The
Committee consisted of the following
Members:
Blunt,
Mr. Crispin
(Reigate)
(Con)
Brokenshire,
James
(Hornchurch)
(Con)
Challen,
Colin
(Morley and Rothwell)
(Lab)
Davis,
David
(Haltemprice and Howden)
(Con)
Gummer,
Mr. John
(Suffolk, Coastal)
(Con)
Gwynne,
Andrew
(Denton and Reddish)
(Lab)
Heppell,
Mr. John
(Nottingham, East)
(Lab)
Hill,
Keith
(Streatham)
(Lab)
Hillier,
Meg
(Parliamentary Under-Secretary of State for the Home
Department)
Holmes,
Paul
(Chesterfield)
(LD)
Howarth,
David
(Cambridge)
(LD)
Knight,
Mr. Greg
(East Yorkshire)
(Con)
McCabe,
Steve
(Lord Commissioner of Her Majesty's
Treasury)
Prentice,
Mr. Gordon
(Pendle)
(Lab)
Sharma,
Mr. Virendra
(Ealing, Southall)
(Lab)
Wilson,
Phil
(Sedgefield) (Lab)
Sara
Howe, Committee Clerk
attended the Committee
Second
Delegated Legislation
Committee
Tuesday 11
November
2008
[Robert
Key in the
Chair]
Draft International Criminal Court (Remand Time) Order 2008
10.30
am
The
Chairman: Before we begin consideration of the order, I
inform the Committee that in accordance with Mr.
Speakers wishes, I will call the Committee to order at 11 am
precisely, when we will stand to observe a two-minute silence. Hon.
Members may also remove their jackets, if they so
wish.
The
Parliamentary Under-Secretary of State for the Home Department (Meg
Hillier): I beg to
move,
That
the Committee has considered the draft International Criminal Court
(Remand Time) Order
2008.
It
is a pleasure to serve under your chairmanship, Mr. Key. I
welcome right hon. and hon. Gentlemen to this Committeethat the
members of the Committee are all right hon. and hon. Gentlemen is
unusual.
Todays
statutory instrument updates our domestic law to match the rules of the
International Criminal Court, to which we have signed up. The statute
of Rome created the ICC, and to play a full part in the life of the
Court and to meet all the necessary requirements, the UK passed the
International Criminal Court Act 2001 to put the statute into effect in
our domestic laws. To ensure that we continue to play a key role and
comply with the Courts procedural and evidential rules, the
Government are seeking to specify the total upper limit for which an
individual arrested under section 3 of the 2001 Act, which is our
domestic legislation, can be held on remand and the upper limit for
which an individual can be held on remand on any single occasion
following a section 3 provisional arrest. The order sets those limits
at 60 days for the total length of time that somebody can be held after
provisional arrest and 18 days for each individual provisional
arrest.
The
United Kingdom is a long-standing supporter of bringing perpetrators of
international crimes, including genocide, war crimes and crimes against
humanity, to justice. We are rightlyI am sure all right hon.
and hon. Gentlemen agree with thisa signatory to the Rome
statute, which established the ICC, and we were among the
Courts founding members. We have also supported the
International Criminal Tribunal for the Former Yugoslavia and the
International Criminal Tribunal for Rwanda, which are doing important
work.
Through
section 2 of the 2001 Act, the UK can successfully action non-urgent
requests from the Court for the arrest and surrender of accused
persons. However, in cases of urgencythis is what
todays change will make a difference onthe Court may
request the UK provisionally to arrest a person alleged to have
committed a crime over which the Court has jurisdiction; for example,
arresting someone in transit through the UK,
whom we need to hold while the normal legal processes take place. Such
an arrest would not lead to a surrender until a section 2 request is
received and properly considered by a competent UK court. This is a
question not of arresting people for the sake of it, but of arresting
people who are alleged to be international war
criminals.
When
the 2001 Act was adopted, the ICC had not reached a decision on the
total length of time a person may be remanded in custody following
their provisional arrest. Now, rule 188 of the ICC rules of procedure
and evidence sets 60 days as the upper limit for the total number of
days a person can be held on
remand.
As
required by section 4(4)(b) of the 2001 Act, an Order in Council is
needed to update our existing legislation and to ensure that the UK
continues to meet our obligations. At the same time, it is sensible to
update the 2001 Act to reflect the maximum length of time a person can
be held on remand on any single occasion. In relation to equivalent
provisions for the other two UN-established courtsthe ones that
I mentioned earlier relating to the former Yugoslavia and
Rwandaa limit of 18 days was adopted. There seems no reason why
we should deviate from that 18-day period, so 18 days is therefore
proposed as the limit on how long a person can be held on remand on any
single occasion up to the 60-day total that I have
mentioned.
James
Brokenshire (Hornchurch) (Con): On the periods of 18 and
60 days, will the Minister confirm that if someone were arrested under
a provisional warrant under section 3 of the 2001 Act, a court would
remand them in custody for a maximum period of 18 days, after which
they would be brought back to court for consideration whether a further
period of 18 days would be appropriate up to a maximum period of 60
days? In other words, there would be continual consideration of the
case if a section 2 request had not been received at that point in
time.
Meg
Hillier: The hon. Gentleman has accurately summarised the
situation. If one were to take the example to the extreme, one could
arrest somebody under a provisional arrest warrant four
timesthree 18s plus a little bit more. However, it is unlikely
that we would have to hold somebody for as long as 18 days under
provisional arrest. We would expect to receive paperwork and go through
the full arrest warrant within that 18-day period. As the hon.
Gentleman has rightly stressed, there is a proper judicial safeguard to
ensure that we apply normal legal
safeguards.
Mr.
Greg Knight (East Yorkshire) (Con): Will the order fetter
the right of a court to grant bail in certain cases? I am thinking of a
case in which a 90-year-old alleged second world war criminal is
receiving hospital treatment. In appropriate cases, will the Court
still be able to grant
bail?
Meg
Hillier: The Court could grant bail in theorybail
can be granted under section 16 of the 2001 Act. We would not grant
bail if someone were likely to flee, but I will answer the right hon.
Gentlemans precise point at the end. Normal judicial safeguards
will be in place, so someone can go to a district judge.
Both the
limits that I have mentioned will ensure that a person who is arrested
under section 3 following provisional arrest will not be held
indefinitely, as the hon. Member for Hornchurch has said. It is
important to implement the ICC rules into our domestic legislation so
we can administer them expediently. I commend to the order to the
Committee.
10.37
am
James
Brokenshire: It is a pleasure to serve under your
chairmanship again, Mr. Key. I also welcome the Minister and
other hon. Members to the Committee this morning.
As the
Minister has said, the order entails the further implementation of this
countrys obligations under the Rome statute of the ICC, to
which this country is a signatory. The ICC is an independent, permanent
court that tries persons accused of the most serious crimes of
international concern, namely genocide, crimes against humanity and war
crimes. The statute has some 108 signatories, and we support the
Courts work in bringing war criminals to justice. I therefore
indicate that we will not oppose the order this
morning.
The
order deals with the period during which a person may be remanded in
custody under a provisional warrant issued by the Secretary of State
following receipt of a request for the provisional arrest of the person
alleged to have committed an ICC crime or to have been convicted by the
ICC. Article 92 of the Rome statute states that the provisional arrest
power is intended to be used in urgent cases pending the presentation
of a formal request for surrender and the documents supporting that
request as specified in article 91 of the statute. That is reflected in
our law in sections 2 and 3 of the 2001 Act.
The receipt
of a valid request under article 91 would trigger the issue of a
warrant under section 2 of the 2001 Act. If a person is arrested under
a provisional warrant, that person must be brought before a court as
soon as is practicable and the court is required to remand them until a
section 2 warrant is issued. As we have heard from the Minister, the
maximum time limit of 60 days set out in this order reflects rule 188
of the ICC rules of procedure and rightly ensures that someone cannot
be kept on remand indefinitely following arrest under a provisional
warrant.
I
have some probing questions and points of clarification for the
Minister. In what circumstances, following remand under a provisional
warrant, can a suspect be released, if it is apparent that a formal
request under article 91 will not in fact be forthcoming? My right hon.
Friend the Member for East Yorkshire has referred to the availability
of bail. If someone is remanded for an 18-day period and during that
time, whether due to mistaken identity or otherwise, it becomes
apparent that a further section 2 warrant will not be issued, would the
person remanded have to wait until the end of that 18-day period, or
would release take place following a communication from the ICC that,
for whatever reason, a formal application will not come
through?
Article
92.2(c) states that a request for a provisional arrest will contain a
statement of the existence of a warrant of arrest. Will the Minister
confirm which authority will issue such a warrant of arrest and provide
further detail on the nature of the documentation that would
be required and on which the Secretary of State would seek to act given
a provisional request from the
ICC?
Will
the Minister confirm what evidence the ICC would have to produce to
support a provisional warrant? Does the ICC have to produce evidence of
a prima facie case against the suspect? Article 92.2(b) refers to a
statement of facts alleged to constitute the relevant crimes. Is there
a standard of proof that has to be satisfied by the ICC in making its
request to the Secretary of State, or will a standard be imposed on the
ICC, given that we are discussing an allegation and a provisional
arrest
warrant?
Do
the time limits relate to a specific provisional arrest request or to
the individual concerned? Is there a mechanism by which someone can be
subject to several provisional arrest requests, which would lead to
consecutive 60-day periods based on further requests coming out of the
ICC? I want to understand the process and
procedures.
Section
3(2) of the 2001 Act states that the Secretary of State shall transmit
the request to a constable for execution
If it
appears to the Secretary of State that application for a warrant should
be made in England and
Wales.
Will
the Minister confirm what discretion that gives the Secretary of State
on whether an application should be made? Will it be automatic
following a request from the ICC that a provisional arrest is made due
to urgent circumstances, or is an element of discretion denoted by the
way in which the Rome statute has been incorporated into our law? Does
the Secretary of State have the right either to take a contrary view,
or to take the view that it is not appropriate to seek a formal warrant
by virtue of the application being made to a constable and that being
passed on to the relevant court, or is it simply for the Court to
decide whether the appropriate steps have been
taken?
In
what circumstances would action be taken to charge and try a person who
is the subject of a request for arrest and surrender in this country?
If evidence were to come to light that an individual is alleged to have
committed various crimes, in what circumstances would a court here have
jurisdiction to see that justice is done in this country, rather than
arranging for the extradition or transfer of that individual to the
jurisdiction of the
ICC?
Does
the Minister agree with the recent comments by Ken Macdonald, the
former Director of Public Prosecutions, who said that
there are
serious gaps in our
law
with
regard to bringing those suspected of genocide or war crimes to justice
in this country? The former DPP has suggested that the current
structure includes some gaps that could prevent certain persons being
brought to justice here in the UK rather than facilitating the transfer
to an external jurisdiction. If the Minister were to comment on those
points, it would assist my understanding of the operation of the order
and re-emphasise that the procedures are right and appropriate and that
they will assist, as I am sure that they are intended to do, in
bringing those suspected of committing appalling atrocities, which
sadly we have seen in many parts of the world, to justice and ensuring
that such people stand trial.
10.45
am
Paul
Holmes (Chesterfield) (LD): The Liberal Democrats support
the 2001 Act and the measures that the Government have taken to ensure,
along with all the other signatory countries, the smooth operation of
the legislation.
When this
statutory instrument was debated in the other place, one question was
not answered. The question drew a parallel with the operation of the
European arrest warrant. There has been some controversy about arrest
warrants being issued in one country for crimes that have no parallel
in the country in which the warrant is served. I assume that that
question was not answered in the other place because we are not
discussing the European arrest warrantwe are discussing a
commonly established agreement.
Everyone who
has signed up to the ICC is committed to pursuing people who have
committed acts of genocide, crimes against humanity, war crimes and
crimes of aggression. Those crimes are of such a level that a uniform
agreement has been reached, so the question posed in the House of Lords
is perhaps irrelevant. However, we should consider the case of a
country that has been subject to a military dictatorship and where
crimes against humanity have been committed as a result. In order to
persuade that dictator or military junta to stand down without the need
for a prolonged civil war or for the continuation of an existing civil
war, sometimes indemnity against prosecution is offered in that
country. At a later date, however, prosecutions may be undertaken
either within that country or from related countries. For example,
Spanish judges issued warrants against members of both the Chilean and
Argentinean juntas, which operated 20 or 30 years ago. Indemnity was
agreed within those countries, but a Spanish court started to pursue
those involved because Spanish citizens caught up in events were
affected.
Will
the Minister clarify whether a court in England that is considering
remanding somebody where a warrant has been issued under the 2001 Act
will only act following a specific request from the ICC, or is there
scope for acting in response to other peoples requests? If
action can only be taken in response to the ICC, what leeway is there
for magistrates who are considering such a request to exercise their
judgmentit is often political judgment? We all generally agree
on the definitions of an act of genocide, crimes against humanity and
war crimes, but on crimes of aggressionthe second Gulf war is
an example from closer to homethere is sometimes dispute about
whether an invasion is legitimate under international law and whether
it counts as a crime of aggression, which is a point that we have
debated in this
House.
In
some areas, the issues are not clear-cut. There is general agreement
that we all want to prosecute international war criminals who commit
acts of genocide. Will the courts in Britain only act at the request of
the ICC? What degree of leeway is there in their consideration whether
the issuing of an arrest warrant to place someone on remand is
legitimate and should be acted
on?
10.49
am
Meg
Hillier: I welcome the support from all parties for the
order. It is important to act responsibly on the issue to tackle those
terrible crimes. Hon. Gentlemen have raised a number of points, and I
will canter through them in the order in which they were
raised.
The hon.
Member for Hornchurch asked in what circumstances a suspect can be
released, and he raised the example of a case of mistaken identity. As
soon as the ICC advises that there is an issue such as mistaken
identity or that a proper arrest warrant will not be forthcoming,
someone could be released. That would also happen once the 60-day
period is up, although we think it unlikely that matters would reach
such an
extent.
On
the authority that issues the warrant, the issuing authority is the
ICC, which is the current law. The standard of proof required by the
ICC is set out in the rules of procedure, part of which we are adopting
today. If the hon. Member for Hornchurch wants further information on
the exact details of the rules of procedure, I am happy to write to him
or to talk to him afterwards about what he
requires.
The
Secretary of State does not have discretion over the issue of 60 days,
which is for the constable to consider. The process is legal, so the
Secretary of State does not have a part in
it.
The
safeguards to ensure that people are not surrendered arbitrarily are
clear. On the surrender of a person who is alleged to have committed an
ICC crime, a request must be transmitted to a designated district
judgein Scotland, the relevant person is the sheriff of Lothian
and Borderswho will consider whether to endorse or issue a
warrant for that persons arrest, which ensures that the
appropriate judicial safeguards are in place. It is important to go
through that normal legal process in spite of our being a signatory to
the ICC. Prior to the date designated by the Secretary of State for the
execution of a delivery order, the person who has been arrested under a
provisional warrant can make an application for habeas corpus under
section 12(2) of the 2001
Act.
The
ICC does not have primacy over UK law. It is a court of last resort, so
it is important that proper legal processes are in place. If the UK
were to instigate proceedings against a person, the ICC would no longer
have a mandate to investigate them. That important safeguard hopefully
reassures the hon. Member for Chesterfield. The one caveat is where
there is concern that national proceedings were initiated solely to
shield a person from ICC proceedings, which none of us wants
to see.
Mr.
Knight: Will the Minister clarify that point? Is she
saying that if a person is investigated and prosecuted, whether they
are acquitted or found guilty, the ICC has no locus standi, or is she
saying that the mere investigation of someone would remove the
ICCs competence? I can envisage circumstances in which someone
is investigated and it is decided in the UK that there is insufficient
evidence.
Meg
Hillier: I reassure the right hon. Gentleman that the
ICCs jurisdiction is not negated by someone being found guilty
or not guilty in their country of origin. The procedure includes
safeguards, but, as I have said, it is important to make sure that we
do not allow countries to abuse the system by instigating proceedings
to shield people from the
ICC.
James
Brokenshire: First, my right hon. Friend has highlighted
the relevant point that the ICC is a court of last resort. If someone
is tried and acquitted in this
country, it would be the end of the situation, because the ICC would not
have locus standi in such
circumstances.
Secondly,
Ken Macdonald has said that
Suspects
can be tried for genocide, war crimes and crimes against humanity
committed abroad only if they are UK residents or nationals, and if
they committed their crimes after the International Criminal Court Act
was passed in 2001. Quite illogically, this differs from hostage-taking
and torture, which are fully prosecutable here, wherever the offences
took place, and have no nationality or residency
requirements.
Has
the Minister considered that point with her colleagues in the Ministry
of Justice? The former DPP has made an interesting point about the
ability to prosecute those suspected of having committed war crimes,
if, for example, the ICC were to decide, for whatever reason, not to
take up the
case.
Meg
Hillier: It is worth stressing that the law of individual
countries has primacy in all cases, although it is worth having the ICC
for all the reasons that we have mentioned this morning. As the hon.
Gentleman has rightly highlighted, we are dealing with a narrow point,
and I am happy to examine the issues that he has raised. It is
important that we have the opportunity to consider crimes that are
bigger than one individual country and that we do not allow people to
obtain shelter in a country when they have committed crimes elsewhere.
We have got to get the balance right, and I will look into the matter
and write to the hon. Gentleman about the ongoing discussions with the
Ministry of
Justice.
Paul
Holmes: The Minister has said that it is important that an
individual is not sheltered and that they can be prosecuted by the ICC.
Consider the case of an African country in which the Government had
used military power systematically to abuse, intimidate and repress the
democratic opposition. If that country were to arrive at a compromise
by which no one involved was prosecuted but the Government gave
waya former colonial power, such as Britain, might have been
involved in brokering the dealwhat would happen if the ICC were
to decide to issue a prosecution and arrest warrant? Is there any
leeway for a country such as Britain to say that it would not follow
through on that, because it
helped to broker a deal in the country in which the atrocities took
place in order to end a civil war without conflict and to facilitate
the peaceful transfer of power?
Meg
Hillier: No one is above the law. I will write to the hon.
Gentleman on that specific point.
The right
hon. Member for East Yorkshire has raised the issue of bail. The
decision on bail will be made by a judge applying the principles set
out in the Bail Act 1976, so the bail procedures are set out
in UK law and the order does not alter that position. In many cases,
however, bail is unlikely to be granted because of the risk of fleeing,
although the right hon. Gentleman raised an example in which that might
not be the case.
The hon.
Member for Chesterfield raised the example of the European arrest
warrant. As he rightly indicatedI am aware of the debate in the
other placethat is not a matter for debate in this Committee.
Indeed, there are many issues around the European arrest warrant that
we can debate on another occasion.
The hon.
Gentleman also discussed crimes of aggression, which are not under ICC
jurisdiction. That cannot apply at the request of the ICC, and there is
no particular leeway on that
matter.
James
Brokenshire: The Minister has discussed the order being
used in urgent cases. I take her point that that is not at the
discretion of the Secretary of State and that it is a procedural
matteronce a request is made, it is passed to a constable and
then to a court. Do I therefore understand that the decision whether
there is sufficient urgency is a matter for the ICCthe Minister
raised the example of someone passing through this country and other
urgent issues might arise? Does the ICC decide whether a matter is
urgent?
Meg
Hillier: The hon. Gentleman is right.
This
mornings debate has been very interesting, and I commend the
order to the
Committee.
Question
put and agreed
to.
Resolved,
That
the Committee has considered the draft International Criminal Court
(Remand Time) Order
2008.
Committee
rose at one minute to Eleven
oclock.