Examination of Witness (Questions 80-99)
CLAIRE WARD
MP, MS DEBORAH
GRICE AND
MR GILAD
SEGAL
1 JULY 2009
Q80 Mr Timpson: Staying with the
theme of retrospection, the MoJ wrote a note for the Justice Committee
in October 2008 which said, "Retrospection was firmly ruled
out at the time Parliament debated the ICC Act 2001 ... ."
There is some concern in this Committee that, having gone through
Hansard, there appears to be no real or substantial debate
about that issue. I would therefore be grateful—I am not
necessarily suggesting that the Minister is able to point to it
right now—if the Committee could be provided in writing
with a reference to the part of the debate where proper consideration
of that issue took place, to back up the statement that the MoJ
made to the Justice Committee in October last year.
Claire Ward: I am more than happy
to look at that issue, to find some further details and write
to the Committee. Unfortunately, I am not in a position to answer
that now.
Q81 Earl of Onslow: Another inconsistency
in the UK jurisdiction over different international crimes is
the residency requirement. Why should a foreign genocide suspect
who comes on a shopping spree to Bond Street be free to go away
again, when somebody who is resident should not?
Claire Ward: I am sorry, I did
not quite catch that.
Q82 Earl of Onslow: It is visitors
versus residents. In other words, if somebody who has a record
of bloodthirsty disgustingness as long as your arm wants to come
shopping in Bond Street, probably with nicked overseas aid, they
get away with it; whereas if somebody happens to be a resident
in this country they do not get away with it. Can you tell me
why this is?
Claire Ward: The 2001 Act describes
a UK resident as a person who is resident in the UK and if you
have come here to go shopping in Bond Street—
Q83 Chairman: There is a better example
and it is this. Somebody who is alleged to have committed genocide,
if they are coming on the Bond Street shopping spree, cannot be
arrested; but if somebody has committed torture—a nasty
offence, alleged, but probably rather less than genocide—they
can be arrested. Why do we have this inconsistency between genocide
and torture, depending on whether you are resident or whether
you are just here? In the end, it seems to be inconsistent that
the more serious offence cannot be subject to arrest whereas the
lesser one is.
Claire Ward: Essentially, it is
because the international community has allowed for that level
of jurisdiction around torture but not in respect of genocide.
Q84 Chairman: It is because the UK
Government has chosen to implement it in that way, not because
the international treaties require that.
Claire Ward: There are international
agreements about torture and hostage-taking, where the international
community has agreed that universal jurisdiction should be taken
over such offences. It has not agreed that universal jurisdiction—
Q85 Chairman: It is not universal
jurisdiction. Let us make it clear. It is the basis on which somebody
is in the UK. If somebody is in the UK and they live here permanently,
that is one set of tests. If somebody is just coming to visit—and
that could be for quite a long period, as a student or for medical
treatment or a Bond Street shopping spree—that is different.
To prosecute somebody for genocide, they have to be resident,
i.e. permanently here, effectively, and not just coming
as a student, for a Bond Street shopping spree or for expensive
Harley Street medical treatment; whereas for torture it is different.
Somebody who just turns up can therefore be arrested for torture,
even if they are just here for the Bond Street shopping spree
or a quick consultation in Harley Street. Why is there a difference
between residency and presence with those two offences, particularly
when the more serious one is treated more leniently?
Claire Ward: That is what Parliament
decided in 2001. We certainly recognise that there is an issue
about the clarity of the term "resident". It is considered
by the courts on a case-by-case basis as a matter of fact. One
of the issues that we are taking into consideration at the moment
is whether or not we can give greater clarity in the legislation
for the courts, still allowing the courts to be able to have discretion
but perhaps a little more clarity around those difficult issues
which you mention.
Q86 Chairman: What causes confusion
is the word "residency". If you are trying to decide
about someone who is a resident or who is not, that does cause
confusion because you get an argument about length of stay, and
all the rest of it. What does not cause confusion is the simple
test: are they here or aren't they? There is no confusion about
that. Either they are in jurisdiction or they are not. Perhaps
I could ask you what your opinion is. Do you think that people
who are alleged to have committed genocide should be allowed to
come on shopping sprees to Bond Street and not be arrested, or
not?
Claire Ward: What we have said
in the legislation—
Earl of Onslow: No, that is not the question
you were asked.
Q87 Chairman: It is a straightforward
question. Do you think somebody who is alleged to have committed
appalling genocide in a West African country or wherever, probably
with their ill-gotten gains, as the Earl of Onslow has said, from
pilfering international development aid, who turns up in Bond
Street with their cheque book—or, more likely, suitcase
full of cash—and goes on a shopping spree to Asprey's to
buy loads of diamonds for his girlfriend, do you think he should
be allowed to do that without facing arrest?
Claire Ward: I think it is about
whether or not we are providing a safe haven for people to come
to the UK. We make it quite clear that people who are coming to
the UK, who are transitory in one form or another, are not simply
seeking a safe haven. Those who are resident in the UK—a
matter of fact about whether or not they are resident, determined
by the court—are seeking a safe haven. That is essentially
the distinction, on the basis of presence or residence.
Q88 Earl of Onslow: Minister, you
are doing very well dodging bouncers but they are still going
to come at you. The difference between the torturer who cannot
go shopping but the genocidal maniac who can—what is the
moral difference between those two? I cannot see it, but then
perhaps I never went to university and various things like that,
so I may not be clever enough.
Claire Ward: All I can say to
you is on the basis of when the legislation—where it has
been agreed on the international community about—
Q89 Chairman: This is not required
by the international community; it is how we have chosen to interpret
it. Other jurisdictions have different interpretations of this.
We are entitled, if we want, to say that the genocidal maniac
can be arrested the moment they step off the plane at Heathrow,
if that is what we want to do. That is perfectly within our discretion
under international law, yet we choose not to do so. What do you
think it says to our moral authority in the world when we are
effectively allowing all these murdering people—alleged—to
come and have their treatment in Harley Street, or go shopping
in Bond Street or attend a university course, with impunity?
Claire Ward: I would say that
we also have to bear in mind that there are some practical difficulties
in simply extending the legislation to cover presence rather than
residence. In terms of presence—
Q90 Earl of Onslow: What are the
difficulties?
Claire Ward: What are the difficulties?
The difficulties are if you have somebody who is literally in
transit from one country to another; planes are diverted; perhaps
even an opportunity to physically divert a plane through hostage-taking,
because somebody knows of someone who may well be on the plane
who may be guilty of genocide. Issues around—
Q91 Chairman: Surely we should be
making it difficult for these people to go around the world with
impunity rather than making it easier?
Claire Ward: We are not making
it easier. We are also looking at the practical issues of being
able to enforce these matters. We are also looking at the impact
that this will have in terms of our having to deal with other
countries. We have to ensure that there is some agreement on how
these things are worked. If you look at other countries, how many
of those have successfully taken those prosecutions? As I have
said before, it is okay to put this legislation onto statute but
you have to be able to ensure that it is going to work and it
is going to be able to work practically.
Q92 Chairman: There is a whole raft
of offences here where we do not have universal jurisdiction or
extraterritorial jurisdiction. Is it not rather embarrassing that
Spain can apply to the UK for extradition of some murdering, evil
dictator for trial in Spain, and yet we cannot try them here?
Claire Ward: It might be worth
considering the fact that the two countries that I understand
did have that level of jurisdiction—Belgium has already
rolled back from it and Spain are in the process of considering
doing so. Therefore, that might actually suggest that there are
a lot of difficulties with having that high level of jurisdiction.
I think that we also need to bear in mind how that would be seen
internationally, as the UK as the policeman of the world. We may
have very strong views on this issue but this has been written
into statute since 2001.
Q93 Earl of Onslow: We are not sending
a gunboat up the Brahmaputra to arrest somebody; what we are doing
is that, where somebody goes shopping in Bond Street who has a
record as long as your arm for chopping people's legs off, or
whatever it may be, he can be slotted. That strikes me as being
a very simple thing to do and I can see no objection at all. We
are obviously not going to get anywhere. You are doing absolutely
brilliantly at bouncing the Chairman and myself, putting on not-a-very-good
answer to what I hope is a decent question. Could we just ask
you to go away and think about it, and to see what you can do?
See if the Government could not find some way of addressing the
feelings that have been expressed by both myself and the Mr Dismore.
Claire Ward: The commitment I
can give to you is that we are considering all those issues. We
are aware of those difficulties and, as I have said, we are looking
at whether or not we can clarify the law in respect to what may
be UK residence.
Q94 Earl of Onslow: If you do change
your mind, I promise that we will not hold your previous answers
against you.
Claire Ward: That is very kind,
thank you.
Chairman: Let us look at some of the
practical difficulties—alleged.
Q95 John Austin: Could I turn to
the question of the Attorney General's role in relation to international
crimes? It is the issue of separation of powers. Is it right that
someone who is sitting in Parliament and sitting in Government
should have the decision-making over whether the prosecution may
take place or not? Would it not be better to leave this to the
Director of Public Prosecutions?
Claire Ward: I think the level
of crimes we are talking about are such serious and significant
crimes that they also in most cases will have some impact upon
our international relations and, potentially, the UK's security.
Therefore, it is important that not only the DPP has a view on
this but that the Attorney General is in a position to take account—
Q96 John Austin: Are you really saying
that political considerations apply when somebody is potentially
guilty of the most horrendous war crimes and crimes against humanity?
Claire Ward: I think that it is
not simply about political considerations; it is about public
policy considerations and about taking into account the overview
of the situation, which I think the Attorney General is in a position
to do.
Q97 John Austin: The Attorney General
can issue the guidance and it can be discussed and scrutinised
and transparent, but the political role? Let us take a hypothetical
case: the Israeli major. It was possible to get an arrest warrant,
although it would have required the Attorney General's consent
for prosecution; but the arrest warrant was obtained. Somebody
tipped the guy off and he never arrived. But, had he arrived,
the decision as to whether to prosecute would have been a political
decision? Not on the merits of the severity of the crime?
Claire Ward: In normal circumstances,
the decision by the Crown Prosecution Service to prosecute, at
whatever level, will also take into account whether it is in the
public interest. I believe, and the Government believes, that—certainly
in crimes such as this and the impact that this may have upon
international relations, potentially on UK security—these
are issues that are of such a high level that, yes, they should
be considered by the Attorney General, who will consider whether
or not it is in the public interest to prosecute.
Q98 Chairman: What happened to ethical
foreign policy?
Claire Ward: We have ethical foreign
policy, and obviously all members of the Government bear in mind
that foreign policy in everything they do.
Q99 Lord Morris of Handsworth: Can
I continue with the barriers, the hurdles and the difficulties?
The Government has pointed to "considerable practical barriers
to prosecution" and they give some examples.—difficulties
of cost and difficulties with evidence—and they noted that
these cannot be alleviated by a change of law. Here they have
the support of Sir Ken Macdonald, because he pointed out that
there are lots of categories of offences which are time-consuming
and complex to prosecute, like terrorism and money-laundering.
The real question we have to ask here is a moral question, quite
frankly. Are the practical problems regarding enforcement a good
reason for not changing the law?
Claire Ward: There clearly are
practical considerations. We have not argued that practical barriers
to prosecutions are, by themselves, a good reason not to change
the law; but we also need to be realistic about those difficulties,
particularly in relation, for example, to genocide or to war crimes
somewhere on the other side of the world. The realities of getting
evidence, finding the witnesses, language barriers—there
is a whole range of difficulties in terms of actually getting
the evidence. We need to look not simply at legislation, therefore,
but also at other things we can do to support those countries.
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