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Public Bill Committee Debates

Draft International Criminal Court (Remand Time) Order 2008

The Committee consisted of the following Members:

Chairman: Robert Key
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. Speaker’s 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 Committee—that the members of the Committee are all right hon. and hon. Gentlemen is unusual.
Today’s 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 Court’s 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 rightly—I am sure all right hon. and hon. Gentlemen agree with this—a signatory to the Rome statute, which established the ICC, and we were among the Court’s 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 urgency—this is what today’s change will make a difference on—the 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 courts—the ones that I mentioned earlier relating to the former Yugoslavia and Rwanda—a 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 times—three 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 theory—bail 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. Gentleman’s 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 country’s 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 Court’s 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 warrant—we 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 people’s 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 judgment—it 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 aggression—the second Gulf war is an example from closer to home—there 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 judge—in Scotland, the relevant person is the sheriff of Lothian and Borders—who will consider whether to endorse or issue a warrant for that person’s 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 ICC’s 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 ICC’s 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 way—a former colonial power, such as Britain, might have been involved in brokering the deal—what 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 indicated—I am aware of the debate in the other place—that 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 matter—once 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 ICC—the 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 morning’s debate has been very interesting, and I commend the order to the Committee.
Question put and agreed to.
That the Committee has considered the draft International Criminal Court (Remand Time) Order 2008.
Committee rose at one minute to Eleven o’clock.

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