed.
Baroness Uddin: My Lords, can the Minister inform the House what data are kept in relation to women taking the morning after pill, not only in respect of the age of the children and women but also in respect of their ethnicity and race?
Lord Hunt of Kings Heath: My Lords, I agree with my noble friend that it is important that we keep as much information as possible in order to inform our future polices and programmes. The Government's sexual health strategy, which will be launched in due course, will focus on information requirements.
Earl Howe: My Lords, the Minister will remember from our debate at the end of January that one of my concerns in relation to the morning after pill being available in pharmacies is that continuity of healthcare can be compromised. What is the situation in the health action zones where a young person under the age of 16 requests the morning after pill from a pharmacist? Does the pharmacist have an obligation to refer that young person to a GP? What transfer of information takes place?
Lord Hunt of Kings Heath: No, my Lords, I do not believe that a pharmacist has an obligation to refer such a young person to a general practitioner. But whatever conversation takes place between the pharmacist and the young person, that provides an opportunity for information to be imparted about safe sexual health practices. I believe that that happens.
Earl Ferrers: My Lords, does the Minister agree with the observation made once in this House by a distinguished member of the party opposite, Lady Summerskill, that the best contraceptive was the word "No"?
Lord Hunt of Kings Heath: My Lords, there are those who believe that "Just say no" policies will lead to a reduction in sexual activity among young people and reduce teenage pregnancy rates. I do not believe that there is any evidence to show that.

Electromagnetic Fields and Cancer
3.22 p.m.
Baroness Northoverasked Her Majesty's Government:
What plans they have for further research into the association between electricity pylons and an increased risk of childhood leukaemia, in the light of the National Radiological Protection Board's study published on 6th March.
Lord Hunt of Kings Heath: My Lords, the NRPB's advisory group on non-ionising radiation has assessed

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the potential risks of cancer from electromagnetic fields. The NRPB state, that the question of whether exposure to electromagnetic fields can influence the development of cancer cannot at present be completely resolved. However, the NRPB consider, that the report provides no additional scientific evidence to require a change in the guidelines to limit exposure to electromagnetic fields. The Government will consider carefully the recommendations of the NRPB and commission appropriate research in the light of that which is already under way.
Baroness Northover: My Lords, I thank the Minister for that reply. Sir Richard Doll's report concludes:
"the possibility remains that intense and prolonged exposures to magnetic fields can increase the risk of leukaemia in children".
Does the Minister agree that an increase of one case is one too many and that questions must now arise about the safety of pylons near homes and schools? Does he also agree that that research shows how vital it is that Britain's cancer registries have access to all information on every cancer case? Can the Minister assure the House that further research, here and in the EU, as requested by Sir Richard Doll, will now be undertaken as a matter of urgency?
Lord Hunt of Kings Heath: My Lords, I looked with great interest at the work undertaken by Sir Richard Doll, but the conclusion of the report was that the epidemiological evidence is currently not strong enough to justify a firm conclusion that such fields cause leukaemia in children. Therefore, it is clearly important that we redouble our efforts in relation to research, which I can confirm is being done. In discussions with the DTI and the Department of Health, we are looking at work on how homes with a high EMF level can be identified. On the point about information for the cancer registries, I agree with the noble Baroness. That is the purpose of Clause 67 of the Health and Social Care Bill.
Lord Hunt of Chesterton: My Lords, can the Minister tell the House whether the Government will look at research connecting air pollution and electricity pylons, as suggested by work at the University of Bristol? Will they also assess the risk and cost of alternative measures and review practice in other countries which have stronger regulations with regard to planning and pylons?
Lord Hunt of Kings Heath: My Lords, I am aware of the work to which my noble friend refers. My understanding is that that was considered as part of this study. I shall certainly ensure that the remarks of my noble friend are drawn to the attention of the officials taking work forward in research. Based on the evidence so far, we do not believe that that warrants any change in terms of the planning controls and
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regulations in regard to the erection of overhead power lines. All of that revolves back to the availability of robust research. At the moment I believe our focus must be in relation to developing more research in this area.
Lord Clement-Jones: My Lords, following on what the Minister has just said, Sir Richard Doll is no mean epidemiologist. Many years ago he established the link between cancer and smoking; therefore, it is right to take this report seriously. Can the Minister say whether he intends to have discussions, based on this report, with the DETR, the DTI and the relevant electricity companies as a precautionary step? In the circumstances, would that not be wise?
Lord Hunt of Kings Heath: My Lords, I have already referred to discussions with the DTI in relation to further research. Of course, we are happy to have discussions with the undertakers as well. I agree with the noble Lord about the quite outstanding contribution that Sir Richard Doll has made over many years. However, his report says that at the moment there is no evidence to warrant any change in current guidelines, but we are certainly not complacent and that is why we want to focus on more research.
Baroness Masham of Ilton: My Lords, can the Minister tell the House whether there is an increase in childhood leukaemia and can he give an assurance to the House that there are adequate specialised places of treatment for them?
Lord Hunt of Kings Heath: My Lords, the figures that I have available come from a study undertaken by the United Kingdom Childhood Cancer Study, which found that there is no evidence of an association between childhood cancer and residential proximity to power lines. In relation to services in the NHS generally, we are concerned to see that they are of the highest order and that is why we recently published the national cancer plan.
Baroness Hogg: My Lords, does the Minister understand the blight that such uncertainty inflicts on all properties in the neighbourhood of pylons? What does the Government propose to do to help those areas of the country affected by this issue?
Lord Hunt of Kings Heath: My Lords, I have already said that from the evidence available at the moment, there does not appear to be any evidence at all in this country of a direct link between living near pylons and suffering from cancer. That is why the recommendation that we have received is that there should be no change to current guidelines.
It is also worth pointing out that people living in homes that are large distances away from pylons may well suffer from higher levels of what is called EMF, which is the risk factor. The reality is that as yet we do not know enough to draw firm conclusions, and that is why at this stage it is surely right to focus on research.

Foot and Mouth Disease
3.30 p.m.
Baroness Byford: My Lords, I beg leave to ask a Question of which I have given private notice, namely:
What is the latest development in the foot and mouth epidemic?
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): My Lords, it might assist the House if I answer the Question in the same terms as my right honourable friend answered a similar Question earlier today in another place.
At noon today, there were 104 confirmed cases in the United Kingdom—103 in Great Britain and one in Northern Ireland—with a number still under investigation. The pattern is still consistent with Heddon-on-the-Wall as the oldest known outbreak, with subsequent spread mainly through movement of animals, particularly sheep. About 90,000 animals have been identified for slaughter, of which 61,000 have been killed so far. Plans are in hand to render some of the carcasses as an alternative to burning on farm.
More than 260 abattoirs have been approved for the scheme by the Meat Hygiene Service as licensed to slaughter. Of those, 168 were operating yesterday. The Meat and Livestock Commission estimated yesterday that British pork production was back to 50 per cent of normal, with beef at 40 per cent and lamb at 30 per cent.
In order to relieve animal welfare problems, officials are urgently working on arrangements to allow licensed local movement of animals within farms in uninfected areas only, where this would not increase disease risk. We hope to have proposals prepared very shortly.
The EU Standing Veterinary Committee met on 6th March. The ban on UK exports of animals and products has been extended to Tuesday 27th March, but from 9th March the UK will be able to export unpasteurized cheeses to some countries.
The SVC also imposed a ban on all livestock markets and assembly points in the EU for two weeks, and a ban on animal movements except to slaughter or from farm to farm authorised by the competent authority. All vehicles leaving the UK will have to pass over a disinfectant bath. The Commission remains very supportive of UK action against the disease.
Baroness Byford: My Lords, I am grateful to the Minister for updating us about this tragic incident. One hundred and four cases are 104 cases too many. Perhaps I may again express our sympathies to the families who are dealing directly with the problem and to those who have seen their lifetime work destroyed. Perhaps I may also pay tribute to MAFF, the vets and all those working at the front line. They all deserve our thanks.
Noble Lords: Hear, hear!
Baroness Byford: My Lords, the Minister mentioned localised movement and I am aware that there is a
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safety factor in whatever restrictions on movement are introduced. However, is the Minister aware that there is increasing pressure and urgency on farmers who have in-lamb ewes?
Secondly, it is taking up to two weeks to confirm whether a suspect case is positive or negative. Can that time be shortened? Having had a case confirmed, it sometimes takes five or six days before disposal of the animals is completed. Do the Government have available to them a sufficient number of vets and so forth? Have they asked for help from, say, the Ministry of Defence?
Baroness Hayman: My Lords, I am grateful for the support of the noble Baroness. She is right to point out that in any licensing scheme, whether for resumption of trade or for welfare reason, a difficult balance must be struck in weighing the risk of disease spreading by movement and the risk of compromise to animal welfare. We are looking at a localised scheme. Obviously, we are well aware of the difficulties of many animals, particularly sheep away from their home farms about to lamb. We are putting out welfare advice on animals which are away from home.
We are looking at a scheme for licensing movements but I have to say that overall the veterinary advice about minimising the risk of disease spread must take priority. The farming unions recognise that because it is in the interests of the industry as a whole.
As regards the time taken for confirmation, in many cases positive diagnosis of the disease is being made on clinical symptoms only, but when a case needs to go to a laboratory it is being confirmed quickly. Finding a negative result takes longer due to the nature of the necessary exhaustive tests. In some cases, there have been hold-ups in laboratories and we are seeking to smooth those out and deal with any backlogs.
I am aware of the concern about delay in the disposal of the animals. Dispatch of the animals must be achieved within 24 hours. They are then disinfected and the disposal of corpses is arranged. Delays have not been connected with manpower but with getting together large stocks of coal, railway sleepers and other necessary items. That is why we are looking at transport in sealed vehicles to rendering plants. However, for the avoidance of doubt I should say that there is no reason to believe that these corpses are a disease risk; they are treated with disinfectant and are not exhaling the virus.
he Countess of Mar:My Lords, I agree with the sentiments of the noble Baroness, Lady Byford, about the excellent work being done by the Minister's staff. I was most moved to hear the noble Baroness this morning expressing genuine sympathy for all the farmers. She drove me to tears at a quarter to six this morning.
I declare an interest as a specialist cheese maker and want to ask the Minister a question of which I have given her notice. I consulted my environmental health officer this morning and know that there is great concern about the fact that in restricted areas, or in

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areas in which there has been an outbreak, there is to be no movement of unpasteurised cheeses. I can tell the Minister that half an hour ago I spoke to Dr Fred Brown, the eminent expert on foot and mouth disease. He advised me that it is highly unlikely that foot and mouth virus would survive the cheese-making process, whether the milk was pasteurised or not. He also advised me that as regards cheeses already made, a spray with a 2 per cent citric acid solution would kill the virus.
What risk assessment was done by her department before that instruction was released? Will it reconsider its decision on the safety of cheese?
Baroness; Hayman: My Lords, I am grateful to the noble Countess for her comments and for giving me notice of her technical question. If the unpasteurised cheese was made before an area was declared infected, it can be moved freely in and out of the area. After declaration of an infected area, one cannot process unpasteurised milk into cheese. It would not be permitted under the Dairy Products Hygiene Regulations 1995.
I note the point which the noble Countess made about the scientific evidence available. If she would give it to me, I should be happy to put it to the state veterinary service in order to see whether we need to make amendments without compromising the spread of disease.
Baroness Miller of Chilthorne Domer: My Lords, perhaps I may press the Minister on the time taken for testing. I listened carefully to her reply. I understand that the time taken for a positive test is four hours and that the Pirbright centre needs to undertake a further test to confirm a negative result, which takes 96 hours.
However, a test for a case near me at Badgworth near Axbridge was sent off on 28th February and the results have not been returned. Will the Minister accept that, when farmers want to know whether they can take part in a licensing scheme, that wait is very long? Furthermore, is it the target time? Six or seven days is much more than the 96 hours which the test should take.
Baroness Hayman: My Lords, if every positive result was found within four hours it would take the same amount of time to find a negative result. It does take longer. While 96 hours is widely quoted, it is the minimum laboratory period required to obtain a negative result in some cases. Depending on the samples submitted—sometimes additional samples have to be taken—it may take longer. I do not disagree with the noble Baroness that hold-ups have occurred in individual cases. We have tried to investigate them and make sure that if there is a systemic problem we address it. We shall continue to do that and deal with any cases that are raised with us.
Lord Taylor of Blackburn: My Lords, does my noble friend agree that it was right and proper to table this Question, but that in thanking so many people the noble Baroness forgot to thank Her Majesty's
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Government, in particular the Minister's department, for the efficient and expeditious way in which they have dealt with this matter? Will my noble friend accept from me and my colleagues, and, I believe, noble Lords on all sides of the House, congratulations on the way in which this matter has been dealt with?
Baroness Byford: My Lords, before the Minister responds, I did thank MAFF, which is the government department for which the noble Baroness is responsible.
Baroness Hayman: My Lords, no one has been anything other than generous in responding to how the department has dealt with this crisis. We are not through it yet. Noble Lords have used the past tense. I believe that we should all keep our accolades until we have finished.

Social Security Fraud Bill [H.L.]
3.41 p.m.
Read a third time.
Clause 1 [Additional powers to obtain information]:
Lord Higgins Lord Higgins moved Amendment No. 1:
Page 2, line 21, at end insert—
("() Requests from a fraud inspector in a local authority for an authorised officer to obtain information from any of the bodies listed above shall be made through a central organisation.").
The noble Lord said: My Lords, I believe that in considering Amendment No. 1 it would be helpful to look also at Amendment No. 2, which is somewhat similar but deals with offices of the Department of Social Security rather than local authorities.
The Bill before us at Third Reading is significantly different from that which your Lordships considered at Second Reading. In many respects the Bill is a. great deal better, and a number of our concerns have been put at rest. There remain some concerns, to which I shall refer a little later this afternoon. One of the important concerns is the need to ensure that a request for information from the various outside bodies listed in Clause 1—telecommunications companies, credit agencies, banks and so on—is made at minimum cost and as effectively as possible. We have debated two particular aspects of the matter: first, whether the inquiries will be directed to a central point in the organisation which is asked to provide the information; secondly, whether the request for the information itself should also be centralised.
We made some progress in this matter at earlier stages, but concern is still expressed, for example by British Telecom, that, although there may be one central point through which inquiries are made, there may be a considerable number of authorised officers at each point. Each will need to be authorised, and that authorisation must be checked by the information providers. Therefore, a considerable burden is placed on those who give the department or local authority the information that it requires to try to detect fraud. It would be helpful, therefore, if the Minister assisted

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noble Lords, as she has in relation to many previous amendments, by explaining the extent of the problem that has been brought to our attention.
As I understand it, first, it is proposed that as far as concerns the department's own inquiries the task should be done regionally, but there will be a considerable number of regions, and authorised officers within them, to be validated. Can the noble Baroness give an idea of exactly how many are likely to be involved, and whether it is possible to centralise the whole operation rather than do it on a regional basis as far as concern the department's inquiries?
Secondly, I turn to local authority inquiries. As we understand it, some local authorities will be authorised by the Secretary of State and their own authorised officers will make inquiries. On the other hand, we understand that a number of local authorities will not be authorised by the Secretary of State. Can the Minister provide some idea of the criteria on which such authorisation will be made and the approximate scale of the problem? There are about 400 local authorities. At the moment, we are not clear what percentage of local authorities with their own officers will be authorised and the percentage which will be, so to speak, under an umbrella. At all events, it means that this system is far from the situation in which, say, a bank receives applications for information from a single central point. It will be considerably diffused over a large number of local authorities and a smaller number of DSS regional offices.
It has been suggested that there should be a central clearing office for local authority disclosure requests similar to that which is in effect—perhaps I may have the attention of the noble Baroness—with trading standards officers. Apparently, that is centralised to a greater extent than is now envisaged by the department. Obviously, it is important to reduce costs. As the noble Baroness is aware, in that respect particular concerns are being expressed by local authorities. Before we say farewell to the Bill and it goes to another place, I believe it is helpful to be clearer as to the exact extent to which the Government envisage it will be possible to centralise requests for information either within local authorities or the department itself. I beg to move.
Baroness Hollis of Heigham: My Lords, we debated the issue of centralisation of information requests in some detail in Committee and on Report. These amendments seek to ensure that requests from local authorities and DSS to the listed bodies are routed through a central point. Amendment No. 1 has two different meanings: either that local authorities must work through a central point, which is a problem, or they must themselves offer within each local authority a central point of inquiry, with which we agree. I have two separate speeches and I am not sure which one I should make in dealing with the noble Lord's amendment.
If I understand it correctly, as worded the amendment provides that requests from a fraud inspector in a local authority for an authorised officer
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to obtain information shall be made through a central organisation. But it does not make clear what form the central organisation should take. Would it be a regional or national central organisation? Nor has the noble Lord enlightened the House as to how much it will cost to set it up, who is to pay for it, what local authorities think of the idea and how it will assist them in cutting the bill of over £600 million in respect of housing benefit fraud. I find it difficult to see how to take forward that proposal.
To pursue the implications, to route all requests through a central point, presumably in the DSS, is not a viable option, for the reasons stated during previous debates. It would impose extra costs and act as a disincentive, and it would add to the time taken to pursue and control fraud. Obviously, there is plenty of scope for local authorities to work together. We meet local authority representatives on a regular basis to discuss all the practical issues which arise from the Bill, one of which is the centralisation of requests. The noble Lord may be assisted to know that we have asked them whether there may be scope for local authorities in a particular area to band together to make inquiries from central points. But that is a matter for discussion with local authorities and for them to organise themselves in the most effective way. That may be a constructive response.
Lord Higgins: My Lords, perhaps the noble Baroness was distracted for a moment. Do trading standards officers provide us with a model to follow?
Baroness Hollis of Heigham: My Lords, I understand that in Gloucester trading standards officers use the local authority for inquiries. My advisers do not know of any other example. Let me follow that up because it may or may not be a helpful precedent. That is the best information we have; just the one example in Gloucester. Therefore, that is not a widespread practice.
I return to the first point. Although we would be loath to legislate in any statutory way, we will work with local authorities to get them to work together and reduce the number of contact points with business.
I turn to Amendment No. 2. The amendment seeks to make it a requirement that requests for information from DSS authorised officers be made to the listed bodies through a central organisation.
I can again reassure the noble Lord that authorised officers will not be located in DSS local offices. They will work in 13 area intelligence units or, in the case of our staff investigating organised fraud, in the National Intelligence Unit. That is because the Benefits Agency, the delivery arm of DSS, is organised into 13 area directorates. Given the large number of staff—89,000—in the BA, that is understandable.
Fraud investigators who work for the Benefit Fraud Investigation Service (BFIS) are located at offices throughout these area directorates. Additionally, fraud investigators who work for the Benefits Agency Security Investigation Service (BASIS) are located at several offices around the country. They deal with

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serious and organised crime against the benefits system. They are the equivalent of police regional crime squads. Our intention is that each of the area directorates will have an area intelligence unit. Together with the National Intelligence Unit, that makes 14.
Therefore, fraud investigators in approximately 450 Benefits Agency local offices will address their requests for information to an authorised officer in one of the intelligence units—the 13 area ones or the one national one. The authorised officer will, if he is satisfied that the request is reasonable on grounds debated previously, and that there is no other less intrusive way of obtaining the information, make the request to the listed body. I hope that that explanation proves satisfactory to the noble Lord and that he will feel able to withdraw his amendment.
Lord Higgins: My Lords, can the Minister give us sonic idea of the total figure? I understand that there are 14 regional or area offices of the DSS, but there are apparently then 400 local authorities. I am not at all clear, nor are those outside, to what extent these will be amalgamated in making requests. Obviously, if 414 individual groups of people come to a bank at some central point, the problems the bank has in validating the authorisation of all these people and so on, and then dealing with the inquiries, are much greater than if there is some central collection point.
As I understand the situation with regard to trading standards officers, there is a central clearing office. When one says "central" one means central—a single point.
Baroness Hollis of Heigham: My Lords, we may have 500 DSS officers and 1,000 local officers. We are not certain yet what numbers we are talking about. But that is the proportion. That means that we expect that it could be five or 50 DSS area offices. My present understanding is that we are talking of authorised officers on that kind of scale. In terms of local authorities, we may be talking of two or three, according to size within each individual local authority. It is of that proportion.
The noble Lord will appreciate that we are making a distinction here between fraud investigators on the ground who actually do the day-to-day work and authorised officers. There may be a team of 20 or 30 in a medium-sized local authority with a population of 100,000, but there will be only one or two authorised officers to whom they will have to go if they require information which has to be specifically approved in terms of the Bill.
Lord Higgins: My Lords, I am grateful to the Minister for that reply, as far as it went. I still have some difficulty in ascertaining how many individuals or groups of individuals will be applying to the central point. For example, a bank will say, "I want all the inquiries through a central point". Evidently it will get at least 14 different groups of people applying to it. I understand the distinction between fraud investigators and authorised officers. But the bank will also get
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many inquiries from groups of people—some from local authorities which have been authorised and will have their own authorised officer, but also, presumably, there will be some kind of collective of the non-local authority bodies which have not been given authority to have their own authorised officer, I am looking simply for a number. Does a hank have to validate the applications of 414 people or for a very large number?
Should there be any misunderstanding on this point, I am not seeking to intervene before the Minister sits down. I think that would be a disorderly form of conduct; I am merely saying that that number is still unclear. Perhaps she will in her usual courteous way write to us and give us some idea what that number is. When the Bill goes to another place, the numbers we are talking about will then be clearer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 3:
Page 2, line 27, at end insert—
("() Prior to the exercise of the power conferred on an authorised officer to obtain information under this section, that officer shall obtain in writing the consent to carry out an investigation.
() Consent shall be obtained from an official of seniority of 'higher executive officer', or above, from the relevant department.").
The noble Lord said: My Lords, Amendment No. 3 relates to the level of seniority in the DSS and local authorities at which consent must be obtained for investigations to take place. We believe that authorised officers should be required to receive written consent from an official of higher executive officer status or above. On Report, the Minister said that such officials will be appointed at executive officer grade, grade B3, or its equivalent in a local authority. That is a management grade equivalent to that of a flight lieutenant or a second lieutenant.
The ranks of flight lieutenant and second lieutenant are so lowly that they do not appear on the Civil Service military grade equivalent. I, myself, was once a second lieutenant. My regiment quickly made me aware what little responsibility that grade enjoyed. Furthermore, my research assistant tells me that when she worked in the Civil Service, her executive officer did not even have the authority to sign the stationery order form for paperclips.
Baroness Hollis of Heigham: My Lords, under what administration was there such foolish waste of talent?
Lord Astor of Hever: My Lords, the electricity association, the ABI, BT and the BBA tell us that the proposed level of executive officer is too low. They will be at the sharp end of tens of thousands of inquiries each year from the substantial number of authorised officers that the Minister has just mentioned.
BT has its roots in the Civil Service. It points out that its executive officer equivalent is the first level of management within the company and does not carry

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any meaningful responsibility. Indeed, many managers at this level would be relatively inexperienced young graduates. Furthermore, it points out that under the Regulation of Investigatory Powers Act disclosure of lower level communications data, such as that required under the Bill, must be authorised by a police superintendent. The equivalent rank in the DSS is a senior executive officer.
Logically, authority levels for the Bill should be in line with the RIPA. If that cannot be achieved, BT would not expect the level to drop below higher executive officer.
The BBA points out that draft clauses of the proceeds of crime Bill place the level for similar powers also at the rank of police superintendent. I beg to move.
4 p.m.
Baroness Hollis of Heigham: My Lords, the amendment seeks to impose a condition that authorised officers shall seek the written consent of an official of HEO grade before exercising powers to obtain information.
Given the admirable autobiographical contribution of the noble Lord, I shall not repeat all the matters about flight lieutenants and so on. I am sorry that the MoD was so nasty to him. I am sure that he has now got over it. I do not want to repeat that except to say that officers will be authorised by the Secretary of State in the case of DSS staff and by the chief executive in the case of local authorities. They will receive their authorisation only when they have completed specialist training courses in the Professionalism in Security syllabus or its equivalent. We shall give them a detailed knowledge of their powers under the Bill. The training will also cover human rights and data protection law, the guidance in the code of practice, and so on. Their job will be to determine whether requests for information made by the fraud staff on the ground are reasonable and justified within the framework of the Bill.
As I said in Committee, authorised officers will be staff of executive officer grade—that is B3—or the equivalent in a local authority. It is a senior grade equivalent to a level between sergeant and inspector in the police force, alongside whom they will be working. The noble Lord shakes his head. That is my information. I would point out that the analogy with police superintendent made by the noble Lord is for the exercise of very much more invasive powers. For example, they include traffic data; that is, what is said on telephones and who it is being received by, not just the reverse searches that we are talking about. Equally, some of the powers under the Regulation of Investigatory Powers Act—whether exercised by the Inland Revenue or Customs and Excise—are surveillance powers, which again are much more intrusive and where one would normally have to have police support. What we are talking about with BT is for the most part the data exchange and the checking of basic information in terms of where people live and
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against their use of energy and electricity supply to see whether that is consistent with the information that we have.
I want to make a second point. I am surprised still by the belief of noble Lords opposite about the low level of responsibility presently enjoyed by executive officers. Executive officers are the grade of officer who currently use the department's powers to inspect the records of employers about their employees. They are currently expected to use their experience and training to decide when an inspection is appropriate and must carry out that inspection within the framework of the law. They have to question the employer and examine those records. I should have thought that that was a highly sensitive job, competently carried out, and requiring a degree of expertise in many ways probably more demanding than we are expecting executive officers to operate under the Bill. I hope that the noble Lord will agree.
However, it may be that I can give the noble Lord some of the assurances that he seeks. Although authorised officers will normally be of EO grade, it may be that I can meet the noble Lord's concerns by assuring him about the degree of supervision that will be exercised over their work by HEOs and, where appropriate, SEOs. An HEO will manage authorised officers. That person will routinely check the work of authorised officers. There is already a comprehensive regime of test checks on the activities of fraud investigators. These checks are made by the HEO and deal with all aspects of the investigation. That includes whether the investigation has been conducted correctly, whether information and evidence have been gathered in the most appropriate way, and whether any financial savings have been recorded correctly. All cases that have been open over 13 weeks are subject to such a check. In addition, a proportion of investigations are checked when they are finalised.
The activities of fraud officers are subject to a number of other checks; for example, the use of the computers that we have described. There are also checks on the issue and use of notebooks and those are checked every 13 weeks. We have built on this regime with management checks by HEOs on the activity of authorised officers at EO level. In addition, if anyone, whether an individual or information provider, has a complaint or question about the way that these powers are applied, they can direct that complaint to the authorised officer's manager—and they will know who that is because we will tell them. Their address will be included in all requests for information.
I have tried to suggest, first, that EO is the proper level of responsibility at which authorised officer activity should be carried out. It is certainly analogous to other activities, often of an equal if not more sensitive nature, that EOs currently carry out. Secondly, they will be properly trained. Thirdly, they will be properly managed. Fourthly, there will be in place an appropriate and proper complaints system should any difficulties emerge.

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In the light of that information—it has been useful to explain the degree of supervision by HEOs—I hope that the noble Lord will feel able to withdraw the amendment.
Lord Astor of Hever: My Lords, I am grateful to the noble Baroness for that reply. I must be frank and say that we are still concerned about this issue. It is an area of great concern to the outside bodies that have been in touch with us. I take her point that the EOs will be properly trained. I also take her point that they will be supervised, although, of course, they can still make decisions themselves. I disagree with one point made by the noble Baroness. She said that this is not traffic data but communications data. I hope that these points can be tightened up in the revised code of conduct. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 4:
Page 3, line 18, at end insert—
("() For subsection (5) of that section (protection from self incrimination) there shall be substituted—
"(5) No one shall be required under this section to provide—

(a) any information that tends to incriminate either himself or, in the case of a person who is married, his spouse; or

(b) any information in respect of which a claim to legal professional privilege or, in Scotland, confidentiality as between client and professional legal adviser, would be successful in any proceedings;

and for the purposes of this subsection it is immaterial whether the information is in documentary form or not."").
The noble Baroness said: My Lords, in moving Amendment No. 4, I wish to speak also to Amendment No. 5, which is consequential to it. I hope that the House will welcome the amendments.
On Report, I agreed to bring forward an amendment to exempt information subject to legal professional privilege from that which could be obtained under these powers. That was in response to concerns raised from both Opposition Benches about the information to which authorised officers could gain access, particularly in the context of organisations that might be added to the list of persons that could be required to provide information.
This amendment amends the current Section 109B(5), which exempts self incriminating information from that which can be required by an authorised officer. It restates the exemption that no one shall be required to provide information whereby he might incriminate himself or, in the case of a person who is married, his spouse, and includes a new exemption that no one shall be required to provide information which is subject to legal professional privilege or its equivalent in Scotland. The wording is closely aligned to that used to exempt information subject to legal professional privilege in the Data Protection Act 1998 and the Freedom of Information Act 2000.
The term "legal professional privilege" is well understood. It has been ruled upon over many years by the courts, and is thus well defined in case law. The
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amendment will prevent authorised officers from requiring any confidential communications between a legal adviser and his client for the purposes of giving or receiving legal advice, or any information obtained or documentation prepared for the purposes of legal proceedings. So we would be able to require details of financial information provided to a building society in the application for a loan to buy a property. But we would not be able to obtain any information which, for example, related to advice that the building society's lawyer may have given about the ownership of the property in question for the purpose of settling a property dispute.
The exemption would not extend to any information provided by a person to his solicitor for the purpose of furthering an offence. I am sure the House will understand that. For example, if a person cashed stolen giro cheques and used a "bent" lawyer to transfer the money overseas, the communication that led to the transfer would not be protected. That would depend on whether the lawyer knew where the money had come form; I suspect that in some cases the lawyer might. It would also not enable a person to hide from these provisions merely by using a bank's lawyer instead of another officer in the bank. The privilege applies only to communications arising in the context of the relationship between a professional legal adviser and client.
Thus, I think that we have protected a person's ability to communicate frankly with his lawyer for the purposes of legal advice and legal representation while ensuring that he cannot use this protection to continue committing benefit fraud by laundering information and evade punishment for doing so. I hope that noble Lords will welcome the amendments. I have done my best to meet the legitimate and proper concerns of the House and I am very glad to be bringing the amendments forward today. I beg to move.
Lord Astor of Hever: My Lords, I am grateful to the noble Baroness for coming back to the House with these amendments. They meet our concerns precisely. We are grateful to her.
Earl Russell: My Lords, I thank the Minister warmly for these amendments. She has developed a habit on this Bill of producing more than she promised. That is a good habit. I was telling the Minister only, but my remarks are addressed as properly to the House.
There is a larger problem here. I did not think that the Minister would succeed in addressing the whole of the problem, and the noble Baroness knows that. She has addressed a rather larger problem even than I hoped when we left the matter on Report. There remains the problem of the confidentiality of financial advice from, for example, one's bank. I do not see an immediate way around that, but I did say that I thought that the Minister had promised all she possibly could deliver.
I like in particular paragraph (b) of the amendment, which privileges,
"any information in respect of which a claim to legal professional privilege…would he successful in any proceedings".

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That meets the fact that the common law has a capacity for growth, which it continues to exercise. That is something not always appreciated by legislators quite as clearly as it might be. In the future, it will save us a great deal of trouble. For that, too, I thank the Minister.
On Question, amendment agreed to.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 5:
Page 3, line 19, leave out ("subsection (5) of that section") and insert ("that subsection").
On Question, amendment agreed to.
Clause 3 [Code of practice about use of information powers]:
Lord Higgins Lord Higgins moved Amendment No. 6:
Page 7, line 13, after ("practice") insert ("covering—

(a) benefits administered by the Department of Social Security, and

(b) benefits administered by local authorities.

() The codes of conduct shall relate").
The noble Lord said: My Lords, this amendment relates to the code of practice, a draft of which the noble Baroness kindly provided at an earlier stage in our proceedings. If this amendment is agreed, the beginning of Clause 3 would read,
"The Secretary of State shall issue a code of practice covering

(a) benefits administered by the Department of Social Security, and

(b) benefits administered by local authorities.

The codes of conduct shall relate",
to the exercise of the various powers enumerated in remainder of the clause.
We thought it might be helpful, in the context of our discussions on Report as regards the code of practice, to bring to the attention of the Minister one or two points which might be of interest to her at this stage. The amendment as drafted reflects to some extent a misapprehension on my part. I had thought that we were to have two separate codes of practice but I now understand that there is to be a single code. The reason for the misunderstanding is that we already have a draft of the code to cover the position on inquiries made by the department. However, it appears that the Government are not yet in a position to add to it those parts relating to local authorities. Eventually, it is intended that all the elements will be brought together in a single document, which will then be authorised under this clause and thus put on to a statutory footing. The noble Baroness knows that we welcome that process.
We also understand that the remaining elements of the code covering local authorities will be made available to another place when it comes to consider the matter. It would be helpful if the noble Baroness could give an indication of whether that is likely to be around the time of the Commons Second Reading or by the beginning of the Committee stage, given that, in due course, we may be under the restraints imposed by an impending general election. It would be helpful to
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know the timetable covering when we shall have an opportunity to review the remaining parts of the draft code which she has already promised will be made available to us.
A further point which remains a little confusing in the draft is the proliferation of officials, or perhaps it is merely a proliferation of the descriptions of a relatively small number of officials. On reading through the draft code, this appears to be something of a problem. I have established that reference is made not only to "authorised officers" and "fraud investigators" but also, for example, at paragraph 3.5, to "fraud specialists". I am not in the least clear about the distinction, if any, between a fraud investigator and a fraud specialist. If all these titles refer to the same official, then that will not help matters.
Reference is also made to "managers of intelligence units". I am not clear about their functions. Furthermore, the code mentions "officers dealing with inquiries". Are those officers the same people as either fraud investigators or fraud specialists, or neither? Even more surprisingly, certain people are described as "decision makers". Are such decision makers the same people as authorised officers—
Baroness Hollis of Heigham: My Lords, they are not the same people.
Lord Higgins: My Lords, in that case, I am now completely confused, as will be anyone who reads the code of practice. We need to be clear about whether decision makers are separate from the other individuals to whom I have referred.
It might also be helpful at this stage, in preparation for the Bill's imminent translation to another place, to be told a little more precisely how the Bill is to operate. We understand that the fraud investigator will carry out an initial inquiry and then, provided that he has convinced himself under the terms set out in paragraph 3.6 that the inquiries he proposes to make are "legitimate and necessary", he will then approach the authorised officer and state, "Now I should like you to obtain for me the information from the banks, the credit rating offices and so forth". However, the decision on whether to pursue that course rests solely with the authorised officer. It does not rest with the investigating inspector, under any of his pseudonyms.
Baroness Hollis of Heigham: My Lords, we do not have an investigating inspector.
Lord Higgins: My Lords, if the noble Baroness looks through our earlier deliberations in Hansard, she may find references to that title. Can the noble Baroness outline briefly the process here, in particular in the light of the points made in our previous debate as regards the level of competence at which different functions are to be carried out?
Having made those points, I acknowledge that it has been helpful to have seen the first part of the draft code. We look forward to seeing the remainder in due

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course. I imagine that we shall then have an opportunity to consider it further if the Bill comes back to us. I beg to move.
4.15 p.m.
Earl Russell: My Lords, the Minister will be aware that the Local Government Association has expressed concern about this matter which I think may be appropriately repeated in this House. Yesterday, local authorities were not particularly conspicuous among the recipients of something that might be described as a little smaller than "largesse". One might refer to it as "medium-sizedess".
Local authorities have experienced a bad 15 to 20 years and are now under considerable financial pressure. The Local Government Association has said that:
"Any additional cost of administration should, however, be borne by national not local government as it is central government that will gain from the reduction in social security expenditure (estimated at between £200m and £400m per annum)".
Prima facie, that sounds like a fair point. I am sure that the Minister will say that a certain amount of additional money has been made available in line with inflation. However, she will be equally aware that a number of other tasks, which add considerably to the daily work of local authority housing benefit departments, have come in at the same time. Most notable among those are: the verification framework, which provides a much more backbreaking burden of work for local authority housing benefit departments; the change in housing benefit to payments in arrears; the single room rent; the local reference rent and a good deal more. All these changes have made the conditions covering benefit entitlement rather more onerous.
To add to this a further burden of work which will fall on local authorities and to expect them to pay for it, in a situation where, unlike a private business, they cannot increase their own prices or turnover and where they operate subject to fairly strict central government control, might, at the receiving end, look a little like a vice.
I hope that the Minister might take account of this situation and, before we go into local elections, that she will think about providing us with local authorities which are a bit more financially viable than some of them, in London and elsewhere, are at the moment.
Baroness Hollis of Heigham: My Lords, I do not think that I need to say much in terms of explaining how the code of practice will operate because the noble Lord, Lord Higgins, has clarified his position on this and he is right. It is precisely because we want the training and powers of authorised officials, whether in the DSS or local authorities, and the way that they exercise those powers to be absolutely the same and to common standards that we are going for a common code of practice. This has the support of the Local Authority Association. Its view is that where DSS and local authority staff are governed by the same powers,
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it would prefer them to be governed by the same code. It supports us in drafting one code to cover both the DSS and local authorities.
The noble Lord is absolutely right in his understanding of how this system will operate. It is not yet in the draft because we are still in continuous negotiations with those bodies. The draft which embodies their views and how it will reflect on local authorities will be available, I fear, not at Second Reading but at Committee stage in the other place. None the less, it will be available in good enough time.
As to the second question of the noble Lord, Lord Higgins, as regards language, I take his point. Indeed, our officials have taken his point and they will be going through the code to clarify the language and to ensure that we do not scatter words around. The noble Lord is right, for example, that "fraud investigators" and "fraud specialists" are the same people.
Perhaps I may explain how the system will operate. As in the DSS, there are in local authorities specialist fraud teams which carry out the day-to-day work of checking whether a person is living at the address from which he or she is claiming housing benefit—that is now current practice within local authorities—in the same way that we make approximately 500,000 visits every year to check on the validity of income support and JSA claims and so on. These are the fraud investigators or the fraud specialists; we need a common language.
However, in order to obtain information beyond that which they are normally empowered to gather, under the additional information powers in the Bill they will have to have authorisation from authorised officers, as the noble Lord rightly identified. Those authorised officers, in turn, are managed by the managers of the regional intelligence units in which they are grouped, who will be HEOs, SEOs or more senior.
The decision makers are those people who make the determination of benefit following this information. It is extremely important that, as with the Inland Revenue, you have a Chinese wall between the people making inquiries, the fraud investigators and so on, on the ground—and, indeed, even the authorised officials who authorise the right to pursue certain kinds of information—and the decision makers who will determine whether a benefit is to be altered or continued following receipt of the information. This is a crucial piece of independence throughout the social security system. That is their function.
The noble Earl, Lord Russell, raised a third point. He will forgive me if I do not respond to his bait for a general debate on the local authority financial settlement as reflected in the Budget during the consideration of an amendment on a code of practice at Third Reading.
As the noble Earl will know, local authorities will have a settlement in line with inflation in terms of housing benefits management. They will also, of course, be enjoying a reduced caseload. They will receive an increase of 2.5 per cent to handle a reduced caseload. In that sense, there should be an

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improvement in real terms in their situation. I am sure that many local authorities will not consider this adequate, but that, I am afraid, is part of an on-going debate between another government department and local authorities when determining the annual financial settlement. I cannot help the noble Earl beyond that.
In the light of my explanation, I hope that the noble Lord, Lord Higgins, will feel able to withdraw his amendment. I hope that I have been able to clarify the points he raised.
Lord Higgins: My Lords, the Minister has been typically helpful in her reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Loss of benefit for commission of benefit offences]:
Earl Russell Earl Russell moved Amendment No. 7:
Page 11, line 26, leave out ("shall") and insert ("may").
The noble Earl said: My Lords, in terms of wording, this is a very familiar amendment; it seeks to delete the word "shall" and to replace it with the word "may". The effect of the amendment is to make the benefit disentitlement in what is now Clause 7 no longer a mandatory sentence. We on these Benches are opposed in principle to mandatory sentences. This is a mandatory sentence; therefore we object to it as we do to the others.
I remember very vividly the noble and learned Lord, Lord Bingham of Cornhill, speaking on the Second Reading of the Crime (Sentences) Bill in 1996, pointing out that when you try to exclude discretion in one place it has the effect of making it creep in somewhere else. I doubt whether this will be an exception.
If the Minister looks at her reply to me on Report on Clause 6, she will see that she was herself admitting that some offences of benefit fraud are of much greater gravity than others. As soon as you admit that while at the same time giving an equal punishment to all cases of benefit fraud, you invite the response that you might as well be hung for a sheep as lamb—which, of course, was originally a response to a mandatory sentence. So a certain amount of discretion in this area could be valuable.
It is also fairly clear that between fraud and error there is a very wide grey area. Within that grey area there are a great many shades, some of them very dark indeed and some of them very pale indeed. To deprive the courts of the power to respond to these differences between shades of grey is something which, among other consequences, may have the effect of reducing the rate of conviction, which, I think, is not what the Minister intends.
Thinking again today about Clause 7 and about the appropriate penalties under this Bill, I wonder why the Government have not provided any penalty as an alternative to loss of benefit. The Minister will remember that she gave me a lot of examples on Report of social security fraudsters who never had any
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benefit entitlement in the first place; who, by losing their benefit entitlement are losing something that they will not particularly mind losing. I would rather see the Government with something else up their sleeve to use in such cases. I have not ventured to suggest any particular alternative because of some doubt about what the Minister would regard as an appropriate level of gravity on which to base it.
The Bill is not yet concluded. The Government have time to think about providing an alternative if they think that is appropriate. Meanwhile, the arguments about the mandatory sentence are familiar and I believe they stand. I beg to move.
Baroness Hollis of Heigham: My Lords, I shall come on to the intended effect of the amendment in a moment but, for the record, perhaps I may point out what the actual effect will be. To do so, I need to set out subsection (3) of Clause 7, which this amendment seeks to change, in the context of the rest of Clause 7. I am looking to the noble Lord, Lord Goodhart, to tell me whether my drafting is incorrect or is fine.
Subsection (2) of Clause 7 provides that, subject to the exceptions created by subsections (3) to (5), no sanctionable benefit is payable during the 13 weeks sanction period where a person is twice convicted as defined in subsection (1). Subsection (3) of Clause 7 provides the power to make regulations providing for income support to be paid, albeit at a reduced rate, during the sanction period. By changing "shall" to "may", the application of those regulations—that is, the payment of any income support— would become optional; or, as the noble Earl would say, discretionary. However, the provision would set no criteria on which to base a decision not to pay any income support at all. I am sure that the House will agree that this would be fraught with danger, far from good legislation and very unwise.
It may even have the opposite effect to the one that the noble Earl, Lord Russell, intends. I think he intends—we are talking about wording—to seek a discretion to disapply the sanction in certain circumstances. This would mean that claimants on income support could be treated differently from those on other sanctionable benefits. It would also create the potential for disparity of treatment within the income support client group. It would be possible for two claimants, both receiving income support, both having been twice convicted of identical benefit frauds, to receive different decisions on whether the sanction was applicable.
It envisages a state of affairs where a family on income support might not be subject to the sanction because an officer felt that their circumstances did not merit it, whereas a family in identical circumstances, but receiving JSA, would automatically be subject to it. This cannot be fair, but would become a possibility were the amendment to be accepted.
It would also be unfair in another way. The sanction is designed to catch those who repeatedly cheat the benefit system. This is defined not by reference to whether there has been an over-payment of benefit or

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to the investigating officer's opinion on the claimant's motives, but by the decision of the court. The person must be found, or plead, guilty to benefit fraud not just once but twice. So it is a matter of fact that the person has defrauded the system twice. If a person disagrees that he has been so convicted, there is, of course, a right of appeal.
Having established the fact that a person has been twice convicted, the next question to be established is whether he is entitled to a sanctionable benefit and at what rate, if any, it should be paid during the period of the sanction.
As noble Lords will appreciate, and as we discussed during the earlier stages of the Bill, the effect on benefit will depend on the person's family circumstances. The standard rate by which income support will be reduced will be 40 per cent of the personal allowance—£20.90 at current rates. But that will be ameliorated where a member of the family is pregnant or seriously ill. In such a case benefit will be reduced by 20 per cent of the personal allowance—£10.45 at current rates. For those on income support and jobseeker's allowance (income based), housing costs will, if they are in rented accommodation, continue to be met through housing benefit. Again, there will be a right of appeal.
This package of safeguards ensures that application of the sanction will not put vulnerable people at risk. I believe that the element of discretion that the noble Earl is seeking to introduce in this aspect is, therefore, unnecessary. As I say, it is already the case that someone who is vulnerable will have legal protection, as we have specified, and will have a much reduced sanction as a result.
I understand what the noble Earl is seeking to achieve. However, I believe that he is turning the issue into a lottery as regards which benefit a person is receiving—for example, whether he is receiving income support or JSA—and what opinion the investigating officer might have of the claimant's motives, rather than leaving it to the independent judgment of the court. I believe that that would be an unwise route to follow. With that explanation, I trust that the noble Earl will feel able to withdraw his amendment.
4.30 p.m.
Lord Bruce of Donington: My Lords, before the noble Earl withdraws his amendment—
Baroness Amos: My Lords, I should remind my noble friend that this is the Third Reading stage of the Bill, and the Minister has already spoken.
Earl Russell: My Lords, if the noble Lord wishes to intervene before the Minister sits down, I believe that that would be in order.
Lord Bruce of Donington: No, my Lords.
Earl Russell: My Lords, I thank the Minister for that reply, which was both careful and thoughtful. Indeed, one would expect no less of her. Some parts of her response I take very seriously; some parts of it are
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worth considerable thought; and some I take rather less seriously than others. Clearly my amendment was not correctly drafted. I returned to the House after illness just two hours before the last time for tabling amendments. I offer the Minister my apologies in that respect.
The difference between the treatment of income support and JSA is clearly indefensible. Had I been minded—which I was not—to press the amendment, that would have been sufficient to dissuade me from so doing. However, when the Minister talks about lotteries, I am slightly less persuaded than she hoped. The noble Baroness says that my proposal would mean that two cases of benefit fraud would not be treated identically. I do not have any problem with that: two cases of dangerous driving are not treated identically, as we were painfully reminded yesterday. Two cases of dangerous driving are not necessarily equally iniquitous or equally serious. The same goes for two cases of benefit fraud.
I believe that it is perfectly proper, and has been for a long time, for sentences to be appropriate to the particular case before the court. That was all that I sought to achieve. I do not believe that there is any great problem involved. The Minister invoked the categories of vulnerable people. I believe that she knows that I am not quite as impressed by that as she would wish: first, because I do not believe that there is spare fat on income support to allow sanctions below income support level to provide adequate support for vulnerable people; and, secondly, I have never been able to persuade myself that vulnerability is entirely confined to those categories that happen to have been foreseen by the DSS.
In particular, I asked the Minister a question during the last stage. I have asked her previously and, as she has raised the point, I shall take the liberty of asking her this question again: can she tell us, before I withdraw the amendment, why in DSS thinking single people cannot be vulnerable? Is the Minister prepared to help me on that point?
Baroness Hollis of Heigham: My Lords, single people can be vulnerable if they have, for example, a disability. I am talking in broad, general DSS terms that do not apply specifically to this Bill. They can also be vulnerable if they are suffering from a severe illness and if they are pregnant. Similarly, former offenders, and so on, can be vulnerable. So single people can be vulnerable; but being single does not make them vulnerable. People may suffer from conditions that make them vulnerable, whether or not they are single or, indeed, are living in a family household.
Earl Russell: My Lords, they may not fall into a vulnerable category; they may be destitute without being vulnerable. This puzzles me. However, I do not believe that we shall move any further on the issue tonight. We shall have to return to it on a future occasion. The point is a general one, to which we shall also return in the future. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 8:
Page 13, line 11, leave out from second ("references") to ("to") in line 13.
The noble Earl said: My Lords, this is another amendment that leads us to consider whether the mandatory sentence is entirely appropriate. It relates to the provision that says that references to a conviction shall include cases where the court makes an order for a conditional discharge. I made the point a short while ago that one case is not necessarily as severe as another. It is a reasonable presumption that a case where the court has ordered a conditional discharge is not as severe as one where the court has thought that something rather more serious was wanted.
I wonder whether there is a slightly "slot machine" approach in the insistence that cases involving a conditional discharge shall be treated as being of exactly the same level of gravity as anything else. I shall listen with great interest to the Minister's reply. I beg to move.
Baroness Hollis of Heigham: My Lords, the effect of this amendment would be that any conviction resulting in a conditional discharge would not count as a "strike" for the purposes of these provisions. It would have two additional effects: first, it would exclude around a third of our successful benefit fraud convictions in England and Wales from the scope of these provisions—something like one-third of those cases where someone is found guilty by the courts in England and Wales result in a conditional discharge. Secondly, it would create a disparity of treatment in relation to the application of the provisions in Scotland. I know that the noble Lord, Lord Astor, is keeping a watchful eye on such disparities.
We have given most careful consideration to the points made by the noble Lord, Lord Goodhart, in Committee, which were raised again today by the noble Earl, Lord Russell. Where the court discharges the offender conditionally, we believe that that should be treated as a conviction for the purposes of these provisions. I could go into detailed argument on the matter, but it may assist the House if I give an example of the kind of situation that I have in mind.
I have before me some cuttings from the Derbyshire Times dated 22nd February 2001. One cutting describes how police were waiting when a woman tried to carry out her third benefit fiddle at a Post Office. I shall not give the woman's name, but she was given a replacement income support book after having reported her original book lost. She cashed one slip worth just under £100 from the "lost book", obtained a further £100 on a second visit and then called again for a third time at the Post Office. The police prosecuted. The woman admitted obtaining money by deception in November 1999. She had previous convictions for the same offence, for handling stolen goods and for conspiracy to defraud; and was given a one-year conditional discharge with £148 costs.
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Far be it from me to comment on the appropriateness of the sentence; indeed, like your Lordships, I do not have knowledge of the full background. All I have for reference is the press cutting from a local newspaper. I looked through the other cuttings and found several cases that resulted in a conditional discharge; for example, someone was given a two-year discharge and asked for 22 other similar offences to be taken into account, and so on. In such circumstances, where something like a third of all those people found guilty are given a conditional discharge, I honestly do not believe it to be reasonable for us not to count that as a benefit offence for these purposes. We want those who have been found guilty but are given a conditional discharge—as I say, far be it for me to say that this is not an appropriate sentence—to take it seriously and to know that a repeated offence will jeopardise their benefit.
However, there is also a Scottish dimension to this issue. In Scotland, the nearest equivalent to a conditional discharge is an admonishment. As with conditional discharges in England and Wales, around a third of our successful prosecutions in Scotland result in admonishments. An admonishment is basically a "telling off" by the court. No other penalty is applied and there are no conditions applied. But under Scottish law an admonishment is a conviction.
If, as the noble Earl suggests, a conditional discharge in England or Wales is not to be treated as a conviction, we have an inherent disparity of treatment in relation to Scotland. We face the possibility of two people being treated differently either side of the Border. We would have a disparity of treatment regarding cases where a court in Scotland makes a probation order which my amendment on Report removed. As your Lordships may recall, under the Criminal Procedure (Scotland) Act 1995, such cases are deemed not to be convictions. However, the position in England and Wales differs in that cases where the court makes a probation order are convictions.
Therefore, not only do I think it inappropriate that conditional discharges should not be counted as a conviction—I have just referred to one case but I could have referred to many more—but the noble Earl's amendment would open up the very disparities in treatment between Scotland and Wales that previous amendments on Report sought to overcome.
However, I may be able to help the noble Earl in one respect. We have thought long and hard as to whether absolute discharges should be treated as convictions—these are a much rarer category, perhaps 10 or a dozen a year—and have concluded that they should not be so treated. It may be valuable to the House to spell that out. Although the person is undoubtedly guilty, the granting of an absolute discharge is equivalent to the court saying, "This case should not have been brought before us". It may be, for example, that the offender was suffering from post-natal depression or had recently suffered a bereavement which came to light

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only at the hearing or in a pre-sentencing report provided by the Probation Service. Although at the time of the offence someone was in good health, at the time the sentence came to be determined that person may be found to be suffering from some serious illness.
In order to ensure parity of treatment both sides of the Border, we have decided—I hope that the House welcomes this—that absolute discharges should not be treated as convictions for the purposes of the benefit sanction. It is not on the face of the Bill and does not need to be given under the Powers of Criminal Courts (Sentencing) Act 2000. Given that we have responded to some of the earlier concerns of your Lordships and have made the decision that the very special cases of absolute discharges should be exempt, I hope that the noble Earl will feel that he has at least made some headway today and in the light of that will feel able to withdraw his amendment.
Earl Russell: My Lords, I thank the Minister warmly for those last remarks. It is a small mercy but it is a real one. For the rest, the argument is slightly less persuasive to me than perhaps the Minister hoped. I remember very vividly the farewell debate of Lord Taylor of Gosforth on the White Paper which preceded the Crime Sentences Bill. Noble and learned Lords packed the Cross Benches; they were almost solid. One speaker observed that it was impossible to know what had happened in a court case simply from reading the press reports. One could not know without reading the transcript. Every one of Her Majesty's judges nodded in unison as if the Mace had passed.
I think that applies to the case that the Minister quoted. It sounded a serious case but it raised two possibilities I have no idea whatever which of them might be appropriate. First, it is of course possible that the court may have been too lenient. Courts have been known to be so, as everyone else has. The other possibility is that there could have been a peculiar personal circumstance in the case. The remarks that the Minister made about post-natal depression in relation to the absolute discharge could, for example, perfectly well have applied in relation to the case we are discussing. I believe that neither she nor I has the first idea whether it did. It does seem to me to be inherent in just sentencing that it should be appropriate to the particular person who is in the dock as well as to the strict tariff slot-machine principle appropriate to the crime. We are not going in for a 10th century penitential in which an exact level of penance was laid down for every sin the confessor had imagined, no matter whether anyone had ever been known to commit it. There were some pretty strange sins in those days.
We are trying to do justice to individuals. There is something wrong with government thinking as a whole. However, it stretches far beyond the confines of any government or any party and, therefore, far beyond the confines of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Clause 13 [Interpretation of sections 7 to 12]:
Earl Russell Earl Russell moved Amendment No. 9:
Page 17, line 33, leave out (", credit or loan") and insert ("or credit").
The noble Earl said: My Lords, the amendment seeks to delete the words "or loan" from the list of things of which people may be deprived. It invites the Minister to set out what the position is under this Bill about sanctioning of Social Fund loans. Also I hope that she will provide—I have given the Minister notice of this—some explanation of the change in the guidelines on Social Fund loans of April 1999 which resulted in many more people than before being found too poor to receive them. We have had as yet in this House nothing like a full account of that. If the Minister wishes to tell me these two matters are totally independent of each other, I shall be glad to hear it. But as there is a serious possibility of a link between them, I think it could be useful to the House to hear it. I beg to move.
Baroness Hollis of Heigham: My Lords, I ought not to be tempted into a general debate on the Social Fund and its adequacy and success. All I would say is that since the discretionary fund was introduced in 1988 something like 17 million loans worth over £3 billion have been granted. In 1999–2000, over 2.2 million awards were made, providing help to more people than ever before. The gross budget for 2001. £596 million, was an increase of £60 million over the previous year's budget. I could go on and specify individual budgets. Both the number of people applying and the amount available to people in terms of the gross sums for the Social Fund have increased. Certainly all of the research from the CAB reports that the noble Earl will be familiar with suggests that the Social Fund by comparison with the alternatives, pawn shops, credit facilities and the like, is a safe, secure and affordable way for people to obtain a larger sum of money than they could normally have access to.
The amendment seeks to remove Social Fund loans from being counted as disqualifying benefits for the purposes of this part of the Bill, even though we know that fraud, particularly girocheque fraud, is not uncommon. I say at the outset that what we shall not do is sanction Social Fund loans. We accept that fraud may be committed against Social Fund loans, in which case it counts for the purposes of disqualifying benefit. But the cuts—that is, the sanctions—will not fall on the loan itself but on either income support or JSA in the first instance. I wonder whether I need to say more. We recognise that that threat may arise but we are protecting the loans for, I think, decent reasons; namely, that these loans are often paid in urgent or desperate situations and to sanction payment of them would be inconsistent with their purpose of seeking to prevent hardship. Therefore, we shall not do it.
Earl Russell: My Lords, the Minister has told me what I most wanted to hear. I thank her warmly and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
An amendment (privilege) made.
4.50 p.m.
Baroness Hollis of Heigham: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, the Bill which we are now being asked to pass is very different from the Bill which the House received and debated at Second Reading. The Bill is in many respects a great deal better. I do not propose to detain the House by specifying all the various concessions which the Government have made and which I believe are entirely justified. I believe that we have greatly improved the Bill. We must hope that the Commons will continue to carry out the role of scrutiny as a revising Chamber.
Some points are still outstanding. On human rights and data protection, no outside body will validate the justification of an inquiry into whether fraud is committed. However, we have made progress with regard to the code of practice and so on. My noble friend referred earlier to the problem about the appropriate official who will consider whether an inquiry is justified, given that there is no outside body.
There are further disputes about the burden of costs which will fall on local authorities. The local authorities state that only two-thirds of the costs are covered although the Government dispute that. My noble friend Lady Noakes dealt with the issue of costs to business. There are still concerns in that respect, and with regard to the Scampion report and so on. Will sufficient resources be devoted to dealing with fraud investigations when considering the increased revenue as a result of such investigations? It seems to be substantially greater than the costs of carrying out such fraud investigations.
Overall, I believe that your Lordships' House should be satisfied with the progress of the Bill. Perhaps I may express thanks for the help of my noble friend Lord Astor of Hever, the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell. We are glad to see that noble Earl has recovered from his indisposition. Perhaps I may also thank the noble Lord, Lord Grabiner. In a sense, he is the father of the Bill. The Minister has fulfilled the role of midwife. She has done so in a quite extraordinary way. A fairy godmother descended on the House in the form of concessions about codes of practice and whether or not some groups of suspects should be suspect, although in that instance it was clear that any vote would be lost by the Government. Generally speaking, the Minister has carried through the business in an entirely impartial way. On all sides we have sought to improve the Bill which is now significantly better. I do not oppose the Motion that the Bill do now pass.
Lord Brightman: My Lords, I should be grateful if I may take up a few moments of your Lordships' time before the Bill is passed. I wish only to record certain facts and to ask, with great respect to this House, whether we are properly fulfilling our duties as a legislative chamber.
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The general purpose of the Bill is to amend Part VI of the Social Security Administration Act 1992. Since that Bill was enacted Part VI has been amended by no fewer than 15 Acts of Parliament. It has grown from 12 to 26 sections to date. Your Lordships may gauge the extent of the amendments from the fact that Part VI now contains sections which are bizarrely numbered 110ZA and 121DA. We are used to that sort of enumeration on Marshalled Lists but I think it is the first time I have ever seen it in a statute.
The history of Part VI is unprecedented. It was first amended in 1992 by the Local Government Finance Act of that year; in 1993 by the Pension Schemes Act; in 1995 by the Jobseekers Act, the Pensions Act and the Criminal Procedure (Consequential Provisions) (Scotland) Act; in 1996 by the Housing Act; in 1997 by the Social Security (Recovery of Benefits) Act and the Social Security Administration (Fraud) Act; in 1998 by the Social Security Act and the Magistrates' Courts (Procedure) Act; in 1999 by the Access to Justice Act, the Social Security Contributions (Transfer of Functions) Act and the Welfare Reform and Pensions Act; and in 2000 by the Powers of Criminal Courts (Sentencing) Act and the Child Support and Pensions Act. Those are 15 amending Acts in all.
Of the original 12 sections in Part VI, all have been repealed or rewritten. Of the 60 subsections into which the original 12 sections were divided, only eight remain intact. Those figures take no account of the further amendments intended to be made by some six clauses of the Bill before us.
What is a person to do who needs to read Part VI of the 1992 Act in its amended form? He has two choices. He can sit down with a pen, a pair of scissors and a jar of paste, turn up each of the 15 amending Acts and rewrite Part VI in its amended form. That will take him a very long time. I know that because I tried it myself. His second choice is to seek access to a properly programmed computer and obtain a print-out of Part VI as amended by the 15 statutes I have mentioned. But that is not a wholly satisfactory course. During Committee stage of the Bill I asked the House of Lords Library if it could give me a print-out of Part VI as amended. It provided a print-out from an online database but regretted that it could not give me a printout which included the eight pages of amendments made by the Child Support Pensions Act 2000.
I think we should ask ourselves whether we are legislating in a proper form. When an Act, or a part of an Act, has been amended by 15 later Acts, should we not have a new Act rather than force the reader to rely on computer print-outs to which that reader may or may not have easy access and which may or may not be up-to-date? Is there any precedent for amending an Act for the 16th time, as this will be, and for having sections which need to be numbered 110ZA and 121DA?
Part VI of the 1992 Act has become a drafting quagmire. I do not blame the drafting fraternity. I am told that it is undermanned and underfunded. But something should be done to prevent a repetition of

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this sort of thing. We do not produce Acts of Parliament for ourselves but for those who will have to read them. That is where our duty lies. To sum up, I question whether we are providing a satisfactory service so far as concerns some of our statutes. I have ascertained that there are no current plans in the Law Commission for a consolidation Bill covering Part VI of the 1992 Act. I hope that I have not unduly delayed proceedings.
5 p.m.
Earl Russell: My Lords, the House is in the debt of the noble and learned Lord, Lord Brightman, who has drawn attention to difficulties in what I described on Second Reading as the acrostic method of legislation. This is not the Minister's fault. She saw the problem coming and on Second Reading her private office generously made available to us texts of the 2000 Act. I am sure that they would have done the same for the noble and learned Lord as well had they known he was concerned. However, that is not a satisfactory answer to his problem. The Minister is not answerable. I hope that she will convey the noble and learned Lord's remarks to whoever is answerable. We should return to the issue when whoever is properly responsible—I would be glad to know who it is—is present. In the mean time, this is no criticism of the Minister.
This Minister knows that I have misgivings about the Bill. This is not the time to debate them. However, as a model of how the parliamentary process should work once we have got into the Chamber, our proceedings on this Bill have been excellent. I thank the Minister, the noble Lords, Lord Grabiner, Lord Higgins and Lord Astor of Hever, my noble friend Lord Goodhart and the staff of our Whips' Office, who have done a great deal to get everything in order for us. Within the constraints to which the noble and learned Lord has rightly drawn attention, we have done our best. To that extent, in spite of the genuine and true remarks of the noble and learned Lord, the progress of the Bill still does Parliament credit.
Lord Elton: My Lords, as the Government Chief Whip is present, I wonder whether it is proper to ask whether the very important issue raised by the noble and learned Lord could be referred to the Procedure Committee.
Lord Carter: My Lords, as I understand it, this is not a matter for the Procedure Committee as such. The team involved in the statute law electronic database—I believe that that is what it is called—has done a great deal of work on the issue and that work is not yet complete. If it is of any interest to your Lordships, I asked the same question about eight years ago when I was in opposition.
Baroness Hollis of Heigham: My Lords, I wonder whether the noble Lord, Lord Elton, was able to give my noble friend a response.
I think that all your Lordships agree that we have made a number of important changes to the Bill, in particular on the circumstances under which
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information may be obtained under the powers in Clauses 1 and 2 and on the code of practice. Almost everyone who has taken part in the debate—although that is not a very large number of people—particularly from the Opposition Benches, owns an amendment or a change in the Bill. It is truly a House of Lords Bill, not just a government Bill.
I thank your Lordships for your unfailing courtesy and good humour and for our informed debates. Like others, I pay a particular tribute to my noble friend Lord Grabiner for his excellent report, which was the genesis of the measures in the Bill, and for his many interventions to share his expertise in our debates.
The noble and learned Lord, Lord Brightman, has made a good point, to which my noble friend the Chief Whip has responded. I am grateful to the noble Earl, Lord Russell, for explaining that we had recognised the problem and done our best to overcome it. ft is a bigger problem than the Bill can handle. We shall need consolidating legislation eventually. The electronic database of statute law that my noble friend referred to may well address those problems in future.
I am delighted that the Bill has gone through without Division, though with substantive change. I hope that it is treated in the same conciliatory and positive way in the other place.
On Question, Bill passed, and sent to the Commons.

International Criminal Court Bill [H.L.]
5.4 p.m.
Report received.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 1:
Before Clause insert the following new clause—

PROTECTION AND SAFEGUARD OF PRISONERS OF WAR
(" . This Act shall have effect subject to the making of an interpretative statement on ratification of the ICC Statute by Her Majesty's Government that measures for the protection and safeguard of Prisoners of War under Article 8 taken in armed conflict of an international character, is to be reviewed by members of the Assembly of State Parties for redefinition and clarification.").
The noble Lord said: My Lords, the amendment is concerned with war crimes committed against prisoners of war taken in armed conflict, as defined by the provisions of Article 8 of the ICC Statute, which the Bill will incorporate into our domestic law. There is no precedent for delaying a Bill after enactment as proposed by the amendment, which has been accepted by the Table. The procedure of your Lordships' House is a matter for the House and has never been inhibited by precedent.
The amendment would commit the Government to making an interpretative statement on ratification in the broad terms of principle proposed. Later on, they would have to make a detailed proposal, which, if accepted, would be implemented by the Assembly of State Parties under the special regime on the

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interpretation and application of Articles 6 to 8 contained in Article 9. Those articles are set out in Schedule 8. Article 9, which makes provision for the special regime, is on page 66 of the Bill.
Under Article 9.1, the preparatory commission for the ICC has already prepared a draft text of proposals to assist the court in the interpretation and application of Article 8. The document is called Draft Text of Elements of Crimes and is dated 6th July 2000. When that document has been approved by two thirds of the members of the Assembly of State Parties, it will become the substantive instrument on the interpretation and application of Article 8.
The amendment would commit the Government to making proposals for amendments to the Elements of Crimes document, covered under Article 9.2. The draft text would take effect after consideration by the preparatory commission and approval by a two-thirds majority in the assembly. It would have to be submitted some time before 2007, when the next meeting of the assembly would be convened for that purpose.
The form and content of such proposals for amendment, which the Government would be committed to making and on which they would no doubt wish to consult, is in no way pre-empted by the amendment. It may not be apparent on the face of the Bill, but our domestic courts will apply Article 8 as interpreted by the Elements of Crime document, as amended from time to time.
In a letter of 26th February, the noble Baroness, Lady Scotland of Asthal, offered to bring the issue of measures of safeguard and protection for prisoners of war to a review committee, which I assumed to be the meeting of the assembly in 2007, if there was general concern.
At this stage, I should like to pay tribute and express my personal gratitude to the noble Baroness, the noble and learned Lord, Lord Williams of Mostyn, and the officials of the Foreign and Commonwealth Office and the Home Office for the help that they have given me in this affair. Without it, it would have been very difficult for me to make sense of these submissions, if they make sense at all.
The spirit of that offer of an undertaking is much appreciated. However, it does not deal with the essence of the problem. For reasons that are apparent—if I may, I shall refer to those in a moment—concern already exists in relation to the Elements of Crimes, the draft of which, dated 6th July, has been approved. Curiously enough, a concern, which will become apparent later, already exists on the part of the forces with regard to the subject of prisoners of war. It was referred to in the papers over the past two days.
If the Government are unwilling to make an interpretative statement on ratification, an undertaking will be sought. It would be wholly effective and very simple to apply. In terms, it would propose amendments to the Elements of Crimes under Article 9.2 in whatever form or content the Government may choose. That would be wholly
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sufficient and wholly relevant, and would deal with the present matters of concern. On that basis, there would be no need for the Bill to be amended.
The justification for this amendment and for seeking such an undertaking is that there is a need for review by the assembly under Article 8 as to the redefinition and clarification as it stands and as it shall be interpreted by the Elements of Crimes of 6th July.
First, there is a disparity of provision—I shall come to the detail later—as between armed conflict which is of an international character and that which is not of an international character. Under the current conditions of armed conflict, there is a need for redefinition and clarification. There is a concern that account must be taken of the new dimension of armed conflict—that which is unmanned, controlled by robotics, sensors, lasers, radar, or what have you—in which people will always be taken prisoner. There is no proposal to reconvene the high contracting parties to consider amendments to the Geneva Conventions, which are also subservient to a similar ambiguity.
One finds a veritable cat's cradle of complexity under Article 8 on page 65 of the Bill and, in particular, although your Lordships do not have the document, on pages 21 and 23 of the draft Elements of Crimes document. In sub-paragraphs (v) and (vi) of Article 8.2(a) on page 63 of the Bill, one will find the only two provisions applicable to prisoners of war who are taken in armed conflict of an international character.
That is further defined at page 21 of the Elements of Crimes as referable to "armed conflict" and "international armed conflict", as if such were distinct concepts. If, as I understand it, according to public international law, armed conflict of an international character is dependent upon having been heralded by a formal declaration of war between nation states, does that govern this disparate further definition?
Again, Article 8.2(b) on the same page of the Bill appears to be of general application concerning serious violations of the law and customs of war in "international armed conflict". In Article 8.2(b)(xxi) on page 65, outrages on personal dignity, humiliating and degrading treatment are described, but there is no reference to prisoners of war as such.
Finally, at page 33 of the Elements of Crimes document, there is express reference to armed conflict as if it were distinct from international armed conflict. One will see that Article 8.2(c) on page 65 of the Bill is also of general application and applies only to armed conflict which is not of an international character. Again, there is no reference to prisoners of war as such. I shall not suggest that noble Lords should look at pages 37 to 48 of the draft text of the Elements of Crimes document; in any case, they will not have a copy of it.
This matter is incredibly complex and raises a question which requires clarification. Without seeking an answer, one may well ask: what is the concept of armed conflict, as distinct from armed conflict of an international character, as used in Article 8 and interpreted by the draft text? Which provisions apply when airmen are shot down when operating under the

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assumed authority of the United Nations or when serving under the aegis of NATO in a rapid reaction force and are taken prisoner?
Albeit that the ICC has jurisdiction to develop its own body of jurisprudence, is there not an overwhelming case for review with a view to redefinition and clarification? Is not the initiative proposed by this amendment—to seek to amend the Elements of Crimes text—worthy of being taken by our Government? Would not that be of assistance not only to the [CC but to our own courts—the protecting power—the prisoners and diplomatic intervention on their behalf?
I thank the national ex-prisoners of war association for its support. It has the merit of general ongoing permanency, which members of the Colditz Association, such as I, are unable to share. I have spoken to no one, save those in time to come, who would reap the benefits. I beg to move.
5.15 p.m.
Lord Archer of Sandwell: My Lords, I believe that we all appreciate the concerns which underlie the noble Lord's amendment, which he raised very properly at Second Reading and again in Committee. It was on an issue to which he brings his own experience arising from a distinguished record of service.
The problem is that whatever may have been wrong with the text of the statute, that is not something which we can rectify by an amendment to this Bill, as the noble Lord very fairly recognises. What I understand troubles the noble Lord is that in Article 8.2(a) the mention of prisoners of war applies only to two very specific kinds of offence and not to the others and that in Article 8.2(c), as spelled out in the Elements of Crimes, it does not specifically protect those who are taken as prisoners of war in internal conflicts.
If they were unprotected, that would certainly be a defect which needed to be addressed. But as my noble and learned friend the Attorney-General explained in Committee, the definition of those protected is wide enough to include those who are taken as prisoners of war whether in international or internal conflicts. In Article 8.2(a) it appears that offences committed against anyone are brought within that article, and that would automatically include prisoners of war.
In Article 8.2(c) I would have thought that they would be,
"persons taking no active part in the hostilities".
Therefore, I hope that the anxieties are misconceived. But I appreciate that if a statute is effectively to protect a category of potential victim it is not sufficient that offenders may in fact be prosecuted. It must be clear in advance to potential transgresssors that offenders are liable to prosecution. It may have been better if that had been done by a clearer specific inclusion in the text.
It may very well be that had the statute been drafted by a committee of your Lordships' House, some of the provisions would have been drafted differently. But a text produced by an international conference is likely
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to reflect the give and take which inevitably obtains on those occasions, otherwise there would have been no statute.
As I understand it, what the noble Lord seeks to achieve is to ensure that his concerns, including the text of the Elements of Crimes, will be addressed at the first reasonable opportunity. I would certainly support his appeal to my noble friend, first, to set on the record for all to see an assurance that the existing text does in fact cover those taken as prisoners of war and, secondly, to give an assurance that the text will be considered at the first reasonable opportunity.
Having said that, I hope that the noble Lord is not minded to press his amendment to a Division today because it would almost certainly be defeated. That might well be misunderstood by those on whose behalf he has raised the matter as amounting to a rejection of the argument, not as regards its procedural aspects, but on the merits of the content. That would not reflect the sympathy which I am sure the noble Lord's amendment has attracted in all sections of this House.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I say straightaway to the noble Lord, Lord Campbell of Alloway, that the sympathy referred to by my noble and learned friend Lord Archer of Sandwell is very much felt on this side of the House generally. We understand the importance which the noble Lord rightly places on this issue, and agree with him. The difference is that the Government's view is that any statement made in the terms suggested by the noble Lord, Lord Campbell, would in fact hinder the protection of prisoners of war rather than advance it.
The provisions of the Bill which deal with prisoners of war reflect the terms of the Rome Statute, which in turn reflects the state of international law as it is. If the law is insufficient—a point about which we are not convinced—then it is the law itself—the Geneva Convention and the additional protocols—which needs changing rather than the Rome Statute. It is our belief that the wording of that statute, linked with the additional definition provided by the Elements of Crimes to which the noble Lord has already referred, is sufficient both to meet the noble Lord's concerns and to allow the judges of the International Criminal Court flexibility to meet new circumstances as they arise. We understand the concern expressed by the noble Lord about the new forms in which those problems might manifest themselves. A statement in the terms suggested by the noble Lord, Lord Campbell, would suggest otherwise and therefore cast doubt on the efficacy of the existing provision.
However, we should like to make it clear that we share the noble Lord's concern for the plight of prisoners of war and indeed all prisoners detained in conflict situations. I can assure him that the Government will watch closely the developing jurisprudence of the International Criminal Court. Should it appear, contrary to our current belief, that there are inadequacies in the relevant provision, we shall raise the matter in all appropriate fora including

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any review conference called under Articles 121 and 123 of the statutes to ensure that the interests of prisoners of war are properly protected. With that assurance, I hope that the noble Lord will not feel it necessary to press the amendment.
Lord Campbell of Alloway: My Lords, I am very grateful to the noble and learned Lord, Lord Archer of Sandwell. I am extremely disappointed that the matter does not seem to be understood. Although I agree that the texts do represent the state of public international law as it is today, I disagree that it is clear and capable of ready understanding. I take the view that it quite clearly warrants clarification, review and redefinition.
The Government will not accept that, so I cannot ask the noble Baroness to give an undertaking on that basis because she will not and cannot. But I ask for an undertaking to submit proposals for amendments to the Elements of Crimes if the Government cannot give an undertaking to implement the amendment as it stands.
That leaves open the question and does not commit the Government to accept my view or they mine. But thinking about the purpose of this amendment, I ask the Government to undertake to submit proposals for amendments to these Elements of Crimes at some appropriate time before 2007 in whatever form and howsoever phrased as the Government wish without any element of pre-emption. If the Minister would give me an undertaking in those terms, I would assuredly be prepared to withdraw the amendment. If she wanted time to consider the matter, I should withdraw the amendment on the basis that on Third Reading there would be a definitive decision on the matter.
Baroness Scotland of Asthal: My Lords, I hope that I made it clear to the noble Lord that, as I said, the Government will, if there are inadequacies in the relevant provisions—that is contrary to our current belief—raise the matter in all appropriate fora, including any review conferences. As noble Lords know, the next such conference is likely to take place seven years hence. If we need to, we will raise the issue at that conference.
Lord Campbell of Alloway: My Lords, if the Minister receives representations from the Ministry of Defence on behalf of the forces, I assume that they will be considered by the Government. Is that right?
Baroness Scotland of Asthal: My Lords, we will obviously take into account all representations that are made to us when we consider whether the rules adequately address the difficulties. I have already said that we share the noble Lord's concerns that the rules should properly protect prisoners of war. We believe, contrary to the noble Lord, that they currently do so. If we are found not to be right about that—if inadequacies are highlighted—I assure him that we should wish to address those inadequacies and that we
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should do so in any and all of the appropriate fora, including the review conference that will meet in due course.
Lord Campbell of Alloway: My Lords, I am obliged to the Minister for that reply and for her great help and sympathy throughout. On the understanding that representations from the MoD would, with other representations, be taken into account, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 2:
Before Clause 1, insert the following new clause—

JURISDICTION OF THE COURT
(" . This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.").
The noble Lord said: My Lords, the purpose of the amendment, quite simply, is to enable the Government to proceed in accordance with Article 124 of the Rome Statute, which is entitled, "Transitional provision". It allows a state, on becoming a party to the statute, to declare that for a period of seven years after the entry into force of the statute, it does not accept the jurisdiction of the court with respect to the category crimes that are referred to in Article 8. That purpose is at the forward edge of the amendment. That means that the amendment would not conflict with the Rome Statute. The Government have repeatedly made it clear that they are anxious to preserve in the Bill the Rome Statute's wording almost to the letter.
I want to discuss for a few moments the various wider concerns and anxieties that motivated me to move the amendment. I make it clear at the start that no Member on this side suggests that war criminals should be shielded in any way or not brought to justice for the hideous crimes that they perpetrated. I also recognise, as Ministers made clear during the Bill's Committee stage, that the jurisdiction of the ICC comes into play only if British courts—service courts or civil courts—are unwilling to investigate a particular case. I also recognize—I take a phrase from a letter that the noble Baroness kindly sent me about these matters—that the Government's aim is to achieve a delicate balance between protecting service personnel and making sure that the ICC has teeth. We must bear all of those considerations in mind.
Although we have long accepted the Geneva Convention and its protocols, we are seeking to introduce into our own statute law the long list of war crimes in Article 8. That is a major change to the legal landscape. I noticed that 10 Downing Street made a comment of a dismissive kind—it said that nothing had changed and that we had long accepted the Geneva Convention. I am afraid that that shows that

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No. 10 does not understand the situation and is misinformed: we are dealing with something new in this context. When the change goes ahead, we shall be supporting a higher jurisdiction and placing on our statute book the long list of war crimes.
Legitimate anxieties have been aired recently in newspapers; by members of the Armed Forces. Yesterday's Guardian quoted various defence personnel, one of whom—a senior defence source—said:
"Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals".
He added that Ministers were "very aware" of such a prospect. The article stated that that defence source was concerned in particular about,
"conflicts and operations. short of a full-scale war, even—paradoxically—where British forces were engaged in support of the UN".
Another senior defence source, who was further identified in another newspaper as a naval defence source, said,
"future rules of engagement could…prevent a British warship from attacking a hostile vessel until it was too late".
Attention was drawn in particular to several provisions in Article 8. The Guardian referred to paragraph 2(b)(iv), which appears in Schedule 8 to the Bill. That paragraph refers to:
"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".
One can surely understand the concerns that lie behind that provision. I am sure that the Minister accepts that such subjective phrases would have to be given clarity and established in the heat of urgent action or battle. How can one decide what will be "excessive" damage when an operation is about to be launched or is under way? Surely such provisions place front-line personnel and their superiors—whose position we shall come to later—in considerable difficulties.
That paragraph is not the only one that appears to use highly subjective phrases. We could live with such provisions when they were part of the Geneva Convention and of international law in the broader sense. Now that they are being introduced into our own statute law it is necessary to define somewhat more clearly, if we can, exactly what is meant by, for example, "military objectives". Paragraph 2(b)(xiii) of Schedule 8 refers to:
"Destroying or seizing the enemy's property unless such destruct ion or seizure be imperatively demanded by the necessities of war".
What is meant by that? Just after the Second World War, a good deal of enemy property was being seized after the end of hostilities. If the Bill had been in place then, would such seizure have been a war crime? Our European Union partners obviously have had the same doubts about those matters. The Republic of France has placed very clearly in the ratification
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document a statement, a declaration, under Article 124 that,
"the French Republic declares that it does not accept the jurisdiction of the court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory".
It is, of course, permitted to do that for seven years or for a shorter time if it so decides under the statute. Is that not an example which we should ponder very carefully before dismissing it? Is it not an example that we should copy?
Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. I am sure that he would not want to mislead the House. He said that our European partners were having misgivings.
Lord Howell of Guildford: My Lords, I said "partner".
Lord Archer of Sandwell: My Lords, I thought the noble Lord said "partners". As long as it is clear that it is only France which has found it necessary to limit its acceptance of the jurisdiction in that way and none of our other European partners has found it necessary to do so.
Lord Howell of Guildford: My Lords, I am afraid that the noble and learned Lord did mishear me. I said "European partner"—France. I hope that I was giving it the right epithet. France has indeed taken that stance. Those matters are very clearly set out in the ratification status document which I am sure that noble Lords have had time to study together with. in the French case, a number of other declarations or interpretations about items under the war crimes list, such as those concerning military advantage or the definition of what is and is not a military objective, which is obviously a highly controversial and very difficult matter to decide.
This amendment has a certain air of defeatism about it because it implies that it may not be possible to alter any of this; that it is all set in stone, despite the French readiness to make declarations; and that, therefore, the best thing would be to stand aside from that whole categorisation of war crimes until a lot more thinking has been done and until more opportunities have been obtained to understand the full implications.
If, nevertheless, the Government do not think we should adopt the same route as the French, a number of further questions arise. For example, in the heat of battle, it might lead to some dithering while people decide whether an act might lead to something which might lead to possible charges of war crimes; or that something had been done not unintentionally but intentionally which led to the killing of civilians, or whatever the unpleasant outcome might be.
In the New Zealand Parliament, it was asked whether the government were prepared to give indemnities to armed forces personnel who found themselves in those agonising situations and found they had committed war crimes. It was also asked in that parliament, and it is worth asking today, how one

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defines "excessive damage". Is there to be any attempt in declarations at the time of ratification to define "excessive damage"?
Earlier I read out a report from the Guardian. It is a newspaper report but it was in quotations from defence sources. That report said that Ministers were aware of all that. Will the Minister explain to what extent she is aware of those concerns and how she feels they should be responded to?
The Canadian nation took this through their parliament. Canadians are very keen on this measure. They see all its virtues, many of which are very clear. Nevertheless, they recognised that there was a new situation in which new crimes now existed on their own statute book and, therefore, that it was right that exceptional steps should be taken to publicise to the nation at large, to its citizens and above all to its armed forces and public servants, the nature of the possible breaches of state obligations and the nature of the new ICC legislation and to ensure that citizens were properly informed by state agencies. What is to be done about that?
Clearly, there are complex—and very complex, as my noble friend Lord Campbell of Alloway remarked on an earlier amendment—issues here. The law is complicated and will become more complicated. Yet, it has to be applied often in very heated, rushed, urgent and even critical situations. So the need for publicity is extremely important and this is the appropriate stage in our debates on the amendments to raise it. With those comments as to why we are tabling the amendment, I beg to move.
5.45 p.m.
Lord Lester of Herne Hill: My Lords, in 1958, a year after the end of the not very glorious military career of Gunner Lester AP and Second-Lieutenant Lester, Royal Artillery, Sir Hersch Lauterpacht, later the British judge on the International Court of Justice, revised the Manual of Military Law that national service and professional soldiers and officers were bound by in a very important way. As far as I am aware—and my colleague, Professor Sir Ian Brownlie, QC, who is a real expert in this area believes this to be the case—the Manual of Military Law has been updated from time to time.
In Chapter 14 of that manual, under, "Means of securing legitimate warfare", Sir Hersch Lauterpacht set out in detail the Hague Rules on state responsibility and the Geneva Conventions dealing with individual criminal responsibility for war crimes and, in detail, explained the concepts, the punishments, individual responsibility, the way in which the defence of superior orders was no defence and the responsibility of commanders for war crimes committed by subordinates. All of that was in 1958.
There is nothing new in the ICC statute or in this Bill in relation to the main ingredients of these international legal principles. All that is new is that an international criminal court is being set up to have primary jurisdiction, working in partnership with
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national courts. Indeed, even that was foreseen by Sir Hersch Lauterpacht as long ago as 1944 in an article I read in the British Yearbook of International Law. That is my first point.
Secondly, I should like to refer to the extraordinary article, to which the noble Lord, Lord Howell of Guildford, also referred, which appeared in the Guardian, on its front page, no less, ascribing to top military commanders various views which were so inaccurate, incomplete and misleading that I cannot believe that any of them could really have been so ignorant.
There are often criticisms of members of the legal profession and many of those criticisms are justified. When my profession speaks on its own behalf, it often speaks in the language of self-interest masquerading as public interest. All professions and jobs tend to do that. When I read those views in the Guardian, I cannot help thinking that the honourable profession of soldier, sailor and airman or woman may be subject to the same problem; namely, confusing self-interest and public interest.
I refer briefly to the article which has already been commented upon. It suggested that the Bill could prevent British peacekeepers from carrying out their tasks effectively. I do not understand that at all. As I say, the law we are dealing with is old and well-established international law, conventional and customary.
It is said that the rules are made in places other than our capital city—a reference to Brussels, above all. I do not know whether those top brass spokespersons are thinking of rules about sex discrimination, which they do not like, as applied to the Armed Forces. Those are made in Brussels. But none of these rules can be laid at the door of the European Union or Brussels at all.
The article states:
"Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals".
Again, that is a complete farrago of the accurate position. Then it is said that the safeguards are not sufficient. The article continues:
"We have got to [ensure] there is a framework that does not prevent us from doing what we set out to do".
The framework is as old as the Geneva Conventions and the Hague rules. Then it states:
"when we see bits of European legislation [the military] should not be forced to follow it slavishly".
I repeat, this is not even European legislation.
The final point is that the noble Lord is right to say that it is open to the United Kingdom to follow the bad example of France. Of the 29 countries that have so far ratified the statute, I believe that only the French Republic has taken advantage of Article 124. The seven other member states of the European Union have not taken that approach. There is no doubt that during the negotiations there was heavy pressure on the negotiating team from the French ministry to take advantage of that option. But I find it difficult to understand why on earth it would be in the interests of the Armed Forces of the United Kingdom to reject, for seven years, the beneficial provisions of the

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International Criminal Court statute on the basis of objections that are really objections to the restraints on warfare being committed in ways that engage criminal responsibility.
Last but not least, many of the war crimes defined in Schedule 8 and Article 8 of the statute are already part of our domestic criminal law, so there is nothing new in that. For those reasons we on these Benches are firmly opposed to this amendment.
Lord Goldsmith: My Lords, I too oppose this amendment, while entirely recognising the legitimate concerns that have been expressed. First, what does it amount to? It amounts to a proposal that for a period of seven years United Kingdom nationals should not be subject to the jurisdiction of an international court that otherwise we should support and promote with respect to one category of grave crimes against the peoples of this world with which the statute is concerned. Why should there be that escape from accountability for that category of act? Why should we allow war crimes to go unpunished by the International Criminal Court? These are not new laws.
As was made clear by the noble and learned Lord the Attorney-General, the provisions of Article 8 relating to war crimes are to be found in existing international law. That is clear if one looks at Article 8, which is set out at page 63 of the statute:
"(a) Grave breaches of the Geneva Conventions of 12 August 1949"—
and they are enumerated—
"(b) Other serious violations of the laws and customs applicable in international armed conflict"—
that is existing law. Then particular instances of that are enumerated.
I believe that the Geneva Conventions were conventions that this country took a proud part in drafting, promoting and adopting. For many years we have accepted them. It is in our interest that others should obey them too; if our soldiers are involved in conflicts abroad, it is in our interests that they should be protected and that we should know that they are protected from war crimes, as our people will be so protected.
I ask, as I have previously during the course of this Bill, what we would say if another country, whose reputation for human rights or whose reputation for respect for individuals is not as great as we believe ours to be, were to adopt a similar course? Suppose they were to say, "We are not prepared to accept the jurisdiction of this court in relation to our conduct".
The fact that modern weapons are capable of striking deep into territory and causing untold damage is not a justification for licensed barbarism; it is more a reason why we should look for a clear standard of international law to control international war.
What are the defences and the safeguards against the concerns to which the noble Lord refers? I believe that there are three. First, the definitions in Article 8 are clear. With respect, I do not accept that they are subjective; they are objective. I take the example quoted by the noble Lord and stated in the Guardian
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newspaper of sub-paragraph (iv) of Article 8(2)(b). It contains four critical elements that must be considered. Item one relates to,
"Intentionally launching an attack";
item two is "in the knowledge"; item three is,
"that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would he clearly excessive";
and item four is that it must be clearly excessive,
"in relation to the concrete and direct overall military advantage anticipated".
I would refer, not to my view, but to the view of someone who knows far better than I do how such matters operate in international law and in military matters. I had the benefit of hearing from General Rogers who is a former director of the Army Legal Services, who gave a briefing some time ago on this matter. In relation to this particular concern about military operation staff he said:
"However, the qualifying words 'intentionally', 'in the knowledge', 'clearly' and 'overall' should ensure that only the most obvious eases would come before a court and that military commanders doing their best in difficult circumstances to comply with the law of armed conflict will have nothing to fear".
That is the view of someone who understands how military operations work and has the interests—as I am sure he has—of servicemen at heart. That is a view that I would accept.
Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. Is he of the view that the bombing campaigns by the Royal Air Force in the Second World War would be clear of any possible action or would they be caught by this type of legislation?
Lord Goldsmith: My Lords, it is not necessary to consider what the position would be in relation to events that took place before this statute comes into effect. As has been made clear, the statute is not retrospective. I would also say that it is not to be gainsaid that the statement in Article 8—I do not understand that the noble Lord, Lord Howell of Guildford, disputes this—represents existing international law. He rightly says that there will be a new procedure for punishing it. I say that if this is law, it should not go unchecked and unpunished.
Lord Tebbit: My Lords, of course I understand that this is not retrospective, but I am trying to persuade the noble Lord to say what kind of crimes would be caught by this legislation. If he does not like the example of the Second World War bombing campaigns, would the attacks on civilian targets in Serbia, which were much more recent and could possibly happen again at any time, be caught by this statute?
Lord Goldsmith: My Lords, as I recall, at Second Reading the Attorney-General dealt clearly with that point. I entirely accept his expert view. He said that the conduct in which this country was involved in relation to those problems, of which one is rightly proud, did not in any way infringe existing international law. This statute will not change that.

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I turn to the second safeguard in relation to the matters which have been raised. No procedure can take place under the statute if this country is prepared itself to investigate and if necessary to act in relation to conduct by United Kingdom nationals. The principle of complementarity, as referred to in Committee, means that unless we are unable or unwilling to deal with conduct by a UK national, it will not be for the International Criminal Court to deal with it but for our own courts.
The third safeguard is most important. No investigation will take place unless an independent prosecutor decides that there are reasonable grounds for doing so (Article 15); no investigation will take place unless that view is also shared by an independent pre-trial chamber (Article 15); no warrant will be issued unless an independent pre-trial chamber is of the view that there are reasonable grounds (Article 58); and, ultimately, there will be no conviction unless an independent court is of that view.
The noble Lord, Lord Lester, is right in saying that the only country which has pursued this route is France. Our European Union partners otherwise have not, although they, too, engage in peacekeeping activities abroad. The French example—I say nothing bad about the French and have the honour to be a member of the Paris Bar—is not one that we should follow. I do not believe that the Government want to follow it and I hope that the noble Lord will not invite us to follow it by pressing his amendment.
6 p.m.
Lord Lamont of Lerwick: My Lords, I want briefly to support my noble friend on the Front Bench. I appreciate the good intentions behind the Bill. I do not in any way decry them but, as I indicated on other occasions, I have a number of anxieties about the Bill.
There was something missing in the contributions of the two noble Lords who spoke against my noble friend's amendment; there was not a single mention of the United States. We are told that all our European partners, other than France, will ratify the statute and pass legislation immediately. But of course the other European countries are not really greatly engaged in peacekeeping.
Surely, the important point is that the United States, which is involved in many more significant peacekeeping operations, has made it clear that it will not participate in the court. I do not know of a single Senator in the United States who has urged the ratification of the legislation. Even President Clinton, when he ratified the statute in the dying days of his presidency, said that the statute required amendment. He did not recommend to the Senate of the United States that it should ratify the legislation in its present form.
I make that point because noble Lords who have spoken hitherto sought to imply that the fears which my noble friend on the Front Bench expressed about the security of our Armed Forces are all unreal. But they are precisely the grounds on which there is very
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strong opposition to the court in the United States. We are sitting here solemnly discussing the issue and want to ratify and establish a court of which Iran is a supporter but not the United States. Is not that an utterly unreal situation?
Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. I wonder whether I understood him correctly. It is true that France, to the extent it has entered the declaration, and the United States are almost alone among more than 100 countries which believe that the court is an appropriate court to express the international view on these matters. However, was the noble Lord saying that our other European partners are not active in peacekeeping? Was he referring to Italy, Luxembourg, Belgium, Spain, Germany, Austria and Finland? Do they not participate in peacekeeping activities?
Lord Lamont of Lerwick: My Lords, to some extent they have all participated. The Italians provided support in the operations against Serbia. However, it is plainly obvious that the United States carries a vastly greater burden and does far more for international peacekeeping than do all those countries put together. I do not mean to be insulting to Luxembourg, but I do not believe that its contribution to peacekeeping is on quite the scale of that of the United States. Of course, it is because of the United States' size and military capability, but the United States is entitled to be worried about what might happen to its troops when it fulfils these international duties.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. As he referred to me as one of those who spoke against the amendment and said that I omitted the United States, I wonder whether he is aware that the problem with the United States goes back to 1945. It is the problem of persuading a very conservative Senate to ratify such international instruments. That problem delayed the International Covenant on Civil and Political Rights; it meant that the genocide convention was not part of United States law for far longer than in any other democracy; it applied also to the torture convention and to a variety of humanitarian and international human rights treaties.
Is the noble Lord then telling us that the United Kingdom's policy should be to be wagged by the United States conservative Senate in this respect?
Lord Lamont of Lerwick: My Lords, the noble Lord referred to the United States "conservative" Senate but he knows as well as I do that it is evenly balanced. I do not know of a Democratic Senator who has voiced public support for the court in the form that it is today. Opposition to the court is extremely strong in the United States. The President has said that he is against it; Mr Rumsfeld has said that he is against it; the Secretary of State has said that he is against it; and numerous Senators have said that they are against it. They are against it because of the risk to American troops in peacekeeping operations.

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The noble Lord, Lord Lester, in his, as always, elegant and learned speech, said, "Ah, but there is nothing new in all this. The law is the law is the law. This has been with us for donkeys' years. We had the Geneva Convention and so on". But what is new is the establishment of a permanent court. What is worrying the United States is that allegations—not necessarily justified—could be made against its personnel in peacekeeping operations.
My noble friend Lord Tebbit gave some examples. These things are always arguable. I had the gravest doubt about the bombing of the Novi Sad Bridge during the action against Serbia. I could not see the military justification. All right, one can say that troops can use bridges but it was far from the site of the military action.
Perhaps I may give another example—not one which specifically involves the United States. I can easily imagine how a charge could be made against Britain and the United States in relation to sanctions against Iraq. I can easily imagine how that could be constructed into a charge of genocide. We are told that approximately half a million children are dying each year. I am not saying for one moment that I agree with that, but I can imagine how such charges could be brought.
Such fear lies behind the perfectly reasonable fears of the United States. France, in a typically cunning French way, has indicated its reservations. The United States has done so in a much more open way. I disagree with those noble Lords who say that those fears are baseless. If they were baseless, I do not believe that the United States would have taken the stance that it has—unequivocally and with a great deal of support in the United States.
Lord Goldsmith: My Lords, before the noble Lord sits down, perhaps he would be kind enough to deal with two matters. First, does he accept that Article 8 represents existing international law in relation to war crimes? Secondly, is it his view that that international law should be upheld?
Lord Lamont of Lerwick: My Lords, I believe that Article 8 does express existing law. However, as I said in Committee, it is my understanding that several of the definitions have been altered. I am not in any way complaining about that, but I believe that what the noble Lord says is broadly right. What is completely new is the establishment of a permanent international court.
I am not sure about the noble Lord's second question—
Lord Goldsmith: My Lords, my question was whether the noble Lord agrees that that international law should be upheld.
Lord Lamont of Lerwick: My Lords, of course I believe that international law should be upheld.
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However, for reasons upon which I shall enlarge later, I have the greatest reservations about the establishment of this court.
Baroness Williams of Crosby: My Lords, I apologise for my inability to take part earlier in Committee. I should like to address the attitude of the United States. The United States is a country with the greatest possible respect for law. I do not, therefore, believe that to water down the International Criminal Court is the appropriate way to deal with the current objection to it, in particular by the US Senate. It is perhaps worth mentioning that President Clinton signed the treaty as a preliminary to ratification by the Senate, which may not take place.
A substantial change in American opinion is under way, if not yet at the level of the Senate certainly in some other quarters. Noble Lords may have read an extremely important article last month in the National Journal, which is perhaps the most authoritative publication on the proceedings of Congress and activities in Washington generally. That long article dealt with how attitudes in the Pentagon and elsewhere had changed as a result of the involvement of the United States in certain peace-keeping activities, notably in Bosnia and Kosovo. Addressing the experiences in KFOR and, before that, Bosnia, the article pointed out that senior military leaders increasingly pondered how military tactics had to change, and be substantially restrained, as a result of taking part in peace-keeping activities. Many of us in this House, including myself, saw this process take place some 20 years ago in Northern Ireland when our own military personnel began to learn how not to be warriors, as it were, but essentially powerful policemen in dealing with a civilian clash—if you like, a kind of religious or ethnic conflict—between one group and another. As the article makes plain, that has been taken on board by the US military in respect of the limits within which it is free to act.
As to setting out international law once again in terms of the International Criminal Court, as the noble Lord, Lord Goldsmith, pointed out, it is quite clear that one must reassert the position in the face of an extremely troubling evolution of certain civil and international conflicts in other parts of the world. It is troubling that today the ratio of military to civilian deaths (1:10) is almost the reverse of the position at the beginning of the past century. The deliberate targeting of civilians, in particular children, pregnant women and some of the most vulnerable people in society, is a terrifying characteristic of some recent major conflicts, particularly internal ones. The war in the Democratic Republic of Congo which begins to take in more of its African neighbours is one example, but there are many other equally troubling ones.
Many of us believe it to be of the greatest possible urgency that in relation to those who are engaged in peace-keeping activities an attempt is made to establish an international rule of law that applies to military as well as civilian actions. I believe that in the United States there is beginning to be a substantial shift of opinion in consequence of that country's own

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involvement in peace-keeping activities. It would be a disservice to those in the US minded towards international action if we watered this down and failed to provide ourselves with an example. Far from assisting those in favour of ratification of the proceedings of the International Criminal Court, we would discourage them in an extremely serious way.
6.15 p.m.
Lord Monson: My Lords, as a layman naturally I hesitate to tangle with the noble Lord, Lord Goldsmith, but I cannot help wondering whether his confidence that the highly subjective, and in some respects ambiguous, wording of paragraph 2(b)(iv) of Article 8 cannot be used against our servicemen is perhaps excessive. Can we be certain that judges and prosecutors will automatically take the commonsense view that he anticipates? When our forces helped to liberate Kuwait they might have been responsible for extremely serious environmental damage. In the event, happily they were not so responsible, even if the Iraqis were, but they could not have known that in advance. Take at random the much smaller provision in paragraph 2(b)(xviii) of Article 8 which outlaws the use of asphyxiating gases. I apprehend that that might outlaw the use of CS gas. I am told that that is extremely unpleasant to those on the receiving end, particularly if they are asthmatic or have other respiratory problems, but in practice its use may be the lesser of two evils at the time. I have great pleasure in supporting the noble Lord, Lord Howell, in this matter.
Lord Tebbit: My Lords, I had not intended to engage in this debate. I came to listen and hoped to be educated. I believe that I have been far from educated by the speech of the noble Baroness, Lady Williams. No doubt inadvertently, I believe that she obscured the difference between a peace-keeping operation and total war. They are very different operations. In the former restraint is required, but in the latter restraint is of a rather different order. The use of nuclear missiles is, for example, an obvious possibility in total war. There is not much restraint in that. Even in the case of peace-keeping, I believe that there is a marked lack of understanding.
Through the medium of Questions for Written Answer, recently I tried to explore the rules of engagement given to our forces operating in Northern Ireland and Sierra Leone. Clearly, in Sierra Leone the rules of engagement permitted our soldiers to kill women and children. That is not permitted in Northern Ireland. But I am told that the rules of engagement are far, far too secret for us to be allowed to see them, or to be told in what way they differ as between those two theatres of war. Is it already contrary to international law as it applies to war to kill women and children in Sierra Leone? I do not know. But the noble Baroness does not appear to know the difference between peace-keeping and war.
Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, perhaps he can explain his
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position. A week or two ago the International War Crimes Tribunal, in a ruling strongly welcomed by Madeleine Albright and the New York Times, decided that an act of rape committed against a small number-of Bosnian women was a very severe crime against humanity that needed to be punished. Is the noble Lord's position that such a crime, whether or not it is committed in armed conflict, should not be dealt with by an international criminal court? I do not understand the noble Lord's position. That was the judgment of Judge Florence Kumba of Zambia in a case involving three Bosnian Serbs at the International War Crimes Tribunal. That decision was widely praised in last Sunday's edition of the New York Times. I should be very grateful if the noble Lord could explain his position.
Lord Tebbit: My Lords, my position is to try to understand the effect of this legislation. I slightly resent the suggestion that somehow I am against the punishment of soldiers who are guilty of such indiscipline as to rape civilians, or even military personnel, in time of war. One does not have to go into the future, or the recent past even, to look at that. But within the British armed services such acts have long been a matter subject to military discipline and to harsh punishment.
Lord Avebury: My Lords, I strongly resent the imputation levelled by the noble Lord, Lord Tebbit, against our Armed Forces in Sierra Leone. To say such a thing in this House, when everyone admires enormously the way in which our Armed Forces have performed in Sierra Leone—the way in which they have restored stability, at least to a certain area of the country, and have earned the plaudits of everyone who lives in Freetown and well beyond—is incomprehensible and absolutely outrageous. I hope that the noble Lord will, on reflection, think better of that remark because, as far as I am aware, there has never been any accusation against a member of our Armed Forces in Sierra Leone of wilfully killing women and children.
I would be horrified if the noble Baroness, Lady Scotland, stood up and told the House that was permissible within the rules of engagement. I do not believe such a rule exists. The noble Lord has somehow invented it in order to make a spurious argument in favour of his noble friend's amendment, but it is not the kind of argument that will appeal to your Lordships.
Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. It is an indisputable fact that, during the rescue operation of British servicemen who had been taken hostage, armed women and children were encountered and were shot dead by the British forces. That happened.
Lord Avebury: My Lords, I hope that the noble Lord is not changing his tack to suggest that our Armed Forces should not be able to fire back when under attack from an enemy. Everyone knows that women

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and children are employed in the irregular armed forces operating in Sierra Leone. But in the way that the noble Lord was putting the matter, they were civilians. If he cares to withdraw the accusation that our Armed Forces would fire on civilian women and children, I would be very happy.
Lord Tebbit: My Lords, not at all. There is no implication that they were civilians. What is a civilian in the context of the war that has been going on in Sierra Leone? There are many armed civilians operating as guerrilla forces. We also know that on many occasions our armed services in Northern Ireland have met armed civilians. They have not been authorised to shoot at them as though it were a war.
Lord Avebury: My Lords, surely the noble Lord is not suggesting that people carrying weapons and shooting at our troops are to be treated as civilians? That is an absolutely absurd argument. He is getting himself into an even more difficult corner than he was in at the beginning.
Before I sit down, I must refer to the absurd argument about genocide in Iraq. To say that we have been guilty of genocide because Saddam Hussein has deliberately prevented his people having the medicines and the food permissible under the oil for food programme is equally a travesty of the truth. Of course such a charge would not be levelled against the United Kingdom or members of the Armed Forces. However, if one were, the amendment has nothing to say about it, because Article 124 allows us to withdraw from the treaty for seven years in respect only of war crimes. So we would still be liable in the impossible circumstances that the noble Lord postulates that a charge of genocide was levelled against this country for the operations in Iraq.
Lord Shore of Stepney: My Lords, perhaps I may go back to before Sierra Leone appeared before us and to the distinction that the noble Lord, Lord Tebbit, made between serious war and relatively lightly engaged peacemaking operations. Of course there is a huge difference.
But there is also a third category—all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.
There is another category of war. It is not quite total war, but it is war with which we are all familiar. I refer to what happened in Korea, in the Gulf, in Iraq, and in many other areas. We have had to fight to win. If I was to take seriously all these new listed war crimes in Article 8.2(b) onwards—all of them, not just some of them—I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.
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The minor suggestion made by the Opposition Front Bench is just an effort to do their best with what apparently is an inviolable convention and a Bill that must in no way be tampered with and amended, even where the most obvious sense and intelligence, based upon our own experience, tells us that some of these clauses are ridiculous. Unless one lives in a world inhabited only by international lawyers, one will recognise that without any difficulty. I am sorry to speak with vehemence on this matter.
Lord Goodhart: My Lords, I am grateful to the noble Lord for giving way. Does the noble Lord therefore believe that there is no such thing as a war crime? Does he, for instance, not recognise that we refrained from using poisoned gas during the Second World War? Does he not recognise that we refrained from using nuclear weapons in Korea when we could have done so, whatever the consequences might have been, to stop the Chinese invading?
Lord Shore of Stepney: My Lords, I look at paragraph 2(b) (xviii) and (xix) of Article 8. I will not have our people dragged before some court because we have used depleted uranium, which many people believe to be poisonous. Have we no idea that we are engaged frequently in conflicts in which, obviously along with the Americans and to some extent the French, we are more engaged than any other country? Why are we more engaged? The reason is because we all happen to be permanent members of the Security Council. We are most active in the business of bringing peace and order to this troubled world. We are putting ourselves unnecessarily in the dock by accepting a number of these foolishly agreed clauses in the convention.
I have no worry with the general categories dealing with crimes against humanity, against genocide; indeed, the first half of Article 8.2(a). I have no trouble with that at all because I share the same purpose. But why we should put ourselves in the dock in the foolish belief that we would win an action brought against us in a British court, while at the same time we know pretty well that we would lose the battle in the cause of public opinion in the world outside, I simply do not know.
Baroness Park of Monmouth: My Lords, I hesitate to follow that magnificent statement, but I want some clarification. We are the only country, so far as I know, which has a serious internal problem. I refer to Northern Ireland. Paragraph 2(e) of Article 8 applies,
"to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups".
If one goes back to paragraph 2(c)(ii), one sees that some of the crimes that could be adduced against us include,
"committing outrages upon personal dignity, in particular humiliating, degrading treatment",
and, in heading (iv), the,
"passing of sentences…without previous judgement pronounced by a regularly constituted court".

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I suggest that those are just the kind of accusations that the IRA would bring against us as claims of inhumanity and crimes against the statute. I just wonder whether we can take any precautions to prevent that happening. At the time that this was discussed, Mr Vaz said—it was not in relation to Northern Ireland but generally—that,
"if serious allegations were made in good faith against British citizens, we are confident that we could demonstrate that there is a remedy in British justice".
I would certainly endorse that, but I doubt whether the IRA would. It therefore seems that there is a strong argument for the retrospective clause proposed by my noble friend on the Front Bench because this is precisely the kind of thing that led to Bloody Sunday and to the inquiry, which has already cost goodness knows how many millions of pounds and is still going on. Accusations against the Diplock courts and accusations of degrading treatment are just the kind of matters that would be brought forward. I should like some reassurance from the Minister that this issue has been considered. It is a unique situation. The other European countries mentioned do not have that problem. We do.
6.30 p.m.
Baroness Scotland of Asthal: My Lords, I should like to restore a little calm and perhaps temperance to the way in which we look at these issues. I say straight away that this country has a very noble and proud past in the way in which we stood up for the human rights not only of our own citizens but of the citizens of the world too. I should like to express confidence that the way in which our Armed Forces have been trained is such as to enable them to respond appropriately and proportionately when they are dealing with situations of war. If we look at the way in which we have behaved in the past, that has been clearly demonstrated.
I should like also to lay to rest the concerns raised by the noble Lords, Lord Monson and Lord Shore, and the noble Baroness, Lady Park. The Rome Statute of the ICC is full of safeguards. The principal safeguard is—I cannot stress this point enough—that national judicial systems will have the first claim on any investigations that affect them. United Kingdom authorities will retain the right and responsibility to investigate offences committed here or where UK nationals stand accused of committing these crimes anywhere in the world. The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.
I turn to the comments of the noble Lord, Lord Howell. He started by saying that there has been a major change in the landscape. With the greatest respect, I disagree with him. We are not supporting a higher jurisdiction, as the noble Lord outlined. The ICC will not be a higher jurisdiction. It will be a complementary jurisdiction to our own. The definitions contained in the Bill and in the statute are
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already part of English law. They reflect international and domestic law, and the armed services are already aware of them and are trained accordingly.
It is important for us to remember that the definitions of war crimes are largely drawn from the Geneva Conventions of 1949, as was highlighted by the noble Lords, Lord Lester and Lord Goldsmith, and their additional protocols of 1977. The Geneva Conventions were incorporated into our domestic law by the Geneva Conventions Act 1957. That was done under a Conservative government—the Macmillan government. The additional protocols were incorporated into our domestic law under another Conservative government, in 1995, without waiting for the United States of America to ratify. The United States still has not ratified, although it signed in 1977.
Lord Lester of Herne Hill: My Lords, am I not right in thinking that it was also a Conservative government who ratified the United Nations Convention against Torture and then incorporated the standards in that convention into our domestic law?
Baroness Scotland of Asthal: My Lords, the noble Lord is correct; and it is something about which I am sure noble Lords opposite feel a degree of pride and satisfaction. It is something which we on this side of the House would openly and, I hope, generously applaud. It was right then; it is right now.
Perhaps I may say that the past hour has occasioned a little sadness. When the statute was debated in this House, there was unanimity. Virtually all Benches spoke with one voice. There was also unanimity in the other place in welcoming the statute and welcoming signature. So it is with a little disappointment that I notice the divisions between us now. But let us see whether we cannot clear some of those away.
The noble Lords, Lord Lester and Lord Goldsmith, were right when they referred to the basis on which paragraph 2(b)(iv) of Article 8 should be looked at. I shall not repeat all the comments that were made. However, I should like to assist the House with regard to the genesis of the breaches contained in paragraph 2 of Article 8 because, on a number of occasions, I have heard noble Lords—particularly the noble Lord. Lord Howell—mention them. The grave breaches of the Geneva Conventions appear in paragraph 2(a) of Article 8. The grave breaches of Additional Protocol I include the physical mutilation provision—paragraph 2(b)(x)—and making the civilian population the object of attack—paragraph 2(b)(i). There is also the launching of an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians or damage to civilian objects. That is a more stringent definition of the criminal offence which is now contained in paragraph 2(b)(iv).
Those provisions are all referred to in existing law—our law and not anyone else's law—which was brought into being by the Geneva Conventions (Amendment) Act 1995. So we need, my Lords, if I may respectfully say so, to take a steady look at where we are now. We are not seeking to do anything extraordinary. We are

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seeking to bring about helpful change. We are seeking to ensure that war criminals do not escape. I feel confident, notwithstanding the past hour, that all Members of the House can still join arms on that point.
This Government have never intended to take the seven-year opt-out on war crimes, which is provided under Article 124 of the Rome Statute. We see no need to do so. Indeed, there was a good deal of strenuous argument to stop Article 124 ever forming part of the Rome Statute. I am sure that the noble Lord, Lord Kingsland, will not mind me reminding him of what he said in this House on 20th July 1998 about our failure to stop that article becoming part of the statute. During the debate, which was held after the Rome Statute had been adopted, he said:
"There is, however, one immense drawback…The drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes".—[Official Report, 20/7/98; col. 626.]
I see that the noble Lord, Lord Kingsland, is in his place. He opposed Article 124 at the time and I hope that now he will have no difficulty in agreeing with me. Indeed, I hope that he, along with his noble friend beside him, the noble Lord, Lord Howell, will say that it would be undesirable and quite wrong to pursue an opt-out under the article and that, in due course, the amendment can be withdrawn.
Lord Howell of Guildford: My Lords, I hope that I shall not sound cynical if I say that long experience has taught me that when a government put before the House an important and substantial Bill and then assert that it changes nothing and that nothing in the Bill is new, that is the time for legislators to be alert. Of course this Bill will produce a new landscape. Of course there is something new here, in the form of a higher, international jurisdiction. It may not be a primary jurisdiction—I did not say that it was; other noble Lords made those comments—but its jurisdiction will come into operation when the nation state (in this case, the United Kingdom) is unable or unwilling—that is more relevant, because we would not he unable to do so—to investigate, deal with, try or address accusations and charges of war crimes. It would come into play when this country is not prepared to investigate because we believe that public servants and military personnel have acted in their highest duty under the command of their superiors, in line with public policy and political strategy.
When that is the case, and when the ICC has considered whether that would be an admissible objection after the pre-trial procedure and an appeal, then the ICC will have the final word. Therefore, we have here a new situation in which a higher international jurisdiction may make judgments about crimes—founded in international law, which of course we want to uphold, despite the inevitably vague wording as regards our own judicial context—which have been put onto our statute book. To pretend that nothing is new here and that there are no new risks, that the matter can be rushed through smoothly and that the situation will be as it was, is not, I believe, to act fairly and squarely towards those who may be affected by this legislation. In the end, it will affect in
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particular those in the front line, those who will have to undertake the difficult tasks, tasks which necessarily are sometimes bloody and violent in order to uphold and preserve peace and do down tyrants.
Lord Avebury: My Lords, I hope that the noble Lord will forgive me for intervening. If the noble Lord does not like the wording, why did the Tories enact it in the 1995 Act?
Lord Howell of Guildford: My Lords, I believe that the noble Lord is referring to the war crimes legislation.
I hope that I have explained clearly that that legislation is not what is new here. What is new is that a higher, international jurisdiction is now placed in a position—not a primary position, because domestic courts are complementary to it—where it can have the final word if the United Kingdom and its authorities do not wish to investigate or to bring charges because they do not believe that any crime has been committed. The trouble lies in that, where we do not believe that a crime has been committed, other countries, in the international context, could raise a case saying that crimes had been committed. Unless we understand that basic point; namely, that two points of view must be considered here, and that what one nation may regard as an innocent pursuit of peace—
Baroness Scotland of Asthal: My Lords, perhaps I may make it plain, if I did not do so earlier, that it is our belief that if a British citizen were to be accused of such an offence, then we in Britain would wish to investigate the matter and we would do so. I am sure that whichever government of whatever complexion in Britain would do the same. The situation which the noble Lord has described should not occur. If it did occur, it would be in our hands.
6.45 p.m.
Lord Howell of Guildford: My Lords, I understand what the noble Baroness said. But the danger remains where, as a nation, we would feel that our public servants and military personnel had performed their duties well. The hypothetical case has been raised; namely, the bombing of civilians and bridges in Kosovo. Other parliaments have gone further into the past and have discussed the decision taken during the Second World War to take out and smash the ancient monastery of Monte Cassino. It was believed to contain munitions; instead it contained priceless books and frightened monks. That was a direct and intentional attack on a civilian objective. These circumstances describe situations where the host country—it could be New Zealand or Britain—could say that, "Nothing wrong was done. There is nothing to investigate and we are unwilling to do so".
Lord Archer of Sandwell: My Lords, I am a little puzzled by the noble Lord's remarks about Monte Cassino. Surely the point was that that was not an intentional attack upon a civilian objective? It was thought to be a military objective.
Lord Howell of Guildford: My Lords, the noble and learned Lord will recall that a considerable dispute broke out over whether it was a military objective. Even the concept of "intentionality"—if that is an English word—is one that can be debated. Other noble Lords have pointed out that it has two sides. Indeed, the history books still argue over whether the battle for Monte Cassino was intentional, whether it was known that it was a civilian target but that it needed to be taken out, or whether it was a military target. Indeed, that is why the French have put in a ratification status declaring that they want to be able to interpret the words "military objective". Whatever the noble Lord, Lord Goldsmith, has said, it is a highly subjective term. One person's military objective is another person's precious civilian site or institution. It is inevitable that there will be a difference of view.
I wish only to make the point that it cannot be right to say that there is nothing new here when clearly there is something new; namely, a new and higher jurisdiction. Many matters covered in the war crimes list, which forms part of the international law, have been accepted in the past, as pointed out by the noble Lord, Lord Avebury. However, when those matters are put into our statute law and are considered in the context of this higher jurisdiction, they raise questions. It is inevitable that they could put some of our Armed Forces into situations where questions could be asked. That is what worries them.
Lord Shore of Stepney: My Lords, I am grateful to the noble Lord for allowing me to intervene. On a point of clarification, when this matter came before the previous Parliament in 1995, were the war crimes listed in the detail of the Bill, as they are in sub-paragraphs (a) and (b)? Did any serious debate take place about particular methods of war and the actions there enumerated?
Lord Howell of Guildford: My Lords, I cannot answer the noble Lord's second point because I was not here.
As regards his first point, I imagine that the Geneva Convention and its protocols were in print and available for any noble Lord to read in the Library, in the knowledge that they were a part of international law. However, they did not then form a part of the statute law of this country, nor was there in place an international jurisdiction which had the last word in their interpretation and could bring forward allegations against individuals whom we might regard as perfectly sensible public servants in our Armed Forces. However, as soon they are named in a military investigation, their careers are ruined. I think that, sometimes, the handlers of the law do not understand that point. That is the fact of the matter. At the end of this debate, I still feel very strongly that we owe a consideration—a bargain—to our Armed Forces, in the light of the immensely difficult situations they now face. I recall the references made by the noble
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Baroness, Lady Williams, to low intensity warfare and dealing with the then Provisional IRA. I was the Minister in the Northern Ireland Office at the time and I recall the great difficulties in trying to evolve new procedures. These are extremely complex and many more new procedures will need to evolve. That is all the more reason—I repeat, all the more reason—why we should have in place clear laws and statutes so that our men and women serving in the front line can understand how they are to proceed. Furthermore, they must know, along with their commanding officers, what is right and what it is their duty to do. They should not get into the terrible tangle of wondering whether an order issued by their commanding officer is or is not liable to lead them into court.
Lord Goldsmith: My Lords, before the noble Lord announces what he intends to do, can he deal with one point; that is, whether or not it is his view—and, indeed, the view of the Front Bench opposite—that no one should be subject to the jurisdiction of the International Criminal Court for war crimes; that no person who is guilty of war crimes should be subject to this court? If we are saying that our nationals should not be, on what basis would the noble Lord say that anyone else should be? Perhaps he can answer that question.
Lord Howell of Guildford: My Lords, I am saying that the International Criminal Court should come into being—we support the principle of it—for crimes against humanity and genocide; we have no problems with that at all. However, for war crimes, we have our domestic procedures where, if war crimes have been committed in our view and the view of our courts, there should be the appropriate courts martial or civilian trials. If a war crime is committed on foreign soil—and we know of the ugly and sad cases which have occurred in recent times—the soldiers concerned should be tried. All that should happen.
What I am saying is that so far as concerns the jurisdiction of the International Criminal Court in relation to war crimes—the elements set out in Article 8—we should hold that over for seven years. We should do that not because the French are doing so—that would be absurd—but because, as an international peace-keeping power, we want the proper protection of our own Armed Forces in the immensely complex situations in which they will increasingly become involved. As my noble friend Lord Tebbit pointed out, even the question of what is a civilian becomes ambiguous and not at all clear. It is particularly unclear at the present time in Kosovo and Macedonia.
These deep concerns have not been allayed. I am very disappointed in the Minister's reply. Our concerns have not been allayed by what she said this evening.
The Minister did not comment on the need to publicise and tell people generally that there are new crimes on the statute book. It is quite wrong that there should be a lack of publicity. I read somewhere—I

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hope that I am not making any false analogies—that when the Emperor Caligula promulgated laws, he used to ensure that they were placed at the top of very high pillars in very small characters so that no one could read them.
Lord Lester of Herne Hill: My Lords, is the noble Lord aware that in this case the words are not put on very tall pillars in very small writing so that citizens cannot read them? They are put into the handbook of military law, to which every serving member of the Armed Forces has access, as I well recall from personal experience. The words are also in the law of the land, having been duly enacted by Conservative governments on several occasions.
Lord Howell of Guildford: My Lords, I shall be very glad when those handbooks are amended—as I hope they will be—to explain the new risks involved: that these are not war crimes listed only in the Geneva Convention and its protocols but are crimes which are now on our own statute book; and that a higher international court may have the final word on whether these crimes have been committed and on whether investigations into them should be mounted. Then I shall be content—but I have not heard that suggestion from the Benches opposite. For these and many other reasons, I wish to test the opinion of the House on the amendment.
6.54 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 122.

Division No. 1

CONTENTS

Allenby of Megiddo, V.

Gardner of Parkes, B.

Anelay of St. Johns, B.

Geddes, L.

Astor of Hever, L.

Glentoran. L.

Attlee, E.

Henley, L. [Teller]

Baker of Dorking, L.

Hooper, B.

Beaumont of Whitley, L.

Howe, E.

Biffen, L.

Howell of Guildford, L.

Blatch, B.

Jenkin of Roding, L.

Boardman, L.

Kingsland, L.

Brabazon of Tara, L.

Knight of Collingtree, B.

Bridgeman, V.

Lamont of Lerwick, L,

Brougham and Vaux, L.

Liverpool, E.

Buscombe, B.

Luke, L.

Byford, B.

Lyell, L.

Caithness, E.

Mancroft, L.

Campbell of Alloway, L.

Monson, L.

Colwyn, L.

Montrose, D.

Cope of Berkeley, L.

Murton of Lindisfarne, L.

Craigavon, V.

Northbrook, L.

Crickhowell, L.

Northesk, E. [Teller]

Cumberlege, B.

Palmer, L.

Dixon-Smith, L.

Park of Monmouth, B.

Dundee, E.

Perry of Southwark, B.

Elliott of Morpeth, L.

Plumb, L.

Elton, L.

Plummer of St. Marylebone, L.

Feldman, L.

Rawlings, B.

Ferrers, E.

Rees, L.

Fookes, B.

Renton, L.

368

Roberts of Conwy, L.

Skelmersdale, L.

Seccombe, B.

Stewartby, L.

Sharples, B.

Swinfen, L.

Tebbit, L.

Shaw of Northstead, L.

Trumpington, B.

Shore of Stepney, L.

Vivian, L.

Shrewsbury, E.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Janner of Braunstone, L.

Alli, L.

Jay of Paddington, B. (Lord

Amos, B.

Privy Seal)

Andrews, B.

Jenkins of Putney, L.

Archer of Sandwell, L.

King of West Bromwich, L.

Ashton of Upholland, B.

Layard, L.

Avebury, L.

Lea of Crondall, L.

Barker, B.

Lester of Herne Hill, L.

Bassam of Brighton, L.

Lipsey, L.

Berkeley, L.

McIntosh of Haringey, L.

Bernstein of Craigweil, L.

[Teller]

Billingham, B.

McIntosh of Hudnall, B.

Blackstone, B.

MacKenzie of Culkein, L.

Borrie, L.

Mackenzie of Framwellgate, L.

Bradshaw, L.

Maddock, B.

Bragg, L.

Mallalieu, B.

Brett, L,

Mar and Kellie, E.

Brooke of Alverthorpe, L.

Massey of Darwen, B.

Brookman, L.

Merlyn-Rees, L.

Burlison, L.

Methuen, L.

Carter, L. [Teller]

Miller of Chilthorne Domer, B.

Castle of Blackburn, B.

Mitchell, L.

Chandos, V.

Molloy, L.

Clement-Jones, L.

Morris of Manchester, L.

Cocks of Hartcliffe, L.

Newby, L.

Colville of Culross, V.

Nicol, B.

Dahrendorf, L.

Northover, B.

Davies of Coity, L.

Oakeshott of Seagrove Bay, L.

Davies of Oldham, L.

Orme, L.

Desai, L.

Puttnam, L.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Ezra, L.

Rennard, L.

Farrington of Ribbleton, B.

Rodgers of Quarry Bank, L.

Roper, L.

Faulkner of Worcester, L.

Russell, E.

Filkin, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

Gale, B.

Scott of Needham Market, B.

Gibson of Market Rasen, B.

Sharman, L.

Gladwin of Clee, L.

Shutt of Greetland. L.

Goldsmith, L.

Simon, V.

Goodhart, L.

Smith of Clifton, L.

Goudie, B.

Taylor of Blackburn, L

Gould of Potternewton, B.

Thomas of Gresford, L.

Graham of Edmonton, L.

Thomson of Monifieth, L.

Greaves, L.

Thornton, B.

Grenfell, L.

Tomlinson, L.

Hamwee, B.

Tordoff, L.

Hardy of Wath, L.

Turnberg, L.

Harris of Greenwich, L.

Turner of Camden, B.

Harris of Haringey, L.

Walker of Doncaster, L.

Harris of Richmond, B.

Walmsley, B.

Haskel, L.

Warner, L.

Hayman, B.

Watson of Richmond, L.

Hilton of Eggardon, B.

Whitaker, B.

Hollis of Heigham, B.

Whitty, L.

Howells of St. Davids, B.

Wilberforce, L.

Hoyle, L.

Wilkins, B.

Hughes of Woodside, L.

Williams of Crosby, B.

Hunt of Kings Heath, L.

Williams of Elvel, L.

Irvine of Lairg, L. (Lord

Winston, L.

Chancellor)

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.5 p.m.
Clause 2 [Request for arrest and surrender]:
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 3:
Page 1, line 23, leave out ("shall") and insert ("may").
The noble Lord said: My Lords, this amendment, with which I hope that we shall consider also Amendments Nos. 7 and 8, will be drearily familiar in form as it proposes to insert the word "may" in the Bill instead of the word "shall". Straightaway, in the light of earlier discussions and those in Committee, we can confidently predict that, given the Government's extreme anxiety to stick to the precise wording of the Rome Statute, this will be seen as an offence against that wish. In passing, before explaining why I nevertheless seek to move these amendments, I should point out that this is only a wish.
In the Canadian Parliament, I noticed that the legislation passing into that country's law varies some of the wording. They, too, wished to put the entire statute into law, but they varied the words at a number of points, one of which we shall deal with under a later amendment. I emphasise that that is the wish of the Government, but that it is perfectly possible to achieve the aims of agreeing the statute for moving to ratification—which is what the Government want—without having to put into our own law every single word, as sacred, of the statute. Other countries seem to find ways of getting around that.
The amendments all raise the question of the Secretary of State's discretion. They 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. Amendment No. 3 starts from the point that the Secretary of State is accountable to Parliament. We believe that he should retain residual discretion to refuse to activate a request for arrest or surrender. We recognise the complex series of patterns by which the process of exchange—the dialogue, as it were—between the International Criminal Court and the party states takes place. It is complex. There are many filters and opportunities for appeal, and so on.
I obtained from the House of Commons Library a very interesting summary, when one has been through all the filters, of what would actually happen if a British soldier were accused of a statute crime. First, the ICC would have to decide whether any process was taking place in the United Kingdom, in a British service court overseas, or in the national courts of some third countries, that complied with the tests of willingness or ability. As mentioned in an earlier debate, inability does not really arise. However, if it is a question of willingness, the focus would have to be on whether the investigatory and trial processes would be considered independent, impartial and compliant with the norms of due process; and, if not, whether they were conducted in a manner consistent with the intent to bring the person to justice.
If the party state rejected the idea that these were crimes at all—echoes of our previous debate—the ICC would be in a position to regard the case as admissible.
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The process would then begin. There would, of course, be the availability of appeal against that and the permission to challenge that ruling. But, eventually, with an appeal having been heard and rejected, the ICC would decide on its own motion that it wished to pursue the case.
These amendments, which propose to change the word "shall" into "may", would provide one more block in the process. Where this nation genuinely felt that someone had done something for which no finger should be pointed at him and no investigation should take place, and where it was clear that he was acting under proper orders in a way necessary in the heat of war or even in the heat of peacekeeping, it would mean that the Secretary of State's discretion would be there to stop the proceedings.
It will, of course, be said that this is putting other words into the statute. That can be done, and is done, by other countries, although perhaps the Government do not want to do it. The "Goldsmith doctrine"—if I may call it that—will be put forward; namely, that if we set a bad example, others will follow it. I applaud the idealism behind that but I doubt very much whether that is the way this wicked world works. Clearly some countries will not sign up to the measure. I refer to the obvious "bad boys" such as Libya and Iraq. Perhaps North Korea will sign up to it. Some responsible nations have not signed up to it. However, I do not think for one moment that they will be influenced one way or another by what we do. We should uphold our international responsibilities. We should maintain our own confidence in our international reputation, but we should also protect our interests and our people. To do that we need some discretion. These amendments offer that discretion. I beg to move.
Lord Lester of Herne Hill: My Lords, the premise of these amendments and, indeed, of the Conservative Front Bench's entire attitude towards the Bill, is that it is undesirable that there should be a supra-national international court to deal with these crimes and that what one should seek to do therefore is to give the Secretary of State as wide a discretion as possible to hamper the transfer of a suspected war criminal to the court. I think that is the premise.
I want to deal briefly with that premise. I speak from personal experience. I had the great privilege of acting on behalf of the United Kingdom, defending it in the Northern Irish state case in the late 1970s that was brought against the United Kingdom by the Irish Republic. As the noble and learned Lord, Lord Archer of Sandwell, will remember as I recall that he was the Solicitor-General at the time, our forces—both the Army and the police service—were accused of acts of torture and inhuman and degrading treatment and punishment of civilian suspected terrorists in interrogation centres in Northern Ireland. The case went to the European Commission and the European Court of Human Rights and eventually the court decided that we were not guilty of torture but of inhuman and degrading treatment—breaches of Article 3 of the convention.

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In arguing that case as one of the counsel on behalf of the United Kingdom, led by someone we very much miss, the late Lord Silkin of Dulwich, who was in my view a very remarkable Attorney-General, I was struck that the British civil servants who were part of that team made it quite clear—I hope that I am not breaching a confidence all these years later—that they had come to appreciate the jurisdiction of the Strasbourg court. One of them, a distinguished lawyer, said to me, "We would never have discovered exactly what had gone on in Northern Ireland if there had not been the European Commission and Court of Human Rights. That enabled the government to get to the bottom of what had really gone on". The same government lawyer said to me that the fact finding that was done by the Strasbourg Commission of Human Rights was every bit as good as the fact finding done by an English High Court. In the end we gave an undertaking to the Strasbourg court that we would not repeat the five techniques of interrogation.
I cannot remember anyone among the officials I dealt with and acted for in the Ministry of Defence, the Northern Ireland Office or anywhere else, who did not regard the process, although painful and hard fought all the way, as ultimately beneficial. I should be interested to know whether the noble and learned Lord, Lord Archer of Sandwell, as one of the Law Officers at the time, would agree with that. I make this point because it is not self-evident—
Lord Archer of Sandwell: My Lords, in order to avoid intervening later, I seize the opportunity to say that I totally agree.
7.15 p.m.
Lord Lester of Herne Hill: My Lords, as I say, I hope that I am not speaking out of turn in sharing that experience. But I wish to do so because it illustrates that the premise on which these amendments are based is misguided. It goes without saying—I am sure that the noble Lord, Lord Howell, knows this perfectly well—that the amendment is incompatible with the terms of the statute for the reasons that we have gone over in previous debates and which I do not need to repeat. The noble Lord knows that well, because on the previous occasion the noble and learned Lord the Attorney-General explained why it was incompatible. However, I want to deal with the underlying value judgments here and, as I say, give the benefit of practical experience.
It follows from the premise of the Conservative Front Bench's approach that it would wish that we were not parties to the European Convention on Human Rights or, at any rate, had not accepted the jurisdiction of the European Court of Human Rights, which would be able, and is able, thank heavens, to take cases from IRA—
Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. I think that if the noble Lord examines the amendments that my noble friend Lord Howell and I tabled in Committee, he will readily
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ascertain that far from questioning the jurisdiction of the Court of Human Rights, those amendments sought to reinforce it in the context of this Bill.
Lord Lester of Herne Hill: My Lords, I am glad that the noble Lord, Lord Kingsland, said that. The point I am trying to make is that the position taken by the Conservative Front Bench is inconsistent with that, because any IRA terrorist of the worst kind possible can now bring a complaint against the United Kingdom before a European Court of Human Rights composed of seven to 15 out of 42 judges, of whom only one is British. That is the entitlement under the European Human Rights Convention. They can allege torture or inhuman or degrading treatment or punishment and other things as well. Every one of the 41 countries of the Council of Europe has subscribed to that. We have also incorporated it into our domestic law. It is beneficial that there be a supra-national court that can interpret and apply the international standards in a consistent but not slavishly uniform way.
I submit that the same applies to the International Criminal Court. It is beneficial that there be an International Criminal Court that is able to give a consistent interpretation to the Geneva Conventions and the other conventional and customary international law. These amendments would give the Secretary of State discretion to decide whether or not to forward an ICC request for arrest or delivery to the appropriate judicial officer. That would allow the Minister to block an ICC request from the outset. The terms of the statute applying to the arrest and delivery of an individual subject to an ICC request leave no scope for discretion—I refer to Articles 59 and 89.
I say with great respect that these amendments are entirely inconsistent with the object, purpose and language of the statute. They are simply not permissible if we are to be able to ratify the statute. Therefore, I oppose the amendments.
Lord Goldsmith: My Lords, I thought that I would keep quiet on this amendment but the noble, Lord Howell, tempts me by his reference to a point which I do, and would, make. It is not so much that because we do something everyone else will do something. I do not take that view. But if we were to appear to say that the United Kingdom thinks that justice is optional but we can decide whether or not we think that someone should be prosecuted, that gives an excuse to so many others to say, "We shall protect our friends and only respond to the international court when it concerns people we do not like". I do not think that sentiment is idealist; I think that it is a valid point.
I share the views which the noble Lord, Lord Lester of Herne Hill, has expressed. There is a matter I do not understand which I should very much like to have explained. The provision states that if we receive a request for arrest and surrender, we shall take steps immediately to arrest. How can the United Kingdom ratify the statute, which includes a mandatory obligation under Article 59, at the same time as retaining the right not to comply with it? It is not a

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question of changing words in the statute. It is not possible to ratify the statute unless we accept that we are assuming an international obligation—and that means that we must assume it.
Baroness Scotland of Asthal: My Lords, I respectfully agree with the comments of the noble Lord, Lord Lester, and my noble friend Lord Goldsmith. I shall not tire the House by repeating everything that was said by my noble and learned friend the Attorney-General when we discussed this matter in Committee. The noble Lord, Lord Howell, is right: we seek compliance with the statute. The ICC Bill is designed to enable the United Kingdom to ratify the Rome Statute of the International Criminal Court. As a number of noble Lords have said, that statute makes it clear that state parties are expected to comply with requests from the ICC for arrest and surrender.
It is important to note that Article 89 sets out that state parties shall, in accordance with the provisions of this part and the procedure under their national law, comply with requests for arrest and surrender. Clause 2 of the Bill sets out the procedure to be followed by the Secretary of State and the appropriate judicial officer when a request is received from the ICC for arrest and surrender of a person alleged to have committed an ICC crime or to have been convicted by the ICC. The clause is designed to enable us to meet our obligations under Article 89 of the statute.
Noble Lords suggest that the Bill should be amended. By doing so, that process of dealing with an ICC request is subjected to a further step which could delay or even frustrate the legitimate surrender of the persons to the ICC or the state of the enforcement. The Government say that the introduction of a discretion is not appropriate at this stage.
In the light of those comments—I do not repeat all that was said on the last occasion; all noble Lords are present—I hope that the noble Lord will feel able to withdraw the amendment.
Lord Howell of Guildford: My Lords, the Government's answer is the one to be expected if the objective is to stick to the letter of the statute. I shall refer later to the point that other countries are able to carry forward the task without sticking to the letter of the statute. But if that is the Government's intention, clearly these amendments were doomed to be rejected.
However, there was a purpose behind the amendments. It was to establish beyond peradventure—I am not sure that it was entirely clear in Committee—who has the final word. When it comes to the admissibility of a case, and the to-ing and fro-ing of appeals and so on, we now know that in the end it is the court that shall satisfy itself that it has jurisdiction in any case brought before it. On its own motion, the court may determine the admissibility of a case in accordance with Article 17.
That is the clear view. As one eminent British lawyer put it the other day, that means that in theory we have to be prepared to have our soldiers tried by the
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International Criminal Court. This is a sobering clarification. It reinforces my belief that while upholding many of the noble principles behind this project, we must seek at every point to safeguard our own capacity to be a competent player on the international scene by ensuring that our Armed Forces and Crown personnel are protected from new risks. It is not protection from the law if they commit war crimes but protection from new and sometimes vexatious and unpredictable risks.
In the light of what I have said and the Minister's remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Lord Lamont of Lerwick Lord Lamont of Lerwick moved Amendment No. 4:
Page 1, line 24, at end insert—
("() The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country.").
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 5 and 6 which stand in my name. Amendment No. 4 deals with amnesties; Amendment No. 5 deals with Northern Ireland; and Amendment No. 6 deals with the jurisdiction of the court as it applies to countries that have not ratified the statute of the ICC.
On amnesties, I accept the good intentions underlying the Bill. However, it is not sufficient to continue to underline the good intentions. It is necessary to examine the consequences. We are familiar with the doctrine of the law of unintended consequences: legislation often has consequences that we do not intend. I believe that the inflexible application of international law in certain areas will make conflict and abuses of human rights more likely.
Amendment No. 4 refers to the treatment of amnesties and states:
"The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country".
Many countries—in Africa or South America—have had internal conflicts where they have come to their own domestic agreements about the past. It has happened in South Africa with the Truth and Reconciliation Commission. The dilemma was well illustrated by recent events in Sierra Leone. The British Government brought pressure for the inclusion within the Sierra Leone Government of a faction which had been involved in what would be agreed generally to be crimes of appalling barbarism—torture; crimes against humanity; and amputating people. When those crimes ceased, those people became potentially liable to legal charges. But the dilemma was well illustrated by the changing attitude of the British

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Government. They found themselves accommodating people who had done terrible things because they thought that that was the way to peace in Sierra Leone.
On another occasion I gave an example of what the former Minister of State at the Foreign Office was reported to have said in relation to Angola. In the electronic Daily Telegraph he was reported to have held out the offer of safe conduct and amnesty for Jonas Savimbi. The same Minister of State has been an extremely strong supporter of the ICC. But according to the press he was saying that a particular individual should be given amnesty because that was the way to end conflict.
This is the point which has concerned me and where I believe that the International Criminal Court could do harm. The ICC cannot stop a civil war; it cannot stop a terrorist struggle; it cannot remove a tyrant from power. But if some form of peace is negotiated locally involving an amnesty for past offences, the ICC stands ready to nullify that agreement by launching its own prosecutions. Many countries in Eastern Europe, Southern Africa or South America that have made a transition to democracy in the past decade have made provision for such amnesties. It will be left to an international civil servant or an international court to decide when and to what extent to ignore such local peace conditions.
The local equivalent of an Interior Minister or a Home Secretary might offer a pardon, believing that it was in the best interests of his country, even if it did not accord with strict legal justice. As I understand it, the ICC' prosecutor is not authorised to decide on any basis other than strict legal justice, yet he does not have the enforcement power to deliver legal justice. That results in the rigidity of untempered law without the strength of law in a sovereign state. The ICC prosecutor cannot invoke political considerations openly, because he has no accountability to an elected parliament or president. He will depend on extraordinarily politicised private advocacy groups for political support.
I have raised this issue before. I have asked the Attorney-General several times how an amnesty could be treated. In Committee, he answered:
"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 be given".
That last sentence is the most important one. However, he went on, slightly unclearly:
"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 he appropriate where a fair and democratically supported amnesty had been proclaimed, but not where it was a purely bogus or cosmetic amnesty for illegitimate purposes".—[Official Report, 8/2/01; col. 1288.]
I interpreted the Attorney-General's reference to "justice" in a strict legal sense and took that answer to mean that it was extremely unlikely that a democratically elected Government could legitimately issue an amnesty within a country to excuse or forgive past crimes and undertake a process of reconciliation.
That is my greatest reservation about the new International Criminal Court. The inflexible application of law is an obstacle to reconciliation. Such an approach or doctrine leads to the idea of unconditional surrender or fighting to the last man. One of the war crimes listed in the statutes of the court is declaring that no quarter will be given. I understand why that is listed as a war crime, but that attitude will be encouraged if the court is not allowed to recognise amnesties within countries. My amendment specifies that there should be a democratically elected government—not a continuing dictatorship—and that the alleged crimes should be internal to that country. The court could do enormous harm by interfering with such processes.
Amendment No. 5 would apply that logic to Northern Ireland, because the situation there illustrates that dilemma. The Government have put strict legal justice aside in the pursuit of a political settlement. No doubt the Minister will tell me that in some way the International Criminal Court is irrelevant to Northern Ireland, but my point is logical and correct. If we are prepared to have an amnesty in Northern Ireland and believe that no one should interfere with that from outside, why do we think that it is right for the International Criminal Court to interfere in other countries that have decided to put aside strict legal justice and make a political settlement to advance peace and reconciliation? That is an important point.
A national criminal justice system always provides a safety valve—a recourse to a pardon or an amnesty issued by political Ministers to stay the effect of a prosecution in the courts. There is no provision for that in the ICC.
Amendment No. 6 provides that the Secretary of State shall not transmit the request if the person alleged to have committed an ICC crime is a citizen of a country that has not ratified the statute of the ICC. One of the most contentious points is the extension of the jurisdiction of the ICC to countries that have not ratified the statute. That is one of the United States Government's reservations. They are fearful even now that the court will be able to put American servicemen on trial. That is particularly disquieting some people in that country.
The Rome Statute extends the court's jurisdiction not only over nationals of states that are parties to the statute, but over nationals of non-party states when they are charged with aggression or war crimes against nationals of states that are party. That is bad enough, because it effectively extends the court's authority over countries that do not consent to it. That is a novel concept in international law, although there would be some protection for non-party states if their questionable military action involved other nonparty states.
I have an opinion from a professor of government at Cornell University that under Article 12.3, when a state seeks prosecution against officials of another state, even when the charging state is not a party and will not submit to prosecutions of its own officials, it

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can still bring prosecutions against non-party states. In addition to waiving traditional norms of consent, the Rome Statute also appears to waive traditional norms of reciprocity, making it easier for the prosecutor to play politics against unpopular states.
I very much hope for a clear response from the Minister on those three amendments, particularly on the amnesty in Northern Ireland. I have raised the issue on several occasions and have not yet had a clear reply.
Lord Monson: My Lords, on Second Reading I expressed the fear that much of the Bill was effectively, even if not consciously, a stepping stone on the Nay to world government. Such a prospect will not worry the minority who favour world government—quite the opposite—but it should worry everyone else. Amendment No. 4 in particular would help to diminish those fears. The same would have been true of Amendments Nos. 3, 7 and 8.
Moreover, without these amendments, any future South African-type settlement, as the noble Lord, Lord Lamont, pointed out, and any future Northern Ireland-style settlement, or perhaps one should say potential settlement, would not be possible. Prosecution would be obligatory in every single case. The views and the prejudices of those living hundreds, or perhaps thousands, of miles away would count for more than the considered judgments of those living on the spot. Therefore, I certainly support Amendment No. 4, moved so well by the noble Lord, Lord Lamont.
Lord Lester of Herne Hill: My Lords, perhaps I may deal with each of the amendments in turn, in the way that the noble Lord, Lord Lamont of Lerwick, has done. I shall explain briefly why we are opposed to each and all of them.
Amendment No. 4 would mean that the United Kingdom would not co-operate with an ICC request where a democratically elected government had already granted amnesty to an individual in relation to the crime committed. It is ironic that this amendment should be moved only two days after Judge Gabriel Cavallo in the Argentine ruled that amnesties in that country in relation to a case of kidnapping of children were unconstitutional and should be set aside. No doubt, if the amnesty remains overturned under the legal system in the Argentine, that case will lead to a number of prosecutions of child kidnappers and others who abuse children.
That amnesty, like many others in Latin America and elsewhere, arose as military regimes gave way to democratically elected governments. In its wake, amnesty laws were passed virtually everywhere in Latin America. They were passed as blanket amnesties, after serious crimes had occurred, without any recognition of the suffering of the victims and their families; and they were passed without any investigation into the circumstances and without any attribution of responsibility for the commission of those serious crimes.
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That is the problem which exists in relation to blanket amnesties which were granted, as I said, as dictatorships gave way to democracies. Such an approach is wholly incompatible with the scheme—
Lord Monson: My Lords, I am sorry to interrupt the noble Lord. Does he agree that if those amnesties had not been granted, the authoritarian regimes of which he speaks would not have relinquished power? Those Latin American countries might still be under the grip of dictatorship today.
Lord Lester of Herne Hill: My Lords, it is difficult to answer that question as a general proposition. For example, during the Second World War, the allies pursued—in my view, correctly—a policy of unconditional surrender. At the time, some argued that that was a mistaken policy because it prolonged the war. I believe that it was the correct policy. The United States—I want to place this on record in view of some of the things that have been said about the United States—opposed the view of Sir Winston Churchill. Churchill's view was that we should, in his words, simply "string up" the war criminals at the nearest lamppost without a trial.
The United States took the contrary view that due process, in every sense, should be followed at the Nuremberg military tribunal. It deputed Justice Robert Jackson from the Supreme Court of the United States to become the prosecutor on its behalf. In my view, the stance adopted by the United States was correct, and the policy of unconditional surrender was also correct. However, it was a political judgment which may well have led to a prolongation of the war. The truth is that one can only answer that question in the light of the particular political circumstances at the time.
The point that I seek to make is simply that a blanket amnesty which involves no investigation of the circumstances, nothing for the victims, and no attribution of responsibility is incompatible with the scheme of the statute. It would allow countries to shield war criminals and those who commit crimes of genocide and crimes against humanity. That is why I do not support Amendment No. 4.
Lord Lamont of Lerwick: My Lords, is there not a great deal of difference between a situation of international conflict, such as the Second World War, in relation to which I accept what the noble Lord says about unconditional surrender, and a situation which arises internally within a country? If one applies such absolutist standards, it is not we who suffer, as we suffered in the Second World War; it is the people of that country who suffer because a regime, which otherwise would give way, is kept in power. Would it not be better if Fidel Castro was given an amnesty for the future and was exempted from charges relating to the 40,000 deaths attributed to his regime?
7.45 p.m.
Lord Lester of Herne Hill: My Lords, there is a difference between war among states, a situation of

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internal armed conflict, and a situation which comes within the domestic frontiers of a state alone. However, the character of the crimes with which one is concerned remains the same. Genocide is genocide, whether it is committed against German Jews by the Nazis within Germany or against Jews in Poland. The fact that, in one case, the crime transcends national frontiers and, in the other, is entirely internal is regarded in international human rights law and humanitarian law as making no difference. Those are genuinely universal crimes; they are as much the concern of the world as the old crimes of piracy and slavery, which long ago were recognised to be crimes of a universal character.
Therefore, my answer to the noble Lord is that, of course, politically there may be differences. However, in terms of responsibility for crimes of that character, that responsibility is universally international. Blanket amnesties are incompatible with the statute.
So far as concerns Amendment No. 5, which relates to the Good Friday agreement, I want to make a small, technical point and I shall make it briefly. The statute is not retrospective and therefore would not apply to offences committed before the statute came into force. Therefore, that amendment, which I do not believe is pressed seriously, would be inept.
Amendment No. 6 would mean that if, for example, Syria did not ratify the ICC Statute and a Syrian citizen made his way to Israel, where he participated in a heinous crime against humanity, he would be entirely safe from prosecution by the ICC if he made his way to the United Kingdom. Obviously that would also be in breach of the statute and, in my submission, should be opposed on that ground.
Lord Goodhart: My Lords, I rise simply to deal with an aspect of Amendment No. 4. I am a member of the International Commission of Jurists, which is an international human rights organisation. Quite frankly, at present one of the most serious problems in relation to international human rights law is impunity. Impunity a rises when, as a result of an amnesty or for other reasons, those who have perpetrated grave crimes against humanity, genocide or whatever, within their own country are not capable of being brought to prosecution.
In relation to amnesties, one sees in South Africa an exceptional situation. I believe that the work of Archbishop Tutu's Truth Commission has been astonishing and has been admired around the world. I do not believe that a prosecutor of the International Criminal Court would be likely to take the view that an amnesty given as a result of that commission would be in breach of human rights law. I would not in any circumstances expect to see a prosecution.
However, that is the exception and not the rule. In far too many countries elsewhere—particularly in Latin America—new governments, many of them democratic, have, under pressure from the military regimes, agreed to give amnesties for grave crimes against humanity committed by the previous military regimes. That may or may not be a necessity as regards the internal politics of those countries.
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I do not believe that that is any reason why other countries should be prevented from investigating the guilt of those who are alleged to have committed grave crimes if they come within the jurisdiction of another country or of the International Criminal Court. For that reason I feel very strongly that acceptance of Amendment No. 4, which would release from the jurisdiction of the International Criminal Court those who have been amnestied under pressure, would not be right and proper. I most strongly oppose it.
Lord Howell of Guildford: My Lords, I wish to speak briefly to Amendments Nos 4 and 5 in the name of my noble friend Lord Lamont. These are very interesting and important amendments. Even in this brief debate they bring out the problem that we are dealing with a clash of two very noble cultures. One is that justice must be upheld and that the legal systems of the planet must be so designed to hunt down the butchers, which is completely right, and the other is that we need to seek peace. That requires sometimes statesmen and sometimes forgiveness and the blotting out of memories on an heroic scale. I am not sure that we would have peace in Europe today unless to some degree we were prepared to yield to the second culture as well as uphold the first. They do clash and there is no way round that. No one wants military governments or crimes to go unpunished, but we want peace. Sometimes these highly noble aims conflict head on.
I believe that the noble Lord, Lord Lester, put his finger on it, as one would expect, when he said that no general propositions were possible over the amnesty question. There are good and bad amnesties, cheat amnesties and desperately needed ones. We are going to move into that world more and more. That reinforces the point I was unsuccessfully making in the previous debate that if we can introduce some flexibility into the statute, we might be living in a better world than if there is none. When we are told, "I am sorry, it is not possible because it is incompatible with the statute", that is the voice of rigidity and of maybe noble ideals, but making absolutely certain that in future those noble ideals will come under impossible strain. That is sad.
Lord Lester of Herne Hill: My Lords, I wonder whether the noble Lord is aware that discretion is built into the statute for the independent prosecutor to exercise his or her judgment in a matter. A truth and reconciliation commission investigating the sort of case my noble friend Lord Goodhart mentioned, properly investigating all the facts and acting in a completely different spirit from the type of case to which I was referring, would no doubt be taken into account by the prosecutor. It would be inconceivable to imagine a prosecution.
Lord Howell of Guildford: My Lords, I was aware of that. Again, we have what from one point of view appears to be a sensible amnesty and from another it may seem to be an intolerable brushing aside of terrible crimes committed and victims ignored, to use

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the reference of the noble Lord made. Those are the kinds of issues that may need to be argued. There may be an unforeseeable situation where a different view is taken initially by the prosecutor or by the pre-trial chamber from that held by a nation state that an amnesty is needed in order to move on from some dark difficulty. I do not know.
Lord Monson: My Lords, to reinforce the point that the noble Lord was making, would he agree that in 1943 Winston Churchill decided to pardon and not prosecute Italian generals who were guilty of grave war crimes in the Balkans? He did so because he considered that course to be the lesser of two evils and that it would help to speed up the conclusion of the war against Nazi Germany, which was the greater of the two evils.
Lord Howell of Guildford: My Lords, I am grateful for that fascinating history lesson. I suspect that history is littered with such instances and the future will be as well, even though we want to make it a better world than anything which existed 57 years ago in Europe. I shall be very interested to hear the noble Baroness's reply to my noble friend on this matter.
As regards the amendment relating to Northern Ireland, we have all said to each other umpteen times that this Bill is not retrospective and nor is the power of the court. But the Northern Ireland problem is not yet solved. The peace process is by no means in the bag. The concessions which may have to be made on both sides have by no means come to an end. There may be many difficult decisions ahead and some of them could clash with the apparent incompatibility and the requirements of the Bill. I look forward to hearing the observations of the Minister.
Baroness Scotland of Asthal: My Lords, I resist all three of the amendments. I shall deal with them in turn. As regards amnesties, the crimes which the ICC will prosecute are, as noble Lords know, some of the most serious imaginable for which amnesties would rarely be appropriate. The noble Lord, Lord Lester, has already said that the ICC prosecutor has a discretion not to institute a prosecution in the interests of justice. That may be appropriate where a fair and democratically supported amnesty has been proclaimed. The South African situation immediately springs to mind.
In negotiating the statute, we have constantly to strike a balance between upholding our own system, which we believe should stand up to any amount of challenge, and introducing huge gaps into the statute which could be used by dictators to avoid justice for their own people by introducing amnesties with no democratic support. We believe that we have got it right and that the principle of "complementarity" will allow us to take our own decisions in the context of our own well-respected judicial system.
The key point here is that the matter is for the ICC to determine. If the question of a domestic amnesty arose in respect of an individual whom the ICC wishes
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to investigate, the state concerned would no doubt take that up with the court at the point it was notified that an investigation was being considered. If there were to be a difference of will, it would promote reconciliation in war-torn societies by rightly placing responsibilities on individuals rather than on the communities.
I am sure that it is also of interest to the House to note that the Rome Statute provides that, if an investigation or prosecution would harm international peace and security, the UN Security Council will have the power under a Chapter VII resolution to request the ICC to defer action for an initial period of 12 months, which could be renewed. I hope that that is of some reassurance to the noble Lord and the House in relation to the substance of his amendment.
Perhaps I may touch on two other matters. The noble Lord again raised the position of my right honourable friend Mr Hain as regards commments he is alleged to have made in relation to Jonas Savimbi. I believe later he mentioned SANCO. I am surprised that the noble Lord should raise this issue for, I believe, the second time because my right honourable friend Peter Hain wrote to the noble Lord, Lord Lamont, on 24th August last year to set out his position in response to the comments made by the noble Lord that Mr Hain had called for immunity for Savimbi. In his letter Mr Hain stated that he had given no speeches calling for immunity from prosecution for Jonas Savimbi, as claimed. He made it clear in terms that,
"I consider him to bear prime responsibility for the continued conflict in Angola and the suffering of hundreds of thousands of Angolans. Leaders like Savimbi are living examples of why support for the International Criminal Court is so strong".
He went on to say:
"Our first priority is and should be to stop the killing in Angola. The best outcome would be a negotiated settlement, which would inevitably include UNITA. For the higher purpose of saving lives, it may be necessary to enter into careful negotiations with Savimbi in the first instance and a safe passage may be an issue here. But that would not amount to ignoring his crimes or offering immunity".
My honourable friend made it clear that no amnesty was being suggested.
8 p.m.
Lord Lamont of Lerwick: My Lords, I intervene because I do not wish to be accused of misrepresenting the Minister of State. I said that his comments were reported. I checked with the newspaper that reported the comments and it maintains that its report was accurate. When I wrote to Mr Hain a second time about the matter, he wrote back to me saying, "I did use the words that you quote". He confirmed that he had used them. The last part of the remarks that the noble Baroness read out was not a direct quotation.
Baroness Scotland of Asthal: My Lords, my honourable friend went on to say that unfortunately the newspapers did not quote all that he had said—they never do—because they did not report all of the comments that I have just read out. I am sure that the noble Lord agrees that that was made plain in the letters. I have both letters with me; if it helps the noble

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Lord to refresh his memory, I could read out all of them. I notice that I am the one wearing glasses; I do not know whether the noble Lord needs them to help him.
On the SANCO immunity, a difficult decision was made at a time when people were trying to bring to an end appalling violence. The amnesty that they gave at that stage did not relieve perpetrators of war crimes of their responsibilities under international law. Subsequent events indicate that the amnesties will not bring peace so long as those responsible for past crimes retain their evil ambitions and see the desire for peace as a sign of weakness. Justice places responsibility for crimes on individuals, not communities. If we really want reconciliation, it is important to deal in a fair and proper way with such matters.
I turn to Amendment No. 5, which the Government cannot accept. First, it would breach our obligations to the ICC. Secondly, it appears to give life-long immunity from prosecution to anyone who is released following the Good Friday agreement, whatever the crimes they may subsequently commit. That is not, I confess, an idea that we could ever countenance. Thirdly—I say this with the greatest respect—the amendment is utterly unnecessary. No ICC crimes have been committed in Northern Ireland and we sincerely hope that they never will be. However horrendous the individual terrorist atrocities have been in Northern Ireland, they are not war crimes as defined under international law. They would not therefore come under the jurisdiction of the ICC.
Lord Lamont of Lerwick: My Lords, will the Minister please explain why crimes committed in Northern Ireland would not come under the heading of genocide? The ICC statute states,
"'genocide' means … acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such … Causing serious bodily or mental harm to members of the group".
Baroness Scotland of Asthal: My Lords, the mere recitation of that definition should dictate why the struggles and difficulties in Northern Ireland do not fall under it. It has never been suggested that the term could properly be applied to Northern Ireland; there has been a deal of agreement on that.
Lord Lamont of Lerwick: My Lords, why not?
Baroness Scotland of Asthal: My Lords, because sense usually prevails, which is appropriate.
Lord Lester of Herne Hill: My Lords, does the Minister agree that one answer to that question is that whatever monstrous acts of terrorism have been committed by either side in Northern Ireland, they are not directed towards the destruction of the Catholic or Protestant populations or their ethnic forebears on the Celtic or Gaelic sides? The suggestion is a sort of insult—I know that no insult was intended by the
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noble Lord, Lord Lamont—to the concept of genocide; the suggestion might devalue the concept, which is directed at, for example, the holocaust.
Baroness Scotland of Asthal: My Lords, I most respectfully agree with those comments.
The fourth reason that we cannot agree to the amendment is that were such ICC crimes ever to be committed in the future, they would be investigated and prosecuted by the appropriate domestic authorities. As a result, the ICC would not have jurisdiction. I respectfully suggest that although the noble Lord, Lord Lamont, wishes to conflate the situation in Northern Ireland with those in other parts of the world, it is important to remember that the early release of prisoners is not an amnesty. There has been no amnesty for prisoners released under the Northern Ireland (Sentences) Act. All such people have had to serve a minimum period in custody prior to release. Moreover, no outstanding prosecutions have been dropped.
Fifthly, in so far as the noble Lord wishes to raise the hypothetical argument that the ICC would wish to have jurisdiction over war criminals in another country who have been released on licence under a peace agreement, I respectfully suggest that he might with advantage glance at paragraph 3 of Article 20 of the ICC Statute. That makes it clear that there are very limited circumstances in which the ICC could try someone who has already been tried,
"with respect to the same conduct",
and that there are carefully drafted criteria on which such decisions would be made. I hope that my answers encourage the noble Lord to withdraw Amendment No. 5.
I turn to Amendment No. 6. I regret that I cannot accept that amendment either. The import of the noble Lord's suggestion was that we should not surrender to the ICC any national of a state that is not a party to the ICC, however appalling the crimes he may have committed. That is contrary to Article 12 of the Rome Statute, which states that the court may exercise its jurisdiction if either the state of nationality of the accused or the state on whose territory the crime was alleged to have been committed is a party to the court. The statute also provides that a non-party state can consent to the ICC's investigating a crime on its territory or that of its nationals. The ICC will therefore have jurisdiction over citizens of a country that has not ratified the statute only where they have committed their crimes on the territory of the state party, where the non-party state in question has given its consent or where the Security Council has referred to the court a threat to international peace and security.
The noble Lord asked about paragraph 3 of Article 12. The short answer is that a non-state party will not be able to refer cases to the ICC. The ICC Statute will enable the court to investigate crimes committed by rogue states on the territories of state parties. To take an historical example, it would have dealt with war crimes alleged during the invasion of Kuwait by Iraq if Iraq were a state party, which we might safely

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assume it would not be. If the ICC were not able to act in such circumstances in future, the message to nonparty states would be that they may safely commit ICC crimes with impunity anywhere in the world.
I agree with those noble Lords whose spoke against the amendments. I hope that, having considered the matter, the noble Lord will not test the opinion of the House on any of the amendments.
Lord Lamont of Lerwick: My Lords, I am grateful to the noble Baroness for her reply. However, with the exception of my second and third of my amendments, I remain extremely unconvinced.
It seemed to me that the noble Baroness's reference to international peace and the UN does not deal with the situation of a civil war. I can imagine several situations in several countries where it would be better were an amnesty to be announced and the past forgotten in order to end a conflict. I can think of the very obvious example of Colombia. The most terrible things are happening in Colombia and yet negotiations are taking place between two groups of people. The most terrible crimes have been committed on at least two sides, if not on three sides. Would it not be much better if there were an amnesty and the conflict were ended? No good would come from outside agencies deciding to intervene; deciding to haul people before some international court.
I accept some of the points which the noble Baroness made about my amendment relating to Northern Ireland. The noble Baroness can play with words and she can say that things mean what she wants them to mean. She shakes her head but she has no justification in logic. The fact is that in the name of politics we have set aside the due process of law in order to achieve a political settlement. We are so high and mighty that we think we can deny that to other countries but we do it to ourselves. That is the flaw in this whole international court: its inflexibility will apply only to the weak, to the small. When it comes to the large and powerful country, it will not apply to them. As the noble Lord, Lord Robertson, said the other day, the defendants brought before the ICC will be,
"from countries with no superpower support".
That is the real difference.
When we want the court to be flexible, when it has to be flexible, it will be made flexible. But when there are little countries to be bullied and we can go round meddling in the name of justice, with support from the NGOs, then we shall interfere anywhere, even that means that a civil war will last longer and lives will be lost as a result.
I am afraid that I was totally unpersuaded by the noble Baroness's attempt to say that what has happened in Northern Ireland does not fall within the definition of genocide. Causing serious bodily or mental harm to members of a group plainly falls within that definition.
Lord Avebury: My Lords, does the noble Lord not think that the whole point of the International
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Criminal Court is to deter atrocities of the kind which have been committed in Colombia? If the ICC had been in operation all those years, perhaps the atrocities that have occurred in that unhappy country would have been mitigated.
Lord Lamont of Lerwick: My Lords, I fear that that is unrealistic. The financial gain that is at stake in Colombia is so immense that I fear that that is wishful thinking. I disagree with the point which the noble Lord is making and has made before; namely, that somehow the ICC will deter things that have happened in the past from happening in the future. I see no reason why that should be the case. It may be that a few dictators will travel rather less than they have travelled before but they will be less likely to stand down. We shall not find Fidel Castro taking a country house in Andalucia, which might be the best of all possible worlds.
I am not persuaded by what the noble Baroness said and I should like to test the opinion of the House on Amendment No. 4.
8.14 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 30; Not-Contents, 88.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Kingsland, L.

Astor of Hever, L.

Lamont of Lerwick. L. [Teller]

Attlee, E.

Lyell. L.

Bridgeman, V.

Monson, L.

Buscombe, B.

Montrose, D.

Byford, B.

Murton of Lindisfarne. L.

Colwyn, L.

Newton of Braintree, L.

Crickhowell, L.

Northbrook, L.

Dixon-Smith. L.

Northesk, E.[Teller]

Dundee, E.

Onslow, E.

Fookes, B.

Park of Monmouth, B.

Geddes, L.

Renton, L.

Glentoran, L.

Shrewsbury, E.

Henley, L.

Skelmersdale, L.

Howell of Guildford, L.

Tebbit, L.

NOT-CONTENTS

Acton, L.

Carter, L.[Teller]

Addington, L.

Chandos, V.

Amos, B.

Clement-Jones, L.

Andrews, B.

Cocks of Hartcliffe, L.

Archer of Sandwell, L.

Davies of Coity, L.

Avebury, L.

Davies of Oldham, L.

Barker, B.

Desai, L.

Bassam of Brighton, L.

Dubs, L.

Berkeley, L.

Evans of Parkside, L.

Billingham, B.

Farrington of Ribbleton, B.

Blackstone, B.

Faulkner of Worcester, L.

Borrie, L.

Filkin, L.

Bradshaw, L.

Fyfe of Fairfield, L.

Brennan, L.

Gale, B.

Brett, L.

Gibson of Market Rasen, B.

Brooke of Alverthorpe, L.

Goldsmith, L.

Brookman, L.

Goodhart, L.

Burlison, L.

Gould of Potternewton, B.

387

Greaves, L.

Northover, B.

Grenfell. L.

Oakeshott of Seagrove Bay, L.

Hamwee, B.

Phillips of Sudbury, L.

Hardy of Wath, L.

Puttnam, L.

Harris of Haringey, L.

Ramsay of Cartvale, B.

Harris of Richmond, B.

Rendell of Babergh, B.

Haskel, L.

Russell, E.

Hayman, B.

Scotland of Asthal, B.

Hilton of Eggardon, B.

Scott of Needham Market, B.

Hollis of Heigham, B.

Shutt of Greetland, L.

Howells of St. Davids, B.

Simon, V.

Hoyle, L.

Smith or Clifton, L.

Hunt of Kings Heath, L.

Stone of Blackheath, L.

Irvine of Lairg, L. (Lord

Taylor of Blackburn, L.

Chanceller)

Thomas of Gresford, L.

King of West Bromwich, L.

Thornton, B.

Lea of Crondall, L.

Tomlinson, L.

Lester of Herne Hill, L.

Turnberg, L.

McIntosh of Haringey, L.

Turner of Camden, B.

[Teller]

Walker of Doncaster, L.

McIntosh of Hudnall, B.

Warner, L.

Mackenzie of Framwellgate, L.

Whitaker, B.

Maddock, B.

Whitty, L.

Mar and Kellie, E.

Wilkins, B.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

Mitchell, L.

Winston, L.

Morris of Manchester, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 5 and 6 not moved.]
Baroness Ramsay of Cartvale: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 9.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Rail Electrification
8.24 p.m.
Lord Bradshaw Lord Bradshaw rose to ask Her Majesty's Government whether the possibility of a world shortage of oil should influence strategic plans for the electrification of a greater part of the railway system.
The noble Lord said: My Lords, before speaking I must declare my interests as a member of the Strategic Rail Authority and of the Commission for Integrated Transport. Neither body has been involved in any way in preparing what I have to say. As my membership of those bodies and my membership of your Lordships' House has from time to time been a matter of contention with officials, I have informed the Minister and the chairmen of both bodies of my intention not to seek reappointment to the SRA in June when my appointment expires, and to resign from the Commission for Integrated Transport at the same time. I have always observed the Addison rules assiduously and I do not want to embarrass either chairman for whom I have the greatest respect.
I put forward tonight's Unstarred Question for debate at the time of the fuel crisis last year. At that time, it became evident that if oil fell into short supply, industry, commerce and personal journeys would quickly become adversely affected.
I do not intend to revisit the fuel crisis. It may be that the Government, through robust action, would have been able to stabilise the situation at least by directing available oil supplies to priority users so that the country would not have ground to a halt. I sincerely hope that that would have been the case because I have no desire to see the government of the country subverted by those who would use non-democratic means to achieve their ends.
The fuel crisis gave us the opportunity to consider how dependent our transport systems—road, rail and air—are upon oil. It also called to mind a conference that I attended in the late 1970s which included representatives of major oil companies, where the possibility of what they called a geo-political accident in a major oil producing area—presumably the Middle East—would destabilise world oil supplies. We have since experienced the Iraqi invasion of Kuwait. The Middle East remains vulnerable to political destabilisation, as do other oil-producing areas, and OPEC has the potential of any cartel to exert great pressure upon dependent consumers.
My object tonight is to consider, and to invite the Government to consider, the strategic implications of a sustained world shortage of oil and particularly the implications of that for Britain. I want to focus on the part that an electrified railway system might have in mitigating those effects.
Only 38 per cent of the British railway network is electrified. In the 1999 Network Management Statement, Railtrack forecast that that is likely to grow by very little over the next 10 years. Meanwhile in Europe, where we face great competitive pressure, France has 45 per cent of the network wired up, Germany 49 per cent, Italy 65 per cent, Holland 73 per cent, Belgium 74 per cent and Switzerland 100 per cent.
Apart from the fact that a small part of our railway network is electrified, we have seen a tendency for new investment not to use the potential of that part of the system which is so equipped. Almost all new freight locomotives are diesels. The Virgin hid for the East Coast Main Line franchise includes the use of powerful diesel trains. New trains used by Anglia Railways between London and Norwich—a wholly electrified line—are diesels. So in considering whether an electrified railway has a significant role to play in providing an alternative to the use of oil as a fuel, we must consider the provision of new rolling stock as well as the infrastructure.
In 1980, when I worked for the British Railways Board, the Department of Transport and the board published a review of the case for main line electrification. That concluded that a substantial programme of main line electrification would be financially worth while, with all the larger options showing an internal rate of return of about 11 per cent. Those forecasts were based on traffic predictions well below those considered likely at the time.
That review proposed that a large fast option be adopted to be completed over 20 years. It included the East Coast Main Line as far as Edinburgh and

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Aberdeen; a trans-Pennine route, a cross-country route between York and Bristol and to Reading and most of the Great Western Main Line. Of that only the East Coast Main Line has been completed as far as Edinburgh.
In addition, small extensions to electrification have been made around Birmingham and Leeds. The review suggested that up to 80 per cent of passenger and 70 per cent of freight would be electrically hauled. Part of the proposition was that three or four teams should be assembled to carry out a continuing work programme over 20 years. Industry would equip itself and train people to carry out the work.
That programme was not adopted, and very recently Roger Ford, a pre-eminent commentator on railway affairs, wrote in Modern Railways,
"Electrification is off the SRA's agenda".
He went on:
"In 21st century Britain, extension of railway electrification is both difficult to implement and hard to pay for and in no one's commercial interest".
He goes on to explain the fact that Railtrack would have to pay compensation for the disruption caused while the work progressed and that rolling stock leasing companies would rather build versatile "go anywhere" diesel trains than electric trains, which are more limited in their deployment capability.
Roger Ford goes on to quote from the reply to a letter sent to the SRA asking about the prospects for electrification. The reply states that,
"future electrification is likely to depend on comparative prices of energy and maintenance costs".
In that case, Mr Ford concludes, that the strategic case for the extension of electrification is weak.
Investors, be they private investors or those spending public money, work within the constraint of earning a return on their investment over a relatively short time-scale. They use financial discount rates which place great emphasis on the short term. Where social benefits are involved, these must be clearly identified and costed. Where the benefit is uncertain and strategic in nature, such as defending the nation from the effects of an oil crisis, the benefits are such that they cannot be accommodated within our present systems of financial appraisal.
We now come to the nub of the argument and the reason for tonight's debate. If as a country we are prepared to spend large sums of money under our military budget to secure our oil supplies, surely there is an argument for spending a very small proportion of this money in providing for a largely electric railway which would offer an alternative means of transport to many people and to freight users if oil suddenly became short.
If the Strategic Rail Authority were told to prepare with Railtrack, the train operators, and the rolling stock companies a 20-year programme of electrification and to build that into the franchise programme, the issue to be addressed is the cost that
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would be added to the modernisation which is in prospect already. To put that clearly: what costs would arise over and above those of a mainly diesel railway?
This extra money is, in effect, a strategic supplement. We ought to know what it is and whether it is a premium we are prepared as a country to pay to defend ourselves—in part—from the effect of an oil shortage.
My purpose tonight is to ask the Government to ask the SRA what amount of money is involved and to ask themselves, in a strategic sense, whether this premium would be worth paying. I do not know whether it is, but I am sure that it would be a fraction of our defence budget. In preparing for tonight's debate, I tried hard to discover the cost of maintaining the no-fly zones in Iraq. I can assure your Lordships that it is very high, but several Questions tabled by honourable Members in another place have failed to produce a figure to put before the House tonight.
I believe that it would cost little to find out the answer to my question from within the railways. I believe that government, as they are responsible for the defence of the realm, ought to know and ought to give serious consideration to the issue.
8.35 p.m.
Lord Faulkner of Worcester: My Lords, I congratulate the noble Lord, Lord Bradshaw, on securing tonight's debate. I agree with a great deal of what he said. He comes to the subject with a distinguished record of having run a substantial part of the publicly owned railway in the 1980s at the same time as I had a modest role as an adviser to the British Railways Board. Therefore, it is not surprising that he and I are at one on the issue of railway electrification.
Railway electrification and the way in which it has been handled by successive governments is a topic which demonstrates more clearly than any other what were first the weaknesses of public ownership and are now the failures of privatisation. The reason for that is because of the refusal to look beyond the very short term. The noble Lord, Lord Bradshaw, referred to the review of main line electrification, which was produced jointly by the Department of Transport and the British Railways Board and submitted to Sir Norman Fowler, then Secretary of State for Transport, and to Peter Parker, chairman of BR, in 1981.
Had the review's conclusions been accepted then, and the work started in 1981, we could by last year have had 7,710 track miles and 3,410 route miles electrified, with all the principal main lines in England, Wales and Scotland served by electric trains. Towns and cities as far apart as Penzance, Swansea, Holyhead, Hull and Aberdeen would have benefited from being on an electrified InterCity network.
Furthermore, even on the most cautious assumptions about passenger and freight growth, such a programme would have produced an internal rate of return of 11.1 per cent and a net present value surplus of £255 million on 1978 money values and a 7 per cent discount rate.

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The noble Lord, Lord Bradshaw, rightly drew attention to the dangers of the economy being heavily dependent on oil and the joint review calculated that with 80 per cent of passenger and 70 per cent of freight trains electrically hauled, 120 million gallons of oil a year would be saved.
In addition, an electrified railway is cleaner, quieter and safer. It is cheaper to maintain. Had the programme proceeded through the 1980s and 1990s, we would also have retained an indigenous railway manufacturing industry in the UK, with substantial orders for suppliers in both the private and public sectors, and the prospect of competing successfully for overseas electrification work. As it is, virtually no industry of that kind remains.
So why did it not happen? The answer is because the British Railways Board was unable to get anything that resembled long-term planning agreed by the Treasury. The mandarins looked at the electrification review and saw that the pay-back years were well into the future—20 years or more after the programme started.
That kind of consideration did not deter the great railway pioneers of the 19th century who were willing to plan a generation ahead. Nor did it apply to the state railways of continental Europe, such as those in France, Germany and Italy, all of which electrified in the 1950s and 1960s and have invested significantly in the decades subsequently, while our investment has stagnated.
All we got in the 1980s was piece-meal electrification, such as the East Coast Main Line as far as Edinburgh, plus some suburban commuter services, to which the noble Lord, Lord Bradshaw, referred. Virtually nothing happened in the 1990s as the industry was being prepared for privatisation and when six months ahead seemed a dangerously long time to plan.
So the wires have not gone beyond Bedford on the Midland Main Line; there are no electric services out of Paddington, except the Heathrow Express; and there are numerous gaps in the network where either it is necessary to change from electric traction to diesel and back to electric again, or—and this is happening increasingly—running diesel trains under the electric wires.
Short-termism has bedevilled railway planning for as long as I was associated with the industry and it really must not go on any longer. But with privatisation it has become much worse. No company with a franchise of seven years or less will be interested in an investment whose payback cannot be achieved until long after the franchise has expired.
The noble Lord, Lord Bradshaw, quoted Roger Ford's article in the current edition of Modern Railways. Sadly, I must agree that both he and Mr Ford are correct. I should like to think that if the Strategic Rail Authority plans to offer franchises of 20 years or more, electrification can go back on the agenda. But is the SRA promoting electrification? According to Mr Ford, no. He relates what happened when one of his friends asked the SRA about the
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prospects. The noble Lord, Lord Bradshaw, referred to that. Perhaps I may refer to a further passage. Roger Ford states:
"The SRA claims that diesel trains have recently proved more reliable than electric".
Mr Ford says,
"Good grief",
and then explains in some detail how much more reliable are electric than diesel trains, pointing out as an example that the Heathrow Express runs an average of 80,000 miles per breakdown compared with 4,500 to 5,000 miles for a diesel Turbostar.
I hope that the SRA will study the report of this debate and come to the view that if it is to make a reality of the word "Strategic" in its title electrification must be part of that strategy.
8.41 p.m.
The Earl of Mar and Kellie: My Lords, I am also grateful to my noble friend for tabling this Question which I believe to be of strategic importance to the enhancement and sustainable development of our railway network and its preparation for the future. As usual, I shall speak from a Scottish perspective and a lifelong interest in railway operation. Scotland has electrified railways in the south: the East and West Coast Main Lines. These enable one to travel from Carlisle to Berwick via Glasgow, Carstairs and Edinburgh. There are also the former Blue Train routes within the area of the Strathclyde Passenger Transport Executive. Nor should one forget the North Berwick branch line.
It is clear that electrification is an expensive process and that prioritisation is necessary. With that in mind, I hope that the DETR and the noble Lord, Lord Whitty, agree that the order of priority for electrification in Scotland is to begin with the Aberdeen line, which has always been a long and hard route. GNER, Scotrail Sleepers and Virgin run very long distance diesel trains of increasing age, from the south of England to Aberdeen. Those services are subject to late arrivals due to the length of route.
Follow that with the Edinburgh to Glasgow route via Falkirk High. That route, which is run by Scotrail National Express, now enjoys a quarter-hourly service using a mixture of new class 170 Turbostars and more elderly class 158s. I believe that that appropriately intensive service over the 44 miles between the two cities is well within the threshold for electrification on the grounds of diesel fuel use alone. To maintain the quarter-hourly service requires at least eight trains to be in motion at any one time. As each carriage is self-propelled the fuel consumption must be unacceptably very high.
After those two, I recommend the electrification of the Glasgow-Perth-Dundee route. I recognise that electrification, with all its momentary disruption and cost, will be unattractive in a free market setting at any one moment. It is unlikely to be attractive until the price differential between electricity and diesel fuel has widened substantially. Surely, that is the point of government taking upon themselves the opportunity

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to intervene in the privatised rail industry. The Strategic Rail Authority should be instructed to develop a presumption in favour of electrification and to follow that by making available investment plans to fulfil that strategic objective. It would mean that for Scotland all the principal Anglo-Scottish services would be modernised and the intensive intercity service in the central belt would be more environmentally sustainable.
I conclude by acknowledging that I have ignored the Highland main line. The railway to Inverness must be prioritised, albeit lower down the list. There are but two Anglo-Scottish trains on that line, one day and one sleeper. But I draw attention to the oil and gas exploration which is beginning to develop in the Atlantic around the Hebrides and west of Orkney and Shetland. I am impressed by the efforts of the Scrabster Harbour Board, chaired admirably by Viscount Thurso, to prepare its harbour to serve the future eastern Atlantic oil and gas fields.
I believe that the Highland main line and the far north line, albeit unwired, must be ready to handle the freight traffic in this connection. It would be tragic if one experienced something similar to the loss of the Buchan line, which denied Peterhead what should have been a very strategic rail link. To go back to my noble friend's Question, such potential traffic must not be threatened by a shortage of traction fuel. An electrified railway must be as complete a network as possible. The recent loss of the East Coast Main Line at Selby has caused a diversion via the Leeds line, which is not electrified. A complete network is one in which there is no need to change trains or mode of traction and through working is as available as practical.
8.46 p.m.
Lord Berkeley: My Lords, I congratulate the noble Lord, Lord Bradshaw, on tabling this debate which is a fitting end (if I may say so) to his period with the Strategic Rail Authority, encouraging that body to look strategically. Listening to that speech and to that of my noble friend Lord Faulkner, one begins to believe that if they had been running the railways for the past 20 years, the railways would not be in their present state. But we are where we are. I believe that the argument for electrification advanced by the noble Lord, Lord Bradshaw, is very persuasive, provided there is a secure supply. That is the subject on which I want to focus.
I welcome electrification for passenger services. In declaring an interest as chairman of the Rail Freight Group, I also welcome it for freight if there is 100 per cent coverage, as in Switzerland, as the noble Lord pointed out. Half and half is not a very good thing. The problem is whether, if an oil crisis arises, electricity will be in plentiful supply. Sadly, the days when we burnt British coal to keep our electric trains running are over.
The 22nd report of the Royal Commission on Environmental Pollution, entitled Energy—The Changing Climate, provides some interesting forecasts
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about the UK's energy consumption and resources in 2010. I give them in ascending percentages: renewables, 4 per cent; nuclear, 6 per cent; coal, 10 per cent; oil, 30 per cent; and natural gas, 40 per cent. Let us consider how much of these sources of energy are imported and from where. Obviously, renewables and nuclear are UK-based. Some coal still comes from the UK, but not very much. A good deal of coal is imported, but often from politically stable countries. Most of our oil is imported from countries that are not very stable. Not much of the 40 per cent of natural gas is imported, but that will increase in future.
Paragraph 377 of the report, Electricity from Renewables, from the Select Committee on the European Communities states that there is evidence from Climate Network Europe to suggest that by 2020 70 per cent of the EU's energy requirements will be imported. Much of that will be gas from Algeria and from east of the Black Sea which is supplied by Russia. If one wished, one could comment on the political stability of those countries.
Electricity is being generated in increasing volume from gas, much of which in future will come from abroad. I am concerned about whether the supply of fuel for electricity for trains will be much more reliable than that of oil fuel for trains. If there was a secure electricity supply the position could be different. Noble Lords will recall that for many years London Underground generated its own electricity at Lotts Road. I do not believe that it still does so. Could the railways themselves do it today?
In the past few weeks Questions have been asked in your Lordships' House about renewables. Government policy is very much to encourage renewables. One wonders whether Railtrack can take a lead in encouraging the development of renewable energy, be it windmills offshore, solar energy or other sources, to assist in providing a stable supply. It could even mean encouragement of local production and delivery. I do not suggest that 100 per cent would need to come from there, but it would encourage renewables and give some long-term strategic thinking to the electrification programme. It might cost a little more, but it would certainly be a useful element in two long-term government strategies: first, to ensure transport in this country in the event of an emergency, lack of oil supplies and possibly lack of gas supplies; and, secondly, to encourage the development of renewables.
Given such a secure supply, a wide network of electrification would be highly desirable. As the noble Lord, Lord Bradshaw, said, if it took 20 years to complete, that would fit in quite well with some of the longer passenger franchises that one understands the Strategic Rail Authority is thinking of awarding. I agree with the noble Lord, Lord Bradshaw. I support the noble Lord's idea that the SRA should be asked to start work on this now. I should like to see it linked to a renewables programme so that when the railways are electrified, we have a secure supply of electricity, at least for the trains.
8.51 p.m.
Lord Shutt of Greetland: My Lords, I, too, am grateful to my noble friend Lord Bradshaw for initiating the debate. He started the debate on the basis of the oil shortage. Other noble Lords have referred to cleanliness and reliability. Reference has been made to the different position in other countries and to the 100 per cent electrification in Switzerland.
My noble friend Lord Bradshaw asks for strategic plans. I wonder whether the Strategic Rail Authority is able to he strategic in these matters when we have the particular way in which passenger rail was privatised, with the leasing of rolling stock in a certain set of hands, operating companies in another and the almighty Railtrack as another pair of hands. How can there be a strategic intervention? I hope that the Government, after four years in office, can find a way through that because I do not believe that there has been an initiative on electrification in that period.
Being strategic is one matter. The electrification of the main line from Paddington to the West Country and South Wales, the Midland line north of Bedford to the East Midlands and to Sheffield and beyond and the electrification between York and Bristol, the cross-country route, is certainly strategic.
Operating by stealth is another way forward. It occurs to me—a matter mentioned by my noble friend Lord Mar and Kellie—that the electrification between Glasgow and Edinburgh would mean an alternative electrified route. We have the electrified route between Liverpool Street and Norwich. Were that to be extended by stealth to Great Yarmouth there would be fewer trains under the wire. It would be the same position between Preston and Blackpool. To electrify the line from Manchester to Liverpool by stealth would be another short line that would increase the amount of railway with electrified wires.
If one could electrify between Liverpool and Manchester, one could soon electrify and link up over the Pennines, and similarly to Hull. One would then have a trans-Pennines route.
One of the most interesting matters of late is that we have learned of the village of Heck. Most people had not heard of that village until a few days ago. We find that twice this year in that area—first, through floods and, secondly, through the tragic accident—trains have not been able to operate between Doncaster and York. Indeed, as we speak, there are buses flying around between Doncaster and York.
There would still be through trains between King's Cross and Newcastle and Edinburgh if the line between Leeds and York—a short 20 miles or so—were electrified. That would make a huge difference. I am in favour—yes, I am in favour—of a strategic plan of electrification. But if we cannot have that, can we have electrification by stealth so that there is still forward movement and the whole technique and possibility of how electrification is done is not lost? Furthermore, teams of people who know how to electrify a railway will be kept together.
8.56 p.m.
Baroness Scott of Needham Market: My Lords, this particular journey started off almost an hour late. The noble Lords dealing with the International Criminal Court Bill are queuing up behind us, but we have kept to time.
It is in the nature of all governments to find that long, medium and short-term all actually kaleidoscope into "When is the next election?" Even that relatively short horizon tends to be blurred much of the time by unforeseen events and even crises from time to time.
One matter that I much appreciate as a new Member of your Lordships' House is the opportunity sometimes to step back from that kind of political fray and take a look into the longer horizon.
I congratulate my noble friend Lord Bradshaw on initiating the debate today. I join other noble Lords in paying tribute to his work on the Strategic: Rail Authority. I have enjoyed other noble Lords' contributions. I have learned a great deal from noble Lords who have spent many years in the rail industry and have much practical experience.
At this early stage, I wish to record my support for the 10-year plan approach adopted by the Government. Ten years represents the medium term in transport planning. It is a marked improvement on the kind of short-termism of which the noble Lord, Lord Faulkner of Worcester, spoke with such passion. Along with the multi-modal studies and the development of regional transport strategies, we begin to get a feeling of some significant improvement in our long-term strategic planning. However, as the noble Lord, Lord Bradshaw, said, we really should be looking at a 20-year strategy for the railway—to look at what new financial mechanisms are needed, to appraise what is required and to work out how the costs can be met.
The fuel crisis last autumn took us all by surprise: first, because we have got out of the habit of having our lives disrupted by that kind of industrial reaction; and, secondly, because the resultant fuel shortages showed us how we have become so dependent on readily available supplies of petrol and diesel. We cannot rule out such an event happening again; neither can we entirely discount the possibility of geo-political upheaval in the Middle East. That might create world shortages of oil. We all know that oil is a finite resource and should not be regarded in the long term as the underpinning source of energy in our economy. The noble Lord, Lord Berkeley, reminded us of the extremely complex way in which our energy needs are met. Indeed, he reminded us about the need for a more robust strategy in relation to renewable energy.
During the mercifully short fuel crisis, there was some evidence of changing behaviour on the part of motorists, not least a rapid rise in the number of people travelling by rail. Unfortunately, the terrible accident at Hatfield a few weeks later led to a rapid reversal in that trend, as services descended into chaos. But worse in the long term was the loss of confidence in the railway system on the part of the travelling public.

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There are many reasons why people choose to travel other than by rail, but safety should not be one of them. Despite the terrible events at Ladbroke Grove, Hatfield and now Selby, rail travel is still far safer than road travel. The tragedies of recent years will be much compounded if people use them as a reason to switch to a more unsafe way of travelling.
It is beyond the scope of this debate to talk about what needs to be done to rebuild confidence and how the railway industry might be structured in the future. My noble friend Lord Shutt of Greetland has shown us how investment in rail infrastructure has in some ways been damaged by the fragmentation of the rail industry in recent years.
I want to speak briefly about my own home region of East Anglia and the rail network that we have at present. Anyone who visits East Anglia will know that at the moment our rail links run almost entirely north/south. That is possibly on the assumption that London would be the only place that anyone would want to go to or get away from. Part of the debate on English regionalism should centre on the need for transport links between regions that are not dependent on travel through London. A more equitable and sustainable pattern of jobs and wealth creation depends on strengthening regions beyond London and the South East.
The noble Lord, Lord Faulkner, referred to places across the country that might have benefited from an earlier investment in electrified lines. My noble friend Lord Mar and Kellie enlightened us—he rather tested our geography—on the needs of the rail network in Scotland. In Suffolk we are fortunate to be the home of the Port of Felixstowe, one of the world's largest container ports and a major employer in the area. It currently handles some 2.7 million units, of which 22 per cent travel by rail. The port has impressive plans for expansion and is keen to increase rail use as part of that process. The current levels of congestion on the A.14 at Cambridge and the A.12 at Chelmsford make it difficult to imagine how that increase might take place on the roads. Significant investment in the rail infrastructure is needed to relieve the congestion on the trunk roads and to take some of the pressure off the rail lines to the north and east of London. In February the SRA announced plans to upgrade the route from Felixstowe to the West Coast Main Line via Peterborough and Leicester. That will provide an alternative route to the West Midlands, the North West and Scotland.
As far as concerns passenger travel, many of the same issues apply. We urgently need investment in the east/west link, which would recreate the link between Bedford and Sandy, and link into the East Coast Main Line. That would mean that people from the east of England could travel to Oxford and beyond, to the West Midlands or to Scotland without having to travel to London. We are also looking forward to the CrossRail links across London to prevent the current situation where it can take as long to transfer between stations in London as the original journey from
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Suffolk. The completion of the Channel Tunnel rail link, with an interchange at Stratford, would provide us with useful rail links.
I have spoken about the East Anglian links, but those points could apply equally apply to any of the regions of our country. The case has been made, and certainly the transport Mafia of your Lordships' House is in agreement. So I think that now we should be looking forward to the action.
9.2 p.m.
Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Bradshaw, for introducing this Unstarred Question. In response to the noble Baroness, Lady Scott, regarding the timing of the debate, I think that the noble Baroness the Government Whip passed a signal at danger. I am sad that the noble Lord, Lord Bradshaw, has relinquished some of his responsibilities.
With the experience on display in your Lordships' House, I hesitate to contribute to the debate. One asks: what is the motivation for electrification of the railways? Electric traction is simple, reliable and enjoys low maintenance. Therefore, it is very attractive. The disadvantage is the high initial infrastructure cost and possibly the risk of electrocution of rail workers, trespassers and suicides. The past difficulty has been with the Treasury. The noble Lord, Lord Faulkner, raised that point during his interesting speech. I have some fears for the 10-year plan. If we hit a recession, the 10-year plan might experience some difficulties.
I was surprised by what the noble Lord, Lord Bradshaw, said about the new build of diesel-powered passenger rolling stock. He went on to explain some of the reasons for that. The noble Lord and others mentioned the flexibility of diesel traction. One of the difficulties of electric traction is that we have two systems. We have the low-voltage third rail system, which is particularly used on the Brighton line, and the high-voltage overhead line system. Therefore, we have something of a flexibility problem with the electric traction system.
Privatisation has meant that these decisions are much more a matter for the rail industry and the SRA. We have moved a little away from the influence of the Treasury. I hope that the industry will take a long-term view of the strategic advantages of electric traction and take note of the suggestions made by noble Lords in the debate today. However, we must recognise that many remote and regional lines have only light traffic and low revenues. Diesel traction will always be better for them in the long-run.
The noble Lord, Lord Bradshaw, made a wider point. At some time in the future, fossil fuels will run out and liquid and gaseous fuels will run out earlier. When that occurs the cost of the fuel will increase. However, in terms of supply, I suggest that the railway industry will be insulated. It will be the last to feel the pinch. The Government also have the necessary powers to make sure that the railway industry has fuel.

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It is clear that electric traction is best for the environment but it is not always possible. We must remember that the electricity has to be generated. We know that coal is dirty. If it is deep-mined in the UK, it is recovered at great personal risk. Gas is clean but there are limited supplies and, unfortunately, gas-powered generation has been limited by the Government's moratorium. More importantly, as was pointed out by the noble Lord, Lord Berkeley, there are worries about the security of supply.
Renewables also have their problems. We are experiencing difficulty in meeting our existing targets for renewables. Most importantly, the absolute capacity of renewables is limited. Renewables are very nice but they are not the answer. One source of power remains. The noble Lord, Lord Berkeley, momentarily and carefully touched on it. I refer to nuclear power. There are obvious difficulties. There is the problem of safety of operation and the potentially greater problem of the disposal of the nuclear waste. The Government are not addressing that problem.
Noble Lords will be aware that the Science and Technology Select Committee of your Lordships' House produced a report, The Management of Nuclear Waste, which was published in March 1999. The Government responded in October 1999. That response is best described as a holding document. Indeed, some noble Lords have described it as a non-response. We were told that a Green Paper would be published, but we have not yet seen it. I believe that this is another example of the Government's failure to deliver. When shall we see that Green Paper? Will the Minister be publishing the Green Paper on the management of nuclear waste before or after the general election?
Does the Minister agree that already we have a considerable amount of nuclear waste that needs to be stored for the long term, and that the industry needs to know what the policy will be? It needs to know the way ahead. Why is the Minister unable to reach a decision and to promulgate it?
Does the Minister believe that we can meet our Kyoto targets and keep to those limits in the future without new build of nuclear power? In asking that question, I am being careful not to advocate whether we should or should not do so. The question merely addresses whether we can meet and keep to our Kyoto targets.
In conclusion, the availability of fuel for our transport is an important issue which will not go away. It will get worse. There are practical difficulties and limits on how much of the railway can be electrified. I believe this to be principally, but not exclusively, a matter for the SRA and the industry. They should pursue the best option.
9.9 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I thank the noble Lord, Lord Bradshaw, for initiating this interesting debate. I appreciate all his work on behalf of the
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Strategic Rail Authority and in serving on the Commission for Integrated Transport, along with his continuing contribution in this House to issues such as the one before us tonight.
I have to say that, until the latest remarks that we have just heard from the noble Baroness, Lady Scott, I had regarded the noble Earl, Lord Attlee, and myself as part of the transport mafia in the House of Lords. However, I believe that he and I dissent slightly from what is the overwhelming view of most of the other contributors to the debate. My task tonight is to introduce an element of caution to the widely expressed enthusiasm for electrification.
First, the premise of this debate relates to the possibility of a world shortage of oil. The International Energy Agency produces an energy outlook, the latest of which forecasts the position until 2025. That may not be quite as far as the noble Lord, Lord Bradshaw, wishes us to look, but nevertheless that is a fair way ahead. The agency does not envisage any shortages in reserves of crude oil over that period.
However, I recognise that there are geo-political accidents, to which the noble Lord referred. That includes political decisions and other forms of disruption and, of course, uncertainty about future prices. The objective of the Government is to try to ensure a balance of fuel supplies in order to offset such future eventualities. However, as my noble friend Lord Berkeley pointed out, other sources of energy in terms of electricity generation are also vulnerable to potential disruption. If we consider gas supplies which, by 2025, will certainly come from Russia, Iran and Algeria, they could well be subject to a degree of instability. Oil supplies from the Middle East could equally be subject to instability. That may not be the same for oil supplies corning from Aberdeen, but we shall see.
The noble Earl, Lord Attlee, referred to nuclear generation. There are, of course, deep uncertainties as regards world attitudes towards nuclear energy. The noble Earl has pressed me to reply to his questions. I understand the anxieties felt in certain parts of this House as regards the Select Committee and decisions to be reached on the publication of the Green Paper on the disposal of nuclear waste. I respect those concerns, but we are dealing with a decision which relates to the problems surrounding disposal of nuclear waste which will become acute in around 50 years' time. Furthermore, the material concerned has a half life of several million years. In that context, I think that a delay of the odd month or two in a response to the concerns of noble Lords—
Earl Attlee: My Lords, I am referring to delays amounting to the odd year or two rather than the odd month or two.
Lord Whitty: My Lords, I believe that I have made my point. Whether the Green Paper will be published before or after a putative election, of which the noble Earl seems to know more than I do, is not for me tonight.

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We must address the strategic problems of the future of the rail industry. The noble Lord rightly referred to the shambolic structure of the rail industry that we inherited and to the need to tighten it. The Strategic Rail Authority is central to that role. As part of its objectives, it must focus on the achievement of sustainable development. Having said that, it is not a necessary consequence that it should adopt a doctrinaire position on electrification in the way suggested by the noble Lord, Lord Bradshaw, and my noble friend Lord Faulkner.
Electric traction has some clear benefits, such as cleanliness, acceleration and maximum speed. It also has downsides, such as visual intrusion, the environmental impacts of the sources of electricity generation and, of course, cost-effectiveness, which feeds back into fuel efficiency. Ultimately, our concern is that we have the right mix of fuels all the way down the production line.
In regard to environmental issues, if we look, as of now, at the relative benefits of diesel traction as against electric traction, there is relatively little to choose between the most up-to-date and latest diesel trains and the electricity traction's share of power station emissions in terms of the current mixer fuels and the potential mixer fuels over the next 20 years. Improved technology and design mean that the new generation of diesel engines is significantly cleaner and quieter than the stock being replaced. Diesel traction does not face the huge fixed costs of gantries and electrical power supply.
Nevertheless, the Government recognise that there are environmental issues to be addressed in the same way as for other modes of transport. How we move to a low carbon economy in the long term will involve serious decisions on our transport system. Later this year we will issue a consultation paper, Powering Future Vehicles. This will focus on advanced battery technologies, hybrid vehicles and fuel cells. It will be mainly concerned with road transport, but these technologies will have a broader applicability across the transport sector in terms of rail and beyond. The Chancellor's statement yesterday on the green fuels challenge will provide the context for encouraging pilot projects to develop future fuels.
In this context, the environmental balance between electric traction and diesel traction is not self-evidently in favour of electricity in all circumstances. It is not the case, as my noble friend Lord Faulkner suggested, that we should always opt for electricity wherever we can. That does not mean that we are adopting a short-termism approach. The creation of the SRA, longer franchises and the 10-year plan for transport are designed to avoid short-term decisions. However, electrification proposals would need to be assessed in a way which reflected the long-term life of the assets and would need to take into account long-term environmental sustainability issues. The framework is
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there for the SRA to take such decisions, but it has to take a view on electrification proposals in the same way as on anything else.
Lord Bradshaw: My Lords, does the Minister accept that issues such as residual value have to be taken into account? That would require the Government giving consent, as they have to, for the SRA to allow residual values to be taken into account in letting franchises. As demonstrated in Switzerland, the benefit of electric assets lasts for about 60 years. That is much, much longer than diesel.
Lord Whitty: My Lords, without necessarily accepting those figures, clearly, as I said earlier, we should consider whole life value, whole life carbon content and whole life sustainability in the approach we adopt. I accept that.
My noble friend Lord Faulkner also referred to particular places—Penzance, North Wales and so on—which would have benefited from BR's electrification plans had they gone forward in the 1980s and beyond. I accept some of that, but we must not overlook the improvements which are shortly to be delivered, for example, on Virgin's cross-country routes, where new diesel trains will improve journey times substantially.
Of course there is concern about the reliability of some new trains, both diesel and electric. The disruption which can be caused in a particular place—whether by a tragic accident or anything else—is a real problem. However, electrifying lines does not increase the flexibility for dealing with such disruptions because electric stock can be used only on electrified lines. There is a difficulty caused by having a half and half situation, which is bound to prevail for at least a substantial period ahead even were we to adopt the noble Lord's preference for electrification over the longer term.
The noble Baroness, Lady Scott, referred to access to Felixstowe. We are committed to improving access to Felixstowe. The noble Lord, Lord Shutt, referred to electrification more generally by stealth. It is quite difficult to do anything by stealth in the railway industry. He referred to the lines from Manchester to Liverpool and from Leeds to York. My noble friend Lady Farrington was particularly interested in the Preston to Blackpool line, for which she expressed some enthusiasm. I agree that access to Blackpool should definitely be improved. Whether electrification in those circumstances is appropriate would need to be considered on a case-by-case basis. It is important that some of those lines are upgraded, both for their own traffic and as alternatives to other main line routes.
The noble Earl, Lord Mar and Kellie, referred to the situation in Scotland, in particular to the routes between Edinburgh and Aberdeen and the Edinburgh to Glasgow line.
The Government—and this is also reflected in Scotland—believe that passengers are more concerned about punctual, reliable, clean and comfortable trains than about the form of traction that is actually pulling

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them. That is illustrated by the recent introduction of turbo-style trains between Glasgow and Edinburgh, which has significantly increased demand. In the not too distant future, the replacement for the Scottish passenger franchise will provide an opportunity for delivering further reduced journey times, increased reliability and frequencies, as well as wider journey opportunities. Whether some of those bids include electrification will be a matter that the SRA and the franchise director will have to consider at that point.
Tonight's debate has shown that, although there is some enthusiasm for electrification—electrification, even in my position, will undoubtedly represent value for money in particular cases—the case for large-scale, general electrification is not self-evidently clear. I accept that the noble Lord, Lord Bradshaw, is right in that had we gone forward with electrification in 1980, we would he reaping the benefits now. However, as my noble friend Lord Berkeley said, "We are where we are". I cannot argue with that.
If we take a look ahead from this point, it is not necessarily the case that in all circumstances electrification is a sensible measure. In many cases, in any assessment regarding the environment and costs, diesel traction with the improved environmental effects of diesel trains and improved fuel efficiency will continue to be better. We need to consider these cases on their merits. I welcome the interest shown by noble Lords in this debate, which will undoubtedly be conveyed one way or another to the SRA for its consideration.
Earl Attlee: My Lords, using that well-developed art called "hindsight", can the noble Lord say whether the previous government were, therefore, correct not to spend all the money required to electrify the western region?
Lord Whitty: No, my Lords. As I said, had we gone forward with electrification in 1980, as advocated by the noble Lord, Lord Bradshaw, we would undoubtedly be reaping the benefits now. The stock and the infrastructure would be in place, and further forward investment in electrification would, therefore, be achieved at relatively marginal cost. At that point, the environmental benefit of electricity was dramatically better than the environmental impact of diesel. The situation is much more marginal now. The decisions to be taken now are different in cost terms, because the relativity has improved in favour of diesel by about 25 per cent over those 20 years. If we had that infrastructure in place, we would not have to engage in a substantial infrastructure investment to produce an electric railway, and we would clearly be benefiting from it now.
Therefore, the Strategic Rail Authority has to take a view on what is the most beneficial form of investment as from now, given the infrastructure and the rolling stock that we inherited. Those decisions are now more finely balanced between diesel and electric. In many cases, the immediate decision will be in favour of diesel. However, we need to look at these matters on a case-by-case basis, especially for short stretches of
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line of the kind to which the noble Lord, Lord Shutt, referred. We also need to consider areas where electric traction can provide a more flexible approach. I give way.
Lord Faulkner of Worcester: My Lords, I am most grateful to my noble friend for giving way. If we are to adopt a piecemeal line-by-line approach, can he explain to us why other European railways have decided that a network approach, and a strategic decision to electrify large parts of their network, is the right way forward? For example, all the main lines in France are now almost entirely electrified, and more electrification is planned. Is it a case of them getting it wrong, while we are getting it right? Alternatively, are they getting it right and we are getting it wrong?
Lord Whitty: My Lords, the SRA still has to make some very key decisions that will become more evident within the next few months, as it produces its strategic plan. It is not self-evidently clear that, starting from now, electrification of itself is a positive benefit. Over 50 per cent of France's railways and the whole of its high-speed lines are already electrified. Therefore, that system could be improved at relatively small marginal cost. However, we are not in the same situation.

International Criminal Court Bill [H.L.]
9.25 p.m.
Consideration of amendments on Report resumed.
Clause 3 [Request for provisional arrest]:
[Amendments Nos. 7 and 8 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 9:
Page 2, leave out line 40 and insert ("on the application by the procurator fiscal, which shall state—").
The noble Baroness said: My Lords, in moving Amendment No. 9, I wish o speak also to Amendment No. 10. In Committee the Government were happy to accept Amendment No. 12 which was moved by the noble Lord, Lord Howell of Guildford. We did so because we believed, as dirt the noble Lord, that it was right that equivalent procedures for applying for a provisional arrest warrant should operate in Scotland and in England and Wales. We are grateful to the noble Lord and the Law Society of Scotland for noticing the original discrepancy.
On further reflection, however, we have, with regret, concluded that fully to meet that objective a further improvement of the wording of Clause 3(3) is required. As subsection (3) now stands, the role given to the procurator fiscal is not consistent with Scottish procedure and could give rise to practical difficulties. Nor is it consistent with the procedure in place for England and Wales under subsection (2).
Amendments Nos. 9 and 10 therefore would bring subsection (3) more closely in line with subsection (2). The procurator fiscal would state before the court, when applying for a provisional warrant, that the

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request has been made on grounds of urgency by the ICC for the arrest of a person, and that the person is in, or on his way, to Scotland. He would thus carry a similar procedural function to that performed by the constable before a court in England and Wales.
I do not believe that there is any difference in aim between the amendment made in Committee and the new wording the Government suggest. I therefore trust that it will receive the support of the House. I beg to move.
Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness for these amendments with which obviously we agree and for accepting the amendment that I moved earlier. I suppose I could argue that if they had been accepted earlier that might have saved trouble. However, we are now where we want to be. Therefore, I record my gratitude that these amendments and changes have been made.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 10:
Page 2, line 44, leave out from beginning to second ("officer") in line 45 and insert ("an appropriate judicial").
On Question, amendment agreed to.
Clause 5 [Proceedings for delivery order]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 11:
Page 4, leave out line 14 and insert—
("(5A) Whether or not it makes a delivery order, the competent court may of its own motion, and shall on the application of the person arrested, determine—

(a) whether the person was lawfully arrested in pursuance of the warrant, and

(b) whether his rights have been respected.

(5B) In making a determination under subsection (5A) the court shall apply the principles which would be applied on an application for judicial review.
(6) If the court determines—").
The noble Baroness said: My Lords, in moving Amendment No. 11, I wish to speak also to Amendments Nos. 12, 13 and 17.
In Committee the Government agreed to reconsider the procedure set out in the Bill for determining whether a person's rights had been respected. The noble Lord, Lord Lester, argued that as the Bill stood it would not be open for the court to determine that a person's rights had been respected. He argued cogently that on an application for habeas corpus the court could only determine the legality of a person's detention, and he did not believe that there was sufficient provision for a determination with regard to the person's rights. The noble Lord, Lord Avebury, also asked how allegations that a person's rights had not been respected might be brought before the court.
The Government have listened. Although there is already provision for this in Clause 5(6) and Clause 12(4)(b), we agree that the matter could be made clearer. We have accordingly tabled Amendments Nos. 11, 12 and 13 which I trust will sufficiently answer
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the noble Lords' concerns while at the same time maintaining a swift and effective delivery process unencumbered by allowing both full judicial review and habeas corpus applications.
Amendment No. 11 clarifies the procedure by which the courts are to make a determination of whether the person's rights have been respected. In making its determination the court is to apply the principles applied by the court upon an application for judicial review. If a determination is made that a person's rights have not been respected, or the person has not been lawfully arrested, it will notify the Secretary of State who will then notify the ICC.
Amendment No. 12 provides that the determination is to be made by way of a declaration in England and Wales or by a declarator in Scotland, and makes it clear that the competent court may not grant any other relief. Amendment No. 13 is a consequential amendment.
Amendment No. 17 is also a consequential amendment. It makes a minor amendment to Clause 12(4) so that in the event of an application for habeas corpus the higher court can make a declaration using the same procedure as the competent court, whether or not it decides to set aside the delivery order.
I hope that these amendments meet the concerns expressed in Committee. I beg to move.
Lord Lester of Herne Hill: My Lords, the amendments meet all our concerns. They are well constructed. They are carefully tailored. They will ensure a proper dovetailing between the remedies that can be provided by the national court and what needs to be done with the International Criminal Court. We are gratified as well as grateful.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 12 and 13:
Page 4, line 17, at end insert—
("it shall make a declaration or declarator to that effect, but may not grant any other relief.
(6A)").
Page 4, line 19, leave out ("that fact") and insert ("any declaration or declarator under subsection (6)").
On Question, amendments agreed to.
Clause 7 [Consent to surrender]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 14:
Page 5, line 27, after ("bail") insert ("in England and Wales").
The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 18, 23 and 24. We are grateful to the Law Society of Scotland for highlighting the issues.
As noble Lords will be aware, bail arrangements in Scotland differ in significant ways from practice in England and Wales. In particular there is no mechanism in Scottish practice or procedure for remand into the custody of a constable and no mechanism for the police to deal with a prisoner so remanded. Further, bail with a condition to surrender

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to a police station is not normal for a bail order in Scotland which in essence requires the accused to reappear in court.
For this reason, and after careful consideration, we have concluded that the provisions in Clause 7(5)(b) and Clause 13(5)(b) which provide for notification to be given to the officer in charge of the police station at which a person is required to surrender to custody should apply to England and Wales only. That is the purpose of Amendments Nos. 14 and 18.
The Scottish Executive has considered whether any alternative provision is required for Scotland but it has concluded, in view of the different bail arrangements operating there, that no such notification requirement is necessary. In view of the different bail arrangements pertaining to Scotland, we also consider that Clause 17, which essentially deals with various cases where a person on bail may be committed to the custody of a constable, should not apply to Scotland.
Amendment No. 23 would limit, therefore, the whole of Clause 17 to England and Wales. Amendment No. 24 is a consequential amendment only. These are technical amendments which, along with other changes proposed to Clause 16, are designed to bring the arrangements for bail fully into line with current practice in Scotland. I beg to move.
On Question, amendment agreed to.
Clause 11 [Procedure where court makes order]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 15:
Page 7, line 21, leave out ("in ordinary language").
The noble Baroness said: My Lords, in moving the amendment, I shall speak also to Amendment No. 16.
During Committee stage, the Government agreed to reconsider the provisions of Clause 11(1)(b) with respect to the language in which the court shall inform a person of his rights to seek a review of a delivery order. In Committee, amendments were tabled by the noble Lords, Lord Lester and Lord Avebury, the noble Lords, Lord Howell and Lord Kingsland, and the noble Earl, Lord Attlee. The purpose of each of those amendments was to ensure that a non-English speaker would be informed of his rights in his own language. The noble Lord, Lord Lester, also stressed the importance of reflecting the rights provided to an accused in the ICC Statute.
Although the amendments tabled would have fulfilled that intention, we were concerned that they failed to make provision for the original intention of this aspect of Clause 11: that a person is spoken to in non-technical language that they can comprehend. We agreed to look again at the issue to see whether wording could be found that answered both objectives.
Amendment No. 16 ensures that a person is spoken to in non-technical terms in a language that they speak and understand. The amendment draws and expands
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on the wording of the statute to ensure that each of those distinct considerations is covered. The phrase,
"which appears to the court",
is included to avoid lengthy legal arguments over whether it can be proven that a person fully understands the language. I hope that we can also thereby meet the concern expressed by the noble Lord, Lord Clinton-Davis, in Committee about including the word "fully" in the Bill. I hope that the amendments correctly reflect the will of the Committee. I beg to move.
Lord Lester of Herne Hill: My Lords, at this hour the best thing to say is probably, "Snap", but that is not parliamentary language, so instead I shall say that we are grateful for the amendments, which meet our concerns. We are glad that we have been able on this occasion to join forces with the Conservative Front Bench and Back Benches and all sides of the House.
Lord Howell of Guildford: My Lords, it is now my turn to say—or not to say—"Snap". I agree with what the noble Lord, Lord Lester, has said. We are grateful that the amendments have been tabled.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 16:
Page 7, line 22, after ("order)") insert (", in ordinary terms and in a language which appears to the court to be one which he fully understands and speaks").
On Question, amendment agreed to.
Clause 12 [Right to review of delivery order]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 17:
Page 8, line 7, at end insert ("(but with the substitution in section 5(5A) for "makes a delivery order" of "sets aside the delivery order")").
On Question, amendment agreed to.
Clause 13 [Waiver of right to review]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 18:
Page 8, line 33, after ("bail") insert ("in England and Wales").
On Question, amendment agreed to.
Clause 16 [Bail and custody: general]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 19:
Page 9, line 39, at beginning insert ("if an application for bail is made to the court,").
The noble Baroness said: My Lords, the aim of the amendment is to align Clauses 16 and 18 and more closely to follow Article 59 of the statute. Clause 18 implements our obligations under Article 59.4 of the statute by requiring a court, when considering an application for bail under Part II, to consult the ICC and to consider the matters set out in subsection (3). To ensure that Clause 18 applies in all cases, Amendment No. 19 amends Clause 16(1) so that the court in England and Wales will consider bail only if an application is made.
Amendment No. 21 achieves the same purpose for Scotland, but, together with Amendment No. 20 and others, it also brings the bail provisions in the Bill more closely into line with current practice and procedure in Scotland. As we have already explained, bail provisions are different in the separate jurisdictions. In Committee, the noble Lord, Lord Howell of Guildford, helpfully raised the concerns of the Law Society of Scotland that Clause 16 did not fully reflect those differences. On further consideration, we agree. Amendments Nos. 20 and 21 have been designed to apply in Scotland the usual rules for bail. We are grateful to noble Lords for highlighting that issue.
All three amendments are technical. They ensure that the bail provisions of the Bill are workable and practicable. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 20 and 21:
Page 9, line 44, leave out subsection (3).
Page 10, line 6, at end insert—
("() Where under this Part a court in Scotland has power to remand a person and the person makes an application to the court for bail, the court may admit him to bail and shall have the like powers in doing so as it has in proceedings in respect of an offence alleged to have been committed by him.").
On Question, amendments agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 22:
Page 10, line 9, at end insert (", or who is in custody awaiting trial or sentence by a national court").
The noble Baroness said: My Lords, in Committee the noble Lord, Lord Kingsland, helpfully tabled an amendment to Clause 16(5). Subsection (5) of that clause provides that a court will not grant bail to someone who is already in detention or imprisonment, serving a sentence imposed by a national court. The noble Lord suggested that that should be amended also to cover persons in custody, pending trial before a national court.
In Committee we agreed that that was an important point and that we would return with an amendment which would meet the noble Lord's purpose. We believe that Amendment No. 22 does so. It provides that no one who is in custody awaiting either trial or, indeed, sentence by a national court will be granted bail under Part II of the Bill. We consider the amendment to be a sensible improvement to the Bill. I beg to move.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness.
On Question, amendment agreed to.
Clause 17 [Bail and custody: supplementary]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 23 and 24:
Page 10, line 1, at end insert ("in England and Wales").
Page 10, line 12, leave out ("in England and Wales").
On Question, amendments agreed to.
Clause 23 [Provisions as to state or diplomatic immunity]:
The Deputy Speaker (Lord Ampthill): My Lords, I must warn the House that if Amendment No. 25 is agreed to, I cannot call Amendment No. 26.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 25:
Page 13, line 21, leave out subsection (4).
The noble Lord said: My Lords, in moving Amendment No. 25, I shall speak also to Amendment No. 27. As it stands, Clause 23 gives the Minister discretion to refuse delivery in certain cases and adopts a very cautious approach. The clause already leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by the ICC. Clause 23(4), which we would omit, effectively leaves the Secretary of State to decide to whom immunity should attach in relation to non-state and state parties alike. We suggest that that leaves the Secretary of State open to great political pressure and could prevent the United Kingdom from co-operating effectively with the ICC.
This matter was debated fairly extensively in Committee, when the Attorney-General sought to make a distinction between discretion in relation to state parties under subsection (1) and non-state parties under subsection (2). The justification for that distinction is hard to see, and I cannot improve upon what was said on the matter by my noble friend Lord Avebury. I shall not hold up the debate by quoting what he said on that occasion.
Our amendment is based on Sections 66 and 120 of the New Zealand statute. Those provide that, where the Minister is concerned that there will be a clash with the international obligations of New Zealand, including in relation to immunities, he can consult the ICC to ask whether or not it will proceed with the request.
Such a consultation procedure would remove the veto but would allow the Secretary of State to raise his concerns in relation either to state or non-state parties and to ask whether the ICC considers that an effective waiver has been issued and whether it properly applies to the individual concerned. Such a situation would arise, for example, where a dispute existed as to the effective government of a state and where an individual argued that the party which issued the waiver and accepted the jurisdiction of the court did not have the effective authority to do so. It is highly unlikely that the ICC would ask us to set aside our international obligations as regards state or diplomatic immunities except where the state concerned had accepted its ability to do so. That is the purpose of Article 98 of the statute.
We should have confidence that the ICC, once convened, would obviously respect its own statute. The ICC might make a decision with which we did not agree. In those circumstances, as in other places in the Bill, we should abide by the statute and give the ICC the necessary priority. I beg to move.
9.45 p.m.
Baroness Scotland of Asthal: My Lords, in responding to the noble Lord, I shall speak to Amendments Nos. 25, 26 and 27. I understand that the noble Lord, Lord Lester, is in essence seeking two things: first, that the Secretary of State should consult with the ICC when issues of state or diplomatic immunity arise and, ultimately, to give the final say on whether the arrest and surrender of an individiual goes ahead to the ICC.
I am afraid that I must oppose the amendment. The Government fully accept that the ICC should be consulted when there are issues of state or diplomatic immunity involved in an ICC request. That is why the clause, as drafted, provides for consultation with the ICC' and with the sending state of the person concerned. The opinions of both will be very carefully taken into account in any decision taken by the Secretary of State.
I differ from the noble Lord on the second point. We do not consider that, in the very special circumstances which would exist if a case arose under this clause, the provision which we have made in subsection (4) is necessary. We do not envisage that this is a circumstance which will arise often. The situation we are providing for will be rare. Precise details are difficult to predict. Subsection (4) was included for that reason. We consider that it should remain for that reason. I have listened with great care to the opinions and views expressed in the House about the breadth of the provision in the subsection. The Government are bringing forward Amendment No. 26 to address that concern. In the light of that, I hope that Amendment No. 25 will not be pressed.
As regards Amendment No. 26, again the Government listened very carefully to the debate on this issue in Committee. The question of state and diplomatic immunity is an important one and the Government have reconsidered Clause 23 to see whether there is any way of meeting the concerns expressed when we last considered it. The amendment that we propose would limit the category of persons to whom the subsection would apply. It is intended as a response to the concerns expressed about the breadth of the powers given to Ministers under the subsection. The amendment clarifies the extent of subsection (4) so that there will be no scope for wilful misinterpretation as to the categories concerned. We do not seek that subsection (4) applies to everyone including persons who may enjoy certain minor immunities or privileges. The subsection applies in very limited circumstances and to very limited cases; namely, those where, but for this clause, the individual would enjoy immunity from arrest and surrender to the ICC. That may include, for example, a serving ambassador in London or a visiting head of state. The position of this group of people under international law is distinct and we wish to reflect that in the subsection.
What is important is that this amendment will limit the possibility of other persons claiming immunity and thereby seeking to frustrate their surrender to the ICC. I hope that this amendment goes some way to address
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the concerns expressed by your Lordships in Committee. In the light of this, I hope that your Lordships will be able to accept the Government's amendment.
Perhaps I may touch on Clause 23 which relates to the specific category of individuals who enjoy particular legal status. The clause has been drafted very carefully and with full regard to that status and to our other obligations in international law to protect status. I hope that your Lordships will feel able to accept the government amendments and that the noble Lord will not press the other two amendments.
Lord Archer of Sandwell: My Lords, since my noble friend moved Amendment No. 26, I assume that we are entitled to debate it.
The Deputy Speaker: My Lords, the Minister spoke to it.
Lord Archer of Sandwell: My Lords, I stand corrected. I have often corrected other noble Lords on that point. My noble friend spoke to Amendment No. 26 but is proposing to move it and we are, I understand, entitled to debate it now. I believe I have got that formula right.
I intervene only to say that all of my sympathies are with the comments of the noble Lord, Lord Lester, but I know how hard my noble friend fought to gain this half loaf. Speaking for myself, I should seize the half loaf and give thanks.
Lord Kingsland: My Lords, I am delighted to say at least once today that I wholly share the view expressed by the noble and learned Lord, Lord Archer of Sandwell. I have every sympathy with the motives that lie behind the amendments that were moved by the noble Lord, Lord Lester, but on balance the noble Baroness has on this occasion got it absolutely right.
Lord Carter: My Lords, I am completely out of order—after the Minister has spoken, only the noble Lord who moved the amendment should speak.
Lord Archer of Sandwell: My Lords, that is why I asked my question.
Lord Lester of Herne Hill: My Lords, it is clear from the statements that noble Lords have made, although they are out of order, that we are in a conciliatory and "ungreedy" state, in that we are settling for half loaves rather than no bread.
I shall obviously reflect carefully on the noble Baroness's comments. The Government are clearly open minded; they have not closed their mind at all in this context. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 26:
Page 13, line 23, leave out from ("Part") to end of line 24 and insert ("which, but for subsection (1) or (2), would be prevented by state or diplomatic immunity attaching to a person shall not be taken against that person").
On Question, amendment agreed to.
[Amendment No. 27 not moved.]
Clause 39 [Production or disclosure prejudicial to national security]:
Lord Lester of Herne Lord Lester of Herne Hill moved Amendment No. 28:
Page 19, line 13, at end insert—
("() The decision to refuse to disclose a document or a piece of information to the ICC, or the decision to issue a certificate under this section, shall not be made unless the Secretary of State has consulted the ICC, as outlined in Article 72.").
The noble Lord said: My Lords, as the Bill stands, Clause 28 will allow the Minister to issue a conclusive certificate to the effect that documents or information could not be disclosed if they were prejudicial to the security of the United Kingdom.
The ICC statute states in Article 93, paragraph 4, that in accordance with Article 72, a state party may deny a request for assistance in whole or in part only if the request concerns the production of any documents or disclosure of evidence relating to national security. Article 72 sets out the procedure to be followed when a state refuses to produce evidence on the grounds of national security. It provides that when a state takes such an action, it should act in conjunction with the prosecutor, the defence or the trial chamber to seek to resolve the matter. Steps to avoid a clash with national security should be taken. For example, requests could be modified or the information could be provided in another form.
Article 72, paragraph 7, accepts that there may be some circumstances in which the evidence withheld might be relevant and necessary for the establishment of the guilt or innocence of the accused. It also provides that in cases involving an ICC request for assistance, the court can enter into further consultations with the state and the court may refer the state to, among others, the Security Council as being in breach of its obligations under the statute. The court may also make such inferences of fact as may be appropriate in the circumstances.
In Committee, Conservative Front Bench spokesmen tabled some probing amendments to the national security provisions and the Attorney-General accepted, as I understood it, that any decision to refuse disclosure on national security grounds would have to be made according to the procedure that is laid out in Article 72. However, the noble and learned Lord felt that the Bill would be read together with the statute without the need for a specific reference.
In replying to the suggestion that a reference was necessary, the noble and learned Lord the Attorney-General noted that he did not believe one was
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necessary, otherwise on every occasion, one would have references. But, as the noble Lord, Lord Kingsland, noted in his reply,
"this is not any old matter in the Bill; this is one of the most crucial clauses in the Bill".—[Official Report. 12/2/01; col. 65.]
In other clauses, references have already been written in; for example, Clause 65 on command responsibility refers to the statute, Article 26, and Clause 66 on the meaning of intent refers to Article 30. The purpose of this amendment is simply to put the position beyond doubt. I beg to move.
Baroness Scotland of Asthal: My Lords, the Government made clear in Committee that we consider that the provisions of the Rome Statute in Article 72 will come into play should the ICC request the release of information which the Government consider should not be released on national security grounds. That is also made clear in paragraph 69 of the Explanatory Notes which sets out the procedure in the statute and states explicitly that that clause must be read in light of the rights and obligations of a state party under the ICC statute. I am very happy to restate that now.
We take very seriously indeed the issues raised by the noble Lord, Lord Lester. Were the situation to arise in which we considered that the release of the material sought by the ICC would prejudice national security, we should seek to resolve that matter by consultation with the ICC, in accordance with our obligations in Article 72.
I understand that the noble Lord, Lord Lester, seeks to make an explicit reference to the provisions of Article 72 on the face of the Bill. We have considered that question since it was raised in Committee. We concluded that such a reference would not be appropriate. From a drafting point of view, it would open the question of why we were not making innumerable other references to articles in the statute on the face of the Bill. We do not think that such references are necessary or desirable. We have therefore sought to keep them at a bare minimum.
The House is aware that, in ratifying the Rome Statute, we should be bound by the provisions in it, and that applies no less in this case.
Although Article 72 is not referred to on the face of the Bill, it is referred to in the Explanatory Notes and we have placed it on record during our debates in Committee and again today that we shall consider whether reference can again be made in any post-legislative explanatory memorandum.
Lord Avebury: My Lords, before the Minister sits down, will she explain why it is necessary to refer to consultations with the ICC in Clause 23(4) and not in this place in the Bill?
Baroness Scotland of Asthal: My Lords, we have looked very carefully to see whether greater clarification in relation to each part is necessary. We

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agreed to that inclusion in the clause to which the noble Lord referred. The noble Lord will know that Article 72 is extensive and we should wish for scrutiny of the whole article to be undertaken when that issue is to be considered.
We have thought about it carefully. I assure the noble Lord that had we felt on balance that the clarity would be better served by including it, we should have come to that conclusion. On this occasion, we decided that that is not necessary. But that in no way undermines the importance of the article, and we have made that absolutely clear both today, I hope, and in Committee. As I said to the noble Lord, we shall make it clear again in any explanatory memorandum which is issued once this Bill becomes a statute and passes into law. I hope that that will satisfy the noble Lord, Lord Lester, and he will feel sufficient comfort to be able not to press the amendment.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, when she refers to "any explanatory memorandum", is that the admirable new procedure whereby what we used to call Notes on Clauses are then updated on the completion of the Bill through all its stages and they then form some extrinsic evidence of what is intended? Does she have that new procedure in mind?
10 p.m.
Baroness Scotland of Asthal: My Lords, it would be similar in as much as once this Bill becomes law it is contemplated at the moment that we would issue with it certain guidance notes that would assist those who go through the Act to understand better the way in which it is intended to work. The noble Lord will know—I believe that we saw an example of it in Committee—that sometimes there are those who find it rather challenging to track the provisions of the statute through with the Bill. It is thought that if there are such explanatory notes issued after the Bill becomes law, that may assist with that process.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. As the guilty party who won the case of Pepper v. Hart, in many ways I have always regretted that victory because I find it unsatisfactory that one has to use debates of this kind in order to make clear what ought to be clear on the face of the Bill. If this intention is to be reflected in the way that the Minister has indicated in this extremely good new procedure, which I believe is better than Pepper v. Hart statements, whereby the notes on clauses become part of the record once the Bill becomes law—even though I would have preferred to see it on the face of the Bill—I believe that that would be a strong indication for the future interpretation of what will be the Act. Therefore, I accept that gratefully and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 29:
Page 61, line 44, at end insert—
("() Notwithstanding anything in the preceding paragraphs, a person convicted by the ICC and serving his sentence in the United Kingdom shall serve a sentence which is no longer than the maximum for that offence in the United Kingdom.").
The noble Lord said: My Lords, this amendment concerns the length of sentence passed by the International Criminal Court. It suggests that on conviction a UK national should serve a sentence no longer than the maximum for that offence in the United Kingdom. As was said in Committee, that appears to be incompatible with the statutes, but it is not incompatible with putting down declarations at the time of ratification of the treaty because that has been done by another country, so that is not impossible. Indeed, it is possible. The country concerned is the Kingdom of Spain, which made a declaration on the ratification status document, having already ratified the treaty that,
"Spain declares its willingness to accept at the appropriate time, persons sentenced by the International Criminal Court, provided that the duration of the sentence does not exceed the maximum stipulated for any crime under Spanish law".
The noble Baroness, Lady Scotland, was kind enough to write to me about this apparent quirk and the apparent freedom of the Kingdom of Spain to take a different view from that which appeared to be stipulated in the statute. She said that it reflected domestic and constitutional issues in Spain. I should certainly like to hear why our own concerns cannot also be reflected in a declaration of this kind and why a great many constitutional and domestic issues that other countries appear to be able to reflect in their declarations cannot be reflected. To put the matter another way, could we have an indication of what declarations will be met? We have heard about the explanatory memorandum that will be produced at the end of the passage of the Bill to enable easier translation or association with the statute.
I believe that in dealing with this matter your Lordships' House deserves an indication of what kind of declarations and interpretative comments the Government intend to put down because they will make a great difference. In earlier debates we have heard how the French have taken strong viewpoints that the Government apparently do not want to emulate, to my personal regret, and I believe to the regret of many people outside.
Here is a not unimportant but a less central matter and if there were to be a declaration we would not need to press the amendment. But not knowing about the declarations and not knowing how the law will be handled leaves us in a difficult position. I would be grateful for clarification on the specific matter of the length of sentence and on the broader matter of declarations, if any, that will be put down in the future. I beg to move.
Baroness Scotland of Asthal: My Lords, I regret that the Government cannot agree to this amendment. As we said in Committee, the Rome Statute provides that

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when a state agrees to take ICC prisoners, an ICC sentence of imprisonment shall be binding on states parties, who shall in no case modify it.
What the ICC statute also makes clear is that the responsibility for deciding on, reviewing and, if appropriate, modifying a sentence of the ICC judges is that of the ICC alone. It would be odd for the statute to say anything else. If all states which were enforcing the sentences of the ICC decided that they wished to reduce ICC sentences, release ICC prisoners early or the like, they would undermine the decisions of the ICC on sentencing and could render the original sentencing decision of the ICC judges meaningless. It would be open to states, in the worst case example, to release prisoners as a result of political pressure from other states.
I understand that the noble Lord, Lord Howell, is basing this amendment on the declaration on ratification made by the Spanish government. Their position is a most particular one. The declaration is, however, worded somewhat differently:
"Spain declares its willingness to accept at the appropriate time, persons sentenced by the International Criminal Court, provided that the duration of the sentence does not exceed the maximum stipulated for any crime under Spanish law".
The emphasis was added on the word "any".
That declaration arose because of particular constitutional problems in Spain on the question of life sentences. In this country, we do not have any such prohibition on sentences of life—indeed, we are providing for them in Part V of the Bill—and I see no difficulty therefore in our enforcing life sentences if passed by the ICC. Indeed, if we were merely to duplicate the Spanish declaration it would have absolutely no effect because there is no sentence which the ICC can pass down which exceeds the maximum stipulated for any crime under UK law.
Naturally, I understand the constitutional constraints placed on Spain, but I do not think it is a model which we or other states should now follow where those constraints do not apply. The Government believe that it is right that states parties should assist the ICC in every way possible and this includes holding prisoners for the length of time that the ICC decides. There will be no great divergence between the ICC sentences and the domestic equivalents and we are prepared to accept the ICC sentence without conditions.
In the light of the very different circumstances which apply in the UK as opposed to in Spain, I hope that the noble Lord, Lord Howell, will not seek to press the amendment.
Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness for that explanation, which is helpful and elucidating. It means—and I believe that it is the Government's policy—that we shall be holding a number of prisoners here; people convicted by the court who committed monstrous crimes. It will place a heavy duty on us but one I recognise that the Government wish us to perform. Indeed, I share that view.
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In the light of the Minister's explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 [Genocide, crimes against humanity and war crimes]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 30:
Page 25, line 32, leave out ("or") and insert (", a United Kingdom resident or a").
The noble Baroness said: My Lords, in moving Amendment No. 30, I shall speak also to Amendments Nos. 34, 36, 37, 41, 43, 46, 48 and 49. These are, I hope, non-contentious. They give the United Kingdom jurisdiction over ICC crimes committed by UK residents. As the Bill is currently drafted, domestic courts have jurisdiction over ICC crimes committed in England and Wales or Northern Ireland and those committed overseas by United Kingdom nationals and those subject to UK service jurisdiction.
I appreciate that this issue has been the subject of considerable concern on the part of your Lordships. It is not a simple issue and it is one which the Government have considered at great length. We propose that the extra-territorial jurisdiction of our domestic courts be extended to UK residents for a number of reasons. First and foremost, it is our desire to ensure that the UK does not become a place of refuge for those accused of these vile crimes. Secondly, we wish these provisions to act as a deterrent.
The measures that we are taking to prosecute residents of whatever nationality for ICC crimes, even when committed before they came here, are a powerful weapon. We would use it to ensure that all those resident in this country, whatever their nationality, should think very hard before engaging in activities, say, as a mercenary abroad if that involved a risk of being complicit in ICC offences. It would also send a clear message to war criminals abroad that the UK is not a place where they can plan a peaceful retirement.
Thirdly, this amendment complements the provisions already in the Bill. We shall have a clear strategy to deal with war criminals found in the UK. First, the ICC can request their arrest and surrender. Secondly, if they are resident here we can bring prosecutions in United Kingdom courts. Thirdly, if a state with jurisdiction sought their extradition we would consider it in the normal way, even where the state concerned took wider jurisdiction than the UK. Where someone is a UK resident or was one at the time of the offence, we have come to the conclusion that it will often be more appropriate for our courts and prison system to deal with him or her than to arrange for another country to take over the case.
However, we remain of the view that where the person has no ties with this country, surrender to the ICC or extradition to another state is the proper and most practical course. That approach is based on a realistic appraisal of what our criminal justice system, with its strong dependency on the principle of territoriality, is organised to deliver. It is also in line with the long-standing policy of this country not to take universal jurisdiction except as required by an

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international agreement. We do not believe that the UK should unilaterally take on the role of global prosecutor. Where a crime is committed with no clear nexus to the UK, it must be for the countries concerned to prosecute and for the ICC to step in if they fail to do so. That is precisely the reason that we are establishing the International Criminal Court.
I appreciate that this change may not wholly satisfy those who ask that the UK take universal jurisdiction, but our aim is the same: to ensure that the perpetrators of these heinous crimes are brought to justice. The Government believe that the amendments that they have tabled enable the UK to play a valuable and effective role in support of the ICC and the rule of international criminal law. We believe that these amendments, together with the existing provisions of the Bill, provide a robust regime which will prevent the UK being, or being seen as, a safe haven for war criminals. I hope, therefore, that your Lordships will support them. I beg to move.
10.15 p.m.
Lord Lester of Herne Hill: My Lords, in speaking to Amendment No. 30 and the other amendments grouped with it, perhaps I may speak also to Amendments Nos. 31 to 33, 35, 38 to 40, 42 and 47 which are in the names of myself and my noble friend Lord Goodhart. We welcome the Government's recognition that the initial draft of the Bill was too narrow as far as concerns UK jurisdiction. NGOs, the Bar Council, the Law Society and noble Lords from all sides of the House have expressed strong concern that the Bill is too narrow in limiting the application of domestic offences to crimes committed in the UK or abroad by UK nationals or those subject to UK service jurisdiction.
The proposed UK residence test goes some way to addressing the problems highlighted, especially in Committee. As the Minister correctly anticipated, we do not consider that the compromise is entirely satisfactory. I shall leave my noble friend Lord Goodhart to explain the legal problems of uncertainty about the residence test.
Perhaps I may add one or two comments. In Committee, the Minister indicated that the intention to adopt the residence test was to match the definition used in the War Crimes Act 1991 and to afford flexibility. The War Crimes Act was adopted in a very different situation. In the War Crimes Act the basis for jurisdiction is residence. That is beside the point for two reasons. First, by necessity, the War Crimes Act was retrospective, whereas the ICC Bill, when enacted, will apply to offences committed only after it comes into force. Secondly, the purpose of the War Crimes Act was to prosecute Nazi war criminals who, if they had not attained UK citizenship, had at least made their permanent home here.
However, the Bill and the statute are intended to create a new international legal order for the prosecution of international crimes. The cornerstone of that scheme is the principle of complementarity and
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the presumption that the state retains primary responsibility for the prosecution of ICC crime. The preamble of the statute states that,
"it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crime".
Therefore, we should not be left behind in accepting our responsibility to prosecute those responsible for the most heinous international crimes.
As has been said previously, other states—New Zealand, Canada, Belgium, Germany and South Africa—are adopting a wider universal jurisdiction than residence. The basis of our amendment is the Canadian example. That provides for a jurisdiction where a non-national suspected of crimes committed abroad is "present" in Canada. That would have the great virtue of covering, for example, the war criminal who takes an extended holiday here, or who has medical treatment in this country.
I agree with the Minister that we should not play a unilateral role as a global prosecutor, but that the contact with this country would be the presence in this country of the person concerned. We would not he a global prosecutor any more than Canada, New Zealand, South Africa, Germany or Belgium. Each state will carry its own share of the burden. We find it difficult to understand why we should lag behind other Commonwealth countries, based on common law systems such as the ones I have mentioned, which embrace tests wider than residence.
So far as concerns the problems of legal uncertainty and the definition, perhaps I may leave those matters to my noble friend Lord Goodhart.
Lord Goodhart: My Lords, Amendment No. 46 strikes me as being the most delightfully circular definition that I have ever come across. It states that,
"a 'United Kingdom resident' means a person who is resident in the United Kingdom".
It reminds me of the famous line by Gertrude Stein:
"Rose is a rose is a rose".
One might say, "Resident is a resident is a resident".
I entirely support my noble friend Lord Lester of Herne Hill in believing that the appropriate test is not a residence test at all but is a presence test. However, the amendment assumes that a residence test is being applied and makes an attempt to clarify it to some extent. The problem is that the residence test is both highly flexible and highly uncertain. For instance, there is no single definition of residence for the purposes of the law of England or the law of the United Kingdom. Residence for tax purposes is not the same as the residence that is necessary for founding jurisdiction in divorce cases. For tax purposes, residence depends on fulfilling a number of different possible criteria. One has to look at the length of the stay, the reason for the stay and the availability on a long-term basis of a house or flat—somewhere to live in the United Kingdom.
In fact, the Inland Revenue applies a fairly detailed set of tests. For example, in normal circumstances, spending 90 days or more in this country in four consecutive years is sufficient to establish residence.

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That kind of test makes it possible to be resident at the same time in more than one country; at any rate, if another country applies a test that is similar to that which the United Kingdom applies. But in this case the residence test will be applied for the purpose of founding jurisdiction over criminal offences. In those circumstances, the court is likely to interpret the residence test strictly and in favour of the alleged perpetrator of the crime.
It is therefore at least possible that the court would say that residence for the purposes of the Bill meant something more like ordinary residence for tax purposes. In particular, a court might say that someone could be treated as resident in the United Kingdom only if the United Kingdom was his or her principal place of residence. That would narrow the jurisdiction too much. We believe that the courts of this country should have jurisdiction over someone who, for example, has a house here and regularly spends a few months a year in that house. It is immaterial that the same person might also reside in another country and might indeed spend more time in that country than he or she spends in the United Kingdom.
It would therefore be useful to have Amendment No. 47, which makes it clear that the residence test does not require the United Kingdom to be the sole or principal residence of the alleged perpetrator. Amendment No. 47 would also mean that the definition in the amended Amendment No. 46 would now serve some useful purpose and would not be entirely circular.
Lord Archer of Sandwell: My Lords, at the risk of being repetitive, my position on this group of amendments is very similar to the one that I expressed in an earlier debate. My noble friend's amendment does not represent all that some of us would have wished. If I thought that the amendment moved by the noble Lord, Lord Lester, had any prospect of being accepted, I would have done all I could to pursue it. But I am aware of how hard my noble friend has worked to achieve this degree of progress and it would be churlish not to express my appreciation for that.
As the noble Lord, Lord Lester, remarked, the amendment does represent an improvement. It addresses what threatened to be the scandalous situation which would have arisen had a notorious war criminal or a person charged with crimes against humanity been known brazenly to be living in this country if the authorities had been unable to do anything about it.
However, I take a rather different view of Amendment No. 47, to which the noble Lord, Lord Goodhart, has just spoken. I should have thought that it was not impossible to persuade the Government to reconsider it. Quite clearly, the word "residence" embraces a range of ambiguities. I am clear that the definition we have at the moment is straight out of Alice in Wonderland. I seem to recall, although I cannot remember where I saw it, a definition in a piece of subordinate legislation which defined a smoked
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haddock as a haddock which had been smoked. I shall believe that there is something wrong with the processes of this House if we cannot improve on that. I venture to hope that my noble friend will be in a position to reconsider the amendment.
As for the rest of the amendments, I would have preferred a square meal but, as I said earlier, I shall accept the half loaf.
Lord Avebury: My Lords, perhaps I may ask the noble Baroness a question which I put to her in Committee but to which I do not think I received a reply. Can she cite any other example in the whole of our criminal law where we are obliged to arrest and extradite to another country someone for acts committed which are not offences in our jurisdiction? If this is a departure from the usual practice—namely, that when we arrest someone and extradite him to another jurisdiction, we must ensure that it is an offence under our law—can she give any conceivable justification for this departure from a time-honoured practice?
That is a technical point, but I am concerned more with the practical effects of limiting our jurisdiction to persons who are resident here. As the noble and learned Lord, Lord Archer, pointed out, not only is it scandalous if we allow people to take up residence when we know that they are war criminals; it is equally scandalous if we give them permission to come and shop at Harrods, to obtain medical treatment or simply to enjoy a holiday here, as many of them would do if they knew that they had the immunity given to them under the present drafting, even with the addition of the amendment before us.
When the noble Baroness states that war criminals are on notice that this country is not a place where they can retire in peace, does she honestly think that anyone would contemplate retiring here in the knowledge that, irrespective of whether we would deal with them in our courts, they would be liable to arrest and extradition to the International Criminal Court? Is it not much more necessary for us to deal with the case when someone is only temporarily in our jurisdiction? Furthermore, when the noble Baroness states that these cases are ones where there is no clear nexus to the United Kingdom, what if the offence concerns the murder of British citizens?
At the risk of tedious repetition, perhaps I may call the noble Baroness's attention to a case which I have mentioned before; namely, the case of Colonel Yunus Yosfiah, the commander of the Indonesian troops at Balibo in October 1975, who murdered two British citizens. He has never been brought to justice for those crimes, but, unknown to us, he was a guest of Her Majesty's Government. He came here to attend college as a guest of the Ministry of Defence and spent several months within our jurisdiction. He then peacefully went back to Jakarta. If such an event were to occur in the future—namely, that someone came to this country for a temporary purpose and it was brought to the attention of the authorities that the person had been responsible for the murder of British citizens—

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does not the noble Baroness agree that it would be desirable for us to have in place the powers to arrest that person and bring him before the British courts?
I understand that over the past couple of weeks the Australians have released a great many documents which concern the events which took place at Balibo. Five newsmen, including two British citizens, who worked for an Australian TV channel were cold-bloodedly massacred by the clandestine Indonesian invasion forces. Is the noble Baroness saying that no case of that kind could ever come to our notice in the future, where such a war criminal would swim into our jurisdiction and be here for a temporary period without taking up residence, and that we would not then wish that we had taken the powers that we could have done under the Bill to arrest that man and bring him before our courts?
10.30 p.m.
Lord Goldsmith: My Lords, the first thing to acknowledge is the very important principle that has been accepted by the Government in bringing forward the amendment. At earlier stages of the Bill, a number of noble Lords, including myself, expressed grave concern that someone could come and hide here; that we could have a situation where a war criminal, a despot, a tyrant, was able to make Britain a safe haven. That was our primary concern. I believe that the Government have accepted that principle by the amendment they have brought forward. I very much share the expression of appreciation that my noble and learned friend Lord Archer of Sandwell has given to the Minister.
So the principle is accepted. One then comes to the very important detail of how one identifies who should be subject to the jurisdiction of the court. First, there is the Canadian model—a model which, in Committee, I proposed as a possible solution—based on presence. The problem with presence is that it is not a perfect solution either. Presence can range from the kinds of extended stay to which the noble Lord, Lord Avebury, referred, to mere adventitious presence for a very short space of time.
One has a similar problem when the courts deal with jurisdiction in the context of civil matters. Is it right that the court should take jurisdiction over someone who is here on a very temporary basis as a tourist passing through? I can understand—I do not know whether this lies behind the Government's concerns—that there may be occasions when political pressure may be applied in circumstances where someone is on a very temporary visit. I am not convinced that presence is without its difficulties.
The alternative—
Lord Lester of Herne Hill: My Lords, before the noble Lord, Lord Goldsmith, comes to the alternative, does he agree that one of the great problems about the residence test is that it will be bound to produce impossible anomalies? Let us take the case of mercenaries, drawn from various countries, who commit terrible atrocities in, say, the Congo; some of
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them are then resident here and some of them are present here. Only those who are resident here are able to be prosecuted. Just for good measure, let us assume that one of them is guilty of torture, where one does have jurisdiction irrespective of any residence test. Does the noble Lord agree that that would produce the ridiculous situation where we would be able to prosecute only some parties to a joint enterprise in which all parties are equally guilty of terrible crimes?
Lord Goldsmith: My Lords, it is extraordinarily unfair of the noble Lord to turn against me examples that I put in Committee in arguing against the position then taken by the Government.
The noble Lord, Lord Goodhart, is right: that was the initial reaction that I and other noble Lords had in Committee when my noble friend the Minister referred to the residence test and the uncertainty. It may be that a better word can be found before Third Reading.
This amendment does two things. First, "resident" hits at those people whom we want to ensure are caught by the provision, the scandal which has been referred to. I share my noble and learned friend's view; I should very much like to hear the Government's response to Amendment No. 47, which has been tabled by the noble Lord, Lord Goodhart.
One can even say that there is an advantage in the uncertainty; that is, it would be very hard for any lawyer to advise a tyrant or despot who was thinking of spending some time in this country that he could safely say that he is not resident. I was concerned, as were other noble Lords, that these people should not be able to find peace.
However, it does not fill the complete gap within which there may be cases where the international court cannot intervene. I do not believe that it is right to say that this country should be the alternative International Criminal Court. I hope that it will mean that all noble Lords—I have in mind especially those noble Lords on the Benches opposite—will help to persuade other countries, including the United States, that they should join the circle. That is the best way to fill the accountability gap.
Lord Kingsland: My Lords, in a further attempt to make myself unpopular with members of my own profession in your Lordships' House, I should like to remind noble Lords that the Opposition Front Bench supports the views expressed so eloquently by the noble and learned Lord, Lord Lloyd of Berwick, on Second Reading. We have no objection whatever to the Government's attempt to extend the definition in the original draft of the Bill by adding the residency test. However, I greatly sympathise with the smoked haddock of the noble and learned Lord, Lord Archer of Sandwell. If one looks at the latest edition—I believe that it is the sixth—of Stroud's Judicial Dictionary of Words and Phrases, which is not a publication known for its prolixity, it will be seen that it devotes nearly five pages to the definition of "residence".

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I believe that the Government owe it to your Lordships to be a little more specific about what type of residence they have in mind; otherwise—in circumstances where someone who is not a national but is a resident finds himself, or, indeed, herself, in the firing line—there is likely to be a very long and drawn-out test case about the meaning of "residence". Indeed, as issues of residence are always issues of fact, those long drawn-out arguments might recur each time a new case arises. Therefore, it should help your Lordships enormously if the Government could reach out a little further than they do in Amendment No. 46, which seeks to define "residence" in a circular fashion. Perhaps I may humbly suggest to the noble Baroness that they should try to be a little more specific.
Baroness Scotland of Asthal: My Lords, just by virtue of the debate that we have had so far, one can see how difficult this issue has become. Speaking for myself, I have been most grateful for the contributions that have been made by all noble Lords through the various stages of the Bill, as we have wrestled with what we all recognise to be a very knotty issue indeed.
However, a number of factors are plain. To begin with, we are all in agreement about the mischief that we seek to cure; namely, that those who are responsible for war crimes should find no comfort or succour within this jurisdiction. We are all also clear that we wish them to suffer the most acute anxiety about their well-being when they set foot—if they were to set foot—on British soil.
One comes to the issue as to how best to express that intent. "Residence" has been alighted upon as the most appropriate term to meet the needs of the situation. At the previous stage of the Bill, a number of noble Lords expressed some concern about what the Government meant by "resident" or "residence", and that concern was echoed again this evening. I referred previously to the "flexibility" that this would give us.
What I mean by "residence" being flexible is that it is not a status like nationality, which is all or nothing and can be simply defined on paper. Residence depends on a variety of criteria, and is best decided upon by a competent court in possession of all the facts of a particular case. Residence is a question of fact. A person's actions, such as purchasing a property or beginning a job in this country, would be factors that would point towards that person being resident here.
Of course, it is difficult therefore to legislate precisely for each such occasion. However, the flexibility of the term "resident" is important in itself. If we attempted to place on the face of the Bill all of the factors that we considered indicators of residence, we would almost certainly leave gaps. That would defeat our purpose.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Would this be a case where the admirable Explanatory Notes procedure
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might be used to make it clear to everyone that a flexible and generous interpretation ought to be given to the concept of residence?
Baroness Scotland of Asthal: My Lords, it would certainly constitute an opportunity for us to reflect on the meaning that we feel would be appropriate to residence in the broadest terms, as I seek to do in your Lordships' House this evening. Certainly we could consider how best to deal with that matter.
For example, one of the factors that could go on the face of the Bill would be the length of time that someone had spent in the country. However, it is the Government's view that this could well be a false indicator, as a person's actions may well mark him or her as resident long before any rigid time limit was reached. This could also apply to other issues. I refer to the example I gave earlier concerning someone taking out a lease. He or she could do that quickly before they had been here long. That may be an indicator that the court would be entitled to take into account in determining that the person intended to reside here.
It is certainly the Government's view that we should leave the determination on whether a person is resident to the United Kingdom courts. Your Lordships will note that we have simply used the word "resident". We have not used the terms "ordinarily resident" or "habitually resident". The noble Lord, Lord Goodhart, has a great deal of experience of our tax law. Different interpretations of residency—we touched on them in Committee—are used in relation to the Hague Convention as regards international child abduction.
This type of jurisdiction has been taken twice before in the War Crimes Act 1991—the noble Lord, Lord Lester, referred to that measure which we touched on in Committee—and the Sex Offenders Act 1997. I accept that the War Crimes Act has resulted in only one successful prosecution. But this was not because there was a debate over whether or not the individuals concerned were resident in the United Kingdom. As your Lordships will be aware, the small number of prosecutions had more to do with the narrow time-scale in which offences had to have occurred and the increasing age of the suspects.
Part II of the Sex Offenders Act 1997 provides courts in the United Kingdom with the jurisdiction to deal with British citizens and United Kingdom residents who commit sex offences against children abroad. There has been one conviction under Part II of that Act. On 21st January 2000, the British owner of a French campsite was extradited from France to this country and was convicted of indecent assault on a number of girls and sentenced to three years' imprisonment.
I hope that those cases taken together will demonstrate to your Lordships and to any criminals considering coming here that where we take extraterritorial jurisdiction we are not afraid to use it.
The noble Lord, Lord Avebury, asked pointedly why we are doing now that which we have not done before in relation to dual criminality. I say openly that

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after debate and discussion in this House this was the first of our two concessions on how we address this issue. It was a concession to those who, like the noble Lord, Lord Avebury, spoke with such passion and sincerity about universal jurisdiction.
The second approach we have taken is in relation to introducing residency. We make no apology that we are breaking with tradition in this case to do that which the noble Lord has already outlined. Because of the importance of the offences with which we are now dealing, having been persuaded by the oratory of all Benches, it seems right and appropriate so to do.
A number of noble Lords mentioned the Canadian model and asked why we do not use "presence". My noble friend Lord Goldsmith is right when he outlines the inherent difficulties in using that term. We have thought long and hard about the issue. It is not a conclusion to which Her Majesty's Government have come with any great ease.
The amendments tabled by the noble Lord, Lord Lester, would have the effect of extending jurisdiction of domestic courts over non-UK nationals present in the United Kingdom who have committed an ICC offence abroad. The Government consider that "resident in the United Kingdom" is the right approach.
We agree with the sentiment behind Amendment No. 47. "A United Kingdom resident" may indeed be resident in more than one state, as the noble Lord, Lord Goodhart, has set out clearly. That is proper British law. It has been interpreted in that way on a number of occasions. I am happy to make clear today that we would also be happy, if necessary, to make that clear in the Explanatory Notes to which the noble Lord, Lord Lester, referred.
None the less, we believe that it is unnecessary, even undesirable, to specify this on the face of the Bill. Perhaps contrary to appearances, our Amendment No. 47 is not an unnecessary tautology, as I think that the noble Lord, Lord Kingsland, hinted in his usual kind fashion. "United Kingdom resident" is used in the Bill as a useful shorthand to aid drafting. In due course there is a need to explain what we mean by "UK resident". By saying that it means that a person is "resident in the United Kingdom" we are deliberately using the same wording as in the War Crimes Act 1991 and the Sex Offenders Act 1997. We are deliberately saying that a simple test of residence applies, instead of more restrictive terms such as "habitually resident" or "ordinarily resident".
To accept the amendment tabled by noble Lords would be to move away from the wording used in the War Crimes Act and the Sex Offenders Act. By so doing it would cast doubt on the width of the meaning of the words "resident in the United Kingdom" where they are used in the 1991 and 1997 Acts and indeed where used elsewhere in this Bill. In all these cases we believe that someone resident in the United Kingdom can mean someone who is also resident in one or more other countries and we would not want this to be put in any doubt.
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I hope in the light of this explanation that noble Lords will not seek to press the amendments.
On Question, amendment agreed to.
10.45 p.m.
[Amendment No. 31 not moved.]
Clause 52 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:
[Amendments Nos. 32 and 33 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 34:
Page 26, line 7, leave out ("or") and insert (", a United Kingdom resident or a").
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Clause 54 [Offences in relation to the ICC]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 36:
Page 27, line 10, leave out ("or") and insert (", a United Kingdom resident or a").
On Question, amendment agreed to.
Clause 58 [Genocide, crimes against humanity and war crimes]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 37:
Page 29, line 1, at end insert ("or a United Kingdom resident").
On Question, amendment agreed to.
[Amendment No. 38 not moved.]
Clause 59 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:
[Amendments No. 39 and 40 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 41:
Page 29, line 17, at end insert ("or a United Kingdom resident").
On Question, amendment agreed to.
[Amendment No. 42 not moved.]
Clause 61 [Offences in relation to the ICC]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 43:
Page 30, line 15, at end insert ("or a United Kingdom resident").
On Question, amendment agreed to.
Clause 65 [Responsibility of commanders and other superiors]:
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 44:
Page 32, line 10, leave out from ("or") to ("that") in line 11 and insert ("consciously disregarded information which clearly indicated,").
The noble Lord said: My Lords, Clause 65 deals with the responsibilities of commanders and other superiors, who are held responsible for offences committed by forces under their effective command and control. The change of wording proposed in the amendment returns to the theme that we have referred to earlier this evening of protection for the Armed

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Forces going about their legitimate business, which inevitably includes the use of force internationally if we are to be effective in fulfilling our international responsibilities and contributing to the peace and stability of the globe.
The alarm bells that were sounding in high military circles because of the wide and vague definitions of war crimes when brought into our statute law also sounded in respect of this clause. A senior defence source has been quoted on the subject in more than one newspaper. The clause states:
"A military commander … is responsible for offences committed by forces under his effective command and control … as a result of his failure to exercise control properly over such forces".
That applies where,
"(a) he either knew, or owing to circumstances at the time, should have known that the forces were committing or about to commit such offences, and—
(b) he failed to take all necessary and reasonable measures".
We are familiar with the words. Clearly those sentiments have caused considerable alarm. We should spend some time considering the dangers that could arise from the clause.
The problem is one of subjectivity, as with many other interpretations that we have dealt with this evening. With hindsight one can say that a commander should have known something, but what is the test? What is he supposed to have known? How should he have known it? Our worry is that the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event, presumably by the investigatory branch and the prosecutor of the ICC. We have to ask whether the ICC is in the best position to understand the details of military actions and the pressures on commanders and senior officials and what they are supposed to have known at the time. Perhaps they should have known many things, but they may have been cut off from the facts by particular circumstances.
In one sense the proposals are not objectionable, in that they bring home the fact that responsibility will be pinned on commanders as well as on those fighting in the front lines, who may have difficulty deciding whether they are exposed to some risk and are perforce committing something that could be described as a war crime. That seems fair.
However, we have to ensure that the responsibility is placed in a reasonable and sustainable way on commanding officers. If not, there could be no end to the way in which responsibility can be piled on commanders and commanders-in-chief. One newspaper article went on to quote Mr Michael Caplin, a former lawyer to the Chilean ex-dictator General Pinochet, who questioned how the Prime Minister would have been able to defend himself had he been charged with bombing targets in Kosovo in the knowledge that civilians might be killed. It was an intentional policy decision that would appear to raise difficulties under the clause. We are all very concerned
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about the security and safety of our Prime Minister, so we have to get rid of any possible doubts about the issue in this debate.
We believe that the amendment would relieve at least one of the strong concerns that are clearly felt by the Armed Forces. Of course, it will be said that we cannot do that because it would upset the wording of the Rome Statute.
Perhaps noble Lords will take my word for it if they have not had an opportunity to study it, but I ask them to look at the legislation that has passed through the Canadian Parliament in relation to these very matters. The Canadians are very keen on the ICC; they are anxious, as we are, to be founder members; and they are anxious to make it work. The following words appear in their law:
"The military commander knows, or is criminally negligent in failing to know, that the person is about to commit, or is committing, such an offence".
That is a very different kettle of fish. It is a different and much more rigorous test. It is one that I believe could be far less subjective and much more objective. Criminal negligence is a matter that can be defined, approached, analysed and handled by the ICC, or by the domestic courts if they wish to concern themselves with it.
Therefore, it is not an argument to say that those kinds of words cannot be modified, unless it is the wish of this Government to accept the Rome Statute wording beyond necessity and to the point of total adherence to the words of the statute. It cannot be said that it is not possible to depart from those words. The Canadians have done so. They are, and we hope will be, highly effective participants in the workings of the court.
Of course, these issues are of enormous concern to the United States at many levels, not only in Congress or in the Armed Forces but in the highest legal circles, as I know from having checked the matter personally. The noble Lord, Lord Goldsmith, rightly said in one of his fascinating interventions that we must bring along the Americans. I agree. I believe that it is the higher purpose of the Bill and of our deliberations that we do everything possible to bring along the Americans and to break the logjam on that side of the Atlantic. If we fail to do so, the entire credibility of the court will be seriously compromised.
Those who want the Bill to work and who want the international court to operate and to carry credibility should be thinking in terms of bringing along the Americans. At the same time, they should address the concerns of the Armed Forces, which are also the concerns of the Armed Forces in the United States. It is in that spirit that I move the amendment. I beg to move.
Lord Lester of Herne Hill: My Lords, this amendment raises a serious issue. Even at this hour, I shall detain the House for a few moments upon it. It is based on a complete misunderstanding of the existing position, both in this country and in the United States.

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Clause 65 as it stands reflects Article 28 of the statute, but it does much more than that. It sets out the well known principles that have been part of our law and practice for at least a generation. I need only turn to the 1958 edition of the Manual of Military Law, to which I referred earlier, written or edited by Judge Sir Hersch Lauterpacht and, as I recall, probably by the late Colonel Gerald Draper, another great expert, as well. Paragraph 631—I remind noble Lords that this was written in 1958 and not 2000, and I hope that the generals and others will know it almost by heart, or that certainly they will read it when they look at the report of this debate—states:
"In some cases military commanders may be responsible for war crimes committed by subordinate members of the armed forces or other persons subject to their control. Thus, for example, when troops commit, or assist in the commission of, massacres and atrocities against the civilian inhabitants of occupied territory, or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander".
It continues:
"Such responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned".
These words follow:
"The commander is also responsible, if he has actual knowledge or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and if he fails to use the means at his disposal to ensure compliance with the law of war.
The footnote states—this is not from some rare textbook, but from the Manual of Military Law which is issued to members of the Armed Forces:
"The failure to do so raises the presumption—which for the sake of the effectiveness of the law, cannot be regarded as easily rebuttable—of authorisation, encouragement, connivance, acquiescence or subsequent ratification of the criminal acts. In numerous war crimes trials—of which the Case of General Yamashita … is the most important example—various tribunals acted upon that principle".
Then the footnote gives the example from the United States Supreme Court. It explains how that court dismissed a case where General Yamashita was held responsible for negligently failing to ensure proper control over his troops. The judgment of the military commission came up for review on a question of law before the Supreme Court of the United States on a petition of a writ of habeas corpus. The Supreme Court dismissed the petition. Its judgment—this is not in the ICC statute, but in the jurisprudence of the United States Supreme Court—contains an authoritative exposition of the law applicable to the responsibility of miltary commanders.
11 p.m.
Lord Lamont of Lerwick: My Lords, would the noble and learned Lord also like to tell the House that there was an extremely strong dissenting judgment in that case?
Lord Lester of Herne Hill: My Lords, I am not learned and I am not sure about being noble. I have
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never held office as a Law Officer or a judge, but I am delighted to be thought to be that by the noble Lord, Lord Lamont.
I am not concerned with the validity of the Yamashita dissent or the majority judgment. The point is that the Supreme Court of the United States, in dismissing a petition in that case, gave an authoritative exposition of the relevant law which is in British military law handbooks for all our troops and it is entirely consistent with the ICC Statute. Therefore, I beg the Conservative Front Bench and the generals to read that handbook and tell our American friends that they might also look at their own jurisprudence where they will find the same principles on American constitutional jurisprudence as there are in English law and in the ICC Statute.
Were one to do what is suggested in the amendment and take out the words in Article 65(2)(a) and include instead a stricter test, that would be entirely inconsistent with the vital principle of responsibility which has been recognised since at least Nuremberg. Indeed, in German law, as pointed out in another passage, it was recognised in pre-Nazi Germany as well. Indeed, some of it goes back to the American Civil War. So let us not keep harking on about slavishly following some new-fangled ICC standard. This is old-fangled, thank heavens. It has been well established. It is time that the Conservative Opposition accepted a long-standing principle which goes back to the time of the Second World War.
Baroness Scotland of Asthal: My Lords, I too would like to reassure the noble Lord, Lord Howell. I know that he has expressed a great deal of anxiety about this issue. I hope that it will be of comfort to him to know that the Americans were very heavily involved in drafting this part of the statute. They had no problems with it and were content.
The noble Lord, Lord Lester, is quite right when he says that the rules of engagement outlined in the ICC Bill and the Rome Statute are long and well established. I believe that earlier at Report stage we went through in some detail the benefits that accrued as a result of successive Conservative governments rightly bringing in appropriate legislation to enforce the Geneva and other conventions.
I make it absolutely plain—the noble Lord said that this was an opportunity for us to be clear about command responsibility—that a commander is responsible for offences only if he fails properly to exercise control over military forces under his effective command and control. A commander must have known or, owing to the circumstances at the time, should have known, that the crimes were being committed or were about to be committed. A commander is responsible for offences only if he failed to take all necessary and reasonable measures within his power. Command responsibility as defined by the statute is, as we have already said, an established concept in international law and relates to the concept of neglect of duty, which already appears in the Service Discipline Acts. I hope that I can give the noble Lord comfort on that point.

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Although there has been much vaunting in the press of the concerns of the Armed Forces, the MoD has been assiduous in its duties—it has crawled all over the Rome Statute and the Bill and it is content, as are the higher echelons of each of the services. They said that they are satisfied that the legislation should not lay the Armed Forces open to prosecution when they are undertaking their legitimate duties as directed by a democratically elected government. We all know that we can get excited about press stories and how much reliance we put on statements that we read. However, I hope that tonight we have put to rest some of the concern and anxiety that has been wrongly generated.
In moving the amendment, the noble Lord is seeking to protect service personnel. I agree completely with his intention and his motives. However, I fear that the amendment that he proposes would have the opposite effect. It seeks to create a difference between the standards applied under the law of England and Wales and those applied by the ICC on the question of command responsibility. By doing so, the noble Lord would, unintentionally I am sure, create a gap in the complementarity regime. There would be an increased risk that the ICC could claim jurisdiction over cases involving military commanders, even where the case had already been investigated under domestic law, on the basis that differing standards apply. It is precisely to avoid that risk that we have chosen to adopt almost verbatim the wording of Article 28 of the statute.
Command responsibility should not cause concern within the military. As the wording makes clear, that is a form of neglect of duty, not a test of strict liability. Commanders at all levels already take responsibility for the actions of their subordinates. A commanding officer who permits his subordinates to use unsafe practices on a training range, for example, will find himself liable to disciplinary action when an accident occurs. The provision merely reflects that principle on a wider canvas.
I would like to refer to a comment that was made by the noble Lord, Lord Kingsland, in a debate on the ICC in this House on 20th July 1998. I hope that I will not make him blush by doing so. The noble Lord referred to the trials at Nuremberg, and, with great persuasion, said:
"The great strength of the Nuremberg trial was the fact that it caught the big fish; it did not just catch the 'bit part players'. That is what gave the Nuremberg process its real credibility".
Lord Kingsland: My Lords, I thank the noble Baroness for giving way. What lay behind that remark in 1998 was my sadness that, despite the intense deliberations leading up to the Rome Statute, the negotiating states were unable to agree on the insertion of a crime for the offence of aggression which was absolutely central to the prosecution at Nuremberg and, indeed, whose absence is one of the reasons why my noble friend Lord Howell has such fears about the consequences for military commanders.
We should have been much happier, on the Opposition Front Bench, had the crime of aggression been included in the Rome Statute. That would have
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provided a proper framework against which the actions of military commanders would have been judged. Perhaps I may say, humbly, that the speech which I made in 1998 should be read in that context.
Baroness Scotland of Asthal: My Lords, I certainly take on board fully what the noble Lord says about that. But I still say, with great respect to him, that what he said then, he said well. That comment accurately reflected what we are trying to do now.
The Nuremberg process had real credibility. The noble Lord, Lord Kingsland went on to say that,
"unless the big fish can be caught … the major object of an international court…will never be achieved".—[Official Report, 20/7/98; col. 626.]
We agree with the noble Lord. We consider that the principle of command responsibility serves exactly that purpose: to catch the big fish. I empathise with what the noble Lord said about the act of aggression. That was not included. But noble Lords will know that in seven years' time, we shall probably be revisiting that selfsame term and it may be that unanimity will be possible then, although it has not been possible before.
In the light of those comments, not least our assurance that we have drafted this clause with the protection of service personnel very much in mind, I hope that the noble Lord will not seek to press the amendment.
Lord Howell of Guildford: My Lords, I strongly agree with the words that the noble Baroness repeated earlier that she had procured from the chiefs of staff or, at any rate, senior military officials about their right to have protection so that they can pursue their legitimate aims. I cannot remember the Minister's precise words but they sounded admirable to me. I wholly agree with them.
I also agree wholly with the principles behind the clause; that senior military commanders shall be held to account. I was very interested in the wording which the noble Lord, Lord Lester, produced from the longstanding rules of engagement. Of course, those words are correct and good and they are clear enough to commanders. He mentioned the additional phrase "through reports received by him". If that was in the Bill, it would be a slight improvement on what we have here.
But, of course, in a sense, the past is the past. The noble Lord quoted the Yamashita case. I may be using words which are too blunt at this late hour but that is a fairly rotten example. To this very day, there is resentment in Japan about whether that was justice or merely victor justice, even though it was under United States' law. I am not sure that that is something that we want to see elevated and repeated in the context of the higher jurisdiction which we are seeking to create.
In any event, the point was that it was under United States' law, and the past rules of engagement under which senior commanders have operated in the British Army have been in the context of British law. But the whole point now is that we are creating a new and higher jurisdiction not with primary but with extensive

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powers which may, in the last instance, have the last word on who shall be investigated and charged. Of course, if it is a senior commander, the very whiff or suggestion of investigation is immediate ruin and that is very nearly the end of the matter for the public servant concerned.
I am left uneasy by what the noble and learned Lord has said and by what the noble Baroness has said. I still do not begin to understand why the Canadians, who are much more strongly—or at least equally as strongly—i n favour of this than the present Government, can manage to finesse this matter. Why is it that they can change the words and we cannot? That has not been explained.
This is a wholly undesirable note on which to come to the end of Report stage. We are simply left without an explanation of why other countries, great democracies that are totally committed to the creation of a permanent court, can apparently change the words to adapt to their domestic and constitutional needs and be more effective and fair when we cannot. This is an unhappy and unsatisfactory ending to our discussions and one that leaves many important questions in the air. The hour is late and I shall not test the opinion of the House, but I want to record firmly that at Third Reading we need to return to these matters in detail. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.15 p.m.
[Amendment No. 45 not moved.]
Clause 67 [Meaning of "UK national" and "person subject to UK service jurisdiction"]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 46:
Page 33, line 30, at end insert—
("(1A) In this Part a "United Kingdom resident" means a person who is resident in the United Kingdom.").
[Amendment No. 47, as an amendment to Amendment No. 46, not moved.]
On Question, Amendment No. 46 agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 48:
After Clause 67, insert the following new clause—

International Criminal Court Bill [H.L.]

  PROCEEDINGS AGAINST PERSONS BECOMING RESIDENT WITHIN THE JURISDICTION
  (" .—(1) This section applies in relation to a person who commits acts outside the United Kingdom at a time when he is not a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction and who subsequently becomes resident in the United Kingdom.
  (2) Proceedings may be brought against such a person in England and Wales or Northern Ireland for a substantive offence under this Part if—

  (a) he is resident in the United Kingdom at the time the proceedings are brought, and

  (b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.

  (3) Proceedings may be brought against such a person in England and Wales or Northern Ireland for an offence ancillary to a substantive offence under this Part (or what would be such a substantive offence if committed in that part of the United Kingdom) if—

  (a) he is resident in the United Kingdom at the time the proceedings are brought, and

  (b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.

  (4) In this section "substantive offence" means an offence other than an ancillary offence.
  (5) Nothing in this section shall be read as restricting the operation of any other provision of this Part.").
  On Question, amendment agreed to.
  Clause 80 [Index of defined expressions]:
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 49:
  Page 40, line 37, at end insert—
  ("United Kingdom resident section 67(1A)")
  On Question, amendment agreed to.
  Clause 81 [Commencement]:
  [Amendment No. 50 not moved.]
  Lord Lamont of Lerwick Lord Lamont of Lerwick moved Amendment No. 51:
  Page 40, line 42, at end insert—
  ("() An order may not be made under this section until all those countries which have ratified the Statute of the ICC have made their assessed contributions required under Article 115 for the operation of the Court.).
  The noble Lord said: My Lords, in moving Amendment No. 51 I shall speak also to Amendment No. 52. Amendment No. 51 is a commencement provision and suggests that an order should not be made under paragraph 5 of Schedule I until all those countries that have ratified the statute have made their assessed contributions required under Article 115 for the operation of the court.
  Technically this may not be the right way to make this point, but I make the suggestion that for this court to operate universally and to command respect it has to be backed, and backed with resources from all those who can afford to pay—those who have been assessed as being required to make a contribution. This great institution is supported by the freedom-loving countries of Zimbabwe and Iran but not by the United States. Will Zimbabwe and Iran make their contributions before the court is up and running?
  This institution is not one that will be backed by the United States, so funding will have to come from other countries. My point is that I believe that the credibility of the institution will be at stake—I wonder whether I can have the attention of the Minister—if those who support it, with all the high declarations, are not actually prepared to put money into it.
  There are concerns about the Yugoslav war tribunals, but they have been financed only by a minority of states and disproportionately by Muslim states. Some people have been concerned about that. The principle in this amendment is that for the court to have credibility the financing should be provided by all

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  those who lend their authority and the names of their countries to the great declarations that we have been discussing.
  Amendment No. 52 refers to voluntary contributions. Under Article 116 of the statute, most extraordinarily, provision is made for voluntary contributions from individuals, corporations and other entities. I ask the Minister, what kind of court is it that is partly privately financed? How can one have a court which is to some extent financed by NGOs, by pressure groups? The Minister will know that I previously raised the question about the Yugoslav war tribunals. Some of the equipment in those courts has been provided by private organisations. Mr Soros provided some of the money and some of the equipment. I have nothing against him but I ask whether it is appropriate for a court. What kind of court will be financed by private individuals, corporations and other entities?
  I have sought a limit of 5 per cent because to have a court that is financed to a greater extent by private sources would call into doubt the impartiality of the court. It should not be captured by private organisations. I beg to move.
  Baroness Scotland of Asthal: My Lords, no state will pay an assessed contribution until the court is up and running. Even more fundamentally, no state will pay an assessed contribution until a first assembly of states parties have adopted the financial rules and regulations of the court, determined at the first budget of the court and agreed on the scale of assessment.
  In practice, therefore, the effect of these amendments would be to delay UK ratification until all that has happened. In other words, the amendments would frustrate the Government's intention of the UK being among the court's founding members.
  We believe it is important that we should be at the first assembly of states parties. We think that not only because we think it is right that Britain, in view of her foremost contribution to international law and the development of human rights, should be represented at the outset of this historic and noble enterprise. We believe it also because unless we are there, Britain will have no opportunity to influence the issues about which the noble Lord, Lord Lamont, has expressed concern.
  On the question of assessed contributions, Article 117 of the Rome Statute provides that the scale of assessment shall be based on the scale adopted by the United Nations for its regular budget. I do not think
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  that that should cause any of your Lordships any particular concerns: we of course pay our fair share of the UN regular budget and we will of course have to pay our fair share of the ICC's costs.
  The noble Lord expressed concern about other states failing to pay on time. This is not a problem which has escaped the notice of ourselves or the other states involved in the negotiation. Article 112.8 of the statute already provides that a state party in unjustified arrears will lose its vote in the assembly of states parties.
  The noble Lord was also worried about undue reliance on voluntary funding. I hope that I can set his concerns to rest. Article 115 already makes it clear that the expenses of the court will come from the assessed contributions and from funds provided by the United Nations. So the fundamental operation of the court and its prosecutor will come from assured funding. As for voluntary funding, the first assembly of states parties will determine the criteria on when and to what extent voluntary funding can be accepted. That is one more reason for the UK to be represented at that first assembly.
  It is extremely important that the ICC must indeed work in an efficient, cost-effective and independent manner, with adequate, reliable funding and proper financial oversight. As to that point, I am in complete agreement with the noble Lord. That was what our negotiators worked towards last week at the ICC preparatory commission as they dealt with the court's financial rules and regulations. They will continue to do that when the United Kingdom is a state party to the ICC.
  I hope that that puts at rest the mind of the noble Lord and enables him to withdraw his amendment. I am confident that the noble Lord does not wish to disable this country from making proper, cogent arguments to ensure the efficient operation of the new court.
  Lord Lamont of Lerwick: My Lords, I am grateful for the reply of the noble Baroness, which I shall study. Obviously, my motive is not to disable the court in any way. I was puzzled about the role of private voluntary contributions. I remain somewhat puzzled and am a little disturbed by their role in the Yugoslav war tribunals. But in view of the response of the noble Baroness, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 52 not moved.]
  House adjourned at twenty-six minutes past eleven o'clock.