International Criminal Court Bill [H.L.]

HL Deb 08 March 2001 vol 623 cc404-38

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 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 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 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 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—

1. (a) whether the person was lawfully arrested in pursuance of the warrant, and
2. (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 corpusthe 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 HerneHill 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 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 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 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 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.

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 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 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 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. 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 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— 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 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".

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 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 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.

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 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 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 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 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 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 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 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 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.

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 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.

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 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 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 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 moved Amendment No. 48:

After Clause 67, insert the following new clause—

cc435-8
1. PROCEEDINGS AGAINST PERSONS BECOMING RESIDENT WITHIN THE JURISDICTION 1,438 words