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Lord Williams of Mostyn: I entirely accept what the noble Lord, Lord Howell, said about the general stance which he and the Opposition Front Bench have adopted.

I revert to the last remarks--I am sorry; I believe that the noble Lord, Lord Campbell of Alloway, has left the Chamber for a moment, but he will read Hansard. I reiterate what my noble friend Lady Scotland and I said earlier. We are, of course, more than happy to hold discussions with any Members of the Committee on any matter which troubles them. I am happy to repeat that for the purposes of the noble Lord, Lord Campbell.

I understand the point of the amendments, but if they were agreed to they would destroy the scheme of the statute. The Bill's purpose is to allow the United Kingdom to ratify the Rome Statute, but that statute does not make allowance for the discretion that the amendments offer. The statute makes it clear that states parties are expected to comply with requests for arrest and surrender. Clause 2 sets out the procedure to be followed by the Secretary of State. One needs to bear in mind the fact that Clause 2 deals with the duty on the Secretary of State, on receiving a request for arrest and surrender, to transmit the request and accompanying documents to the appropriate judicial officer. That is simply an obligation, not a discretion, to carry out that first step. The judicial officer then receives the request, and we should meet our obligations under the statute if the clause remains as it is currently drafted.

If discretion were introduced, nothing of value would be added to the Bill. The amendment would produce circumstances that were contrary to Article 89(1) of the statute, which provides that states parties "shall" comply with requests for arrest and surrender.

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It is not right for a Minister, for instance, to be able to decide to give no effect to such requests--that would be in breach of Article 89(1).

I cannot support Amendment No. 7, which is badly drafted. I realise that that is the classic departmental response, of which the noble Lord has had many more years of experience than I. However, that is not the best point to make in this context, so I put it to one side. The matter does not need to be specified in the Bill because, by virtue of Article 87 of the statute, a state party will, on ratification, designate the language in which any requests for co-operation will be provided by the ICC and the appropriate channel for the transmission of such requests. At that time, on ratification, we will make a designation that we will require requests from the ICC to be made in English and will specify the appropriate channel for such requests. We believe that the appropriate channel should be the Foreign and Commonwealth Office rather than the Home Office. It will be for the Foreign Office to pass on the request, as appropriate, to the Home Office, the Scottish Executive or any other relevant department. I assure Members of the Committee that that is the model we have used for meeting requests from the International Criminal Tribunals for Rwanda and for the former Republic of Yugoslavia, which I recently visited, and that that model has worked well.

I hope that I have met the noble Lord's concerns in my response to his amendments.

Lord Lester of Herne Hill: We on these Benches support the stance taken by the Government on this raft of amendments rather than that of the Conservative Opposition. I shall explain the underlying issues of principle in this context, which should add to the comments of the noble and learned Lord the Attorney-General.

As a matter of principle, the philosophy on which the ICC is based, as we understand it, is that that court, as the specialist expert court, should in the ordinary way have prime responsibility, acting in partnership with national courts and national governments, for dealing with the serious offences that fall under its jurisdiction. This raft of amendments, apart from being inconsistent with the statute, would fetter or add restrictions to the role of the ICC and would give more responsibility to national courts and Ministers of the Crown in the exercise of what would be a very broad discretion. With respect and in relation to the philosophy that underlies the statute and the Bill, it does not seem to us that that approach is sensible. When we later debate whether our courts should exercise universal jurisdiction, we shall look at the complementarity principle to establish the extent to which national courts, as well as the ICC, can bear some responsibility in appropriate cases and deal with the important question of gaps.

The amendments would limit the role of the ICC, and they would do so in relation to arguments that are really based on national or state sovereignty and the role of national institutions. That seems to us to be inappropriate in relation to a court of this special

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character. Indeed, when the noble and learned Lord, Lord Lloyd of Berwick, who was one of the Law Lords in the Pinochet case, spoke on Second Reading, he emphasised the importance of giving as much authority as possible to the ICC rather than leaving national courts with the sort of dilemmas that arose in the Pinochet case. Without speaking to the amendments' particularity, to the extent that they would limit those principles, we oppose them.

Lord Monson: I want to put a question to the noble and learned Lord. Let us suppose--heaven forbid--that at some time in the future civil strife in this country led to large-scale killing, torture and the general maltreatment of individuals. A few years later, when law and order had been restored, the government of this country might decide not to prosecute those involved in such crimes but to establish a truth and reconciliation commission instead. Unless the amendments are agreed to today or at a future date, that, surely, would not be possible. If that government did not want to prosecute those people, they would have to allow others to initiate prosecutions. Would that be desirable if it were against the wishes of that British government?

Lord Lamont of Lerwick: Will the noble and learned Lord confirm--I hope that he can make this absolutely clear to us laymen--that the proposal is that the issuance of a warrant will be sufficient and that no prima facie evidence of any kind will be required? Will he further confirm, following the Pinochet case and in relation to the provisions of extradition law, whether the Government undertook to re-examine whether it was right that someone might be held in this country for a long period with no prima facie evidence being offered? Is that the position under the Bill?

Lord Avebury: Will the noble and learned Lord also kindly confirm, pursuant to what the noble Lord has just said, that the position is exactly the same as that which obtains in relation to the International Criminal Tribunals for Rwanda and the former Republic of Yugoslavia, which he mentioned? Is it not important that whatever we do in this context follows exactly the same procedures? Otherwise, one would be in the very anomalous situation of being obliged to arrest and deliver up an alleged offender to the tribunals, whereas, with regard to the amendment, one would not be so obliged in relation to an offender who was wanted to appear before the ICC. That situation would plainly be grossly unsatisfactory.

Lord Hylton: I do not always agree with my noble friend Lord Monson but on this occasion I support the general thrust of his remarks. I do not doubt that the amendments in their current form are defective. Nevertheless, it is desirable that there should be just a little flexibility somewhere in the system so that, with regard to countries such as some of those in Central America and South Africa--and, conceivably, Northern Ireland in the future--there should be some

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ways and means of allowing a process of reconciliation to happen without necessarily applying the full rigour of the law.

Lord Kingsland: If I may respectfully say so, the noble Lord, Lord Lester, put his finger on the principle that lies behind the amendments. That principle will re-emerge time and again in the course of this Committee stage.

I should like to take a slightly different stance from that which the noble Lord has taken, at least on this occasion. Let us suppose that the Secretary of State is faced with a situation whereby the United Kingdom Government have taken the view, first, that there is sufficient evidence before them in the case of an individual to prosecute; secondly, they think it appropriate in all the circumstances to prosecute; and, thirdly, they have begun the process of prosecution. Let us suppose further that they are then faced with a request from the court to issue a warrant and transfer the person to The Hague. In those circumstances, surely it is right that the Secretary of State should have a discretion to continue the process in the United Kingdom and not to release the individual.

4 p.m.

Lord Williams of Mostyn: Those questions are dealt with by the discussions which we had on Second Reading. I know that the noble Lord, Lord Lester of Herne Hill, and other noble Lords joined in that discussion which was fundamentally to underline the rationale behind this Bill and it is entirely based on the principle--I am sorry to sound vaguely European--of complementarity. A number of noble Lords stressed, and my noble friend Lady Scotland and I underlined, that this is a jurisdiction to be exercised where the domestic jurisdiction is not willing and able to investigate and prosecute.

If there has been a genuine investigation and prosecution or a genuine decision not to prosecute, then, of course, the ICC does not have the appropriate jurisdiction. But that is not the reason that one needs the discretion. If the statute requires us to carry out certain acts, then this amendment puts us immediately in breach of the statute, and the whole purpose of this Bill is to give effect to the statute, as I thought everyone who spoke on Second Reading agreed was a good thing.

I shall now deal with one or two other specific matters. The noble Lord, Lord Lamont, asked about the Pinochet question. He rightly reminded us that there is a review of extradition law which was announced by the Home Secretary some time ago. But he will also recall very well the scheme of the Extradition Act, which I believe was introduced when he was a member of the government, and whether or not one needed prima facie evidence.

The statute says--I believe rightly--that when the request is made, the Secretary of State has an obligation to transmit that request to the judicial officer. If the United Kingdom is deciding--I take the

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question of the noble Lord, Lord Kingsland, as an example--whether to prosecute and at that time, when the decision is being arrived at, one receives an ICC request, if one looks at Clause 5(4), one finds an answer to at least some of his questions.

If one looks at Clause 5(4), one sees there--and this goes back to the complementarity point which the noble Lord, Lord Lester, discussed on an earlier occasion on Second Reading--that in the case of a person alleged to have committed an ICC crime, the competent court may,

    "adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC".

So I do not believe that the issues which trouble the Committee are properly based, because that is the answer to the procedure at that stage.

In respect of the question put by the noble Lord, Lord Monson, civil strife is not a clear concept but if there were an investigation going on in the United Kingdom, that would be sufficient to halt the ICC proceedings. I do not believe that modern jurisprudence should recognise a cherry-picking approach to those matters. The noble Lord, Lord Avebury, is quite right: the criminal tribunals in respect of Rwanda and the former Yugoslavia, the latter having been the tribunal where Mrs Biljana Plavsic voluntarily surrendered--in fact I was there on the very day that she pleaded not guilty to the indictment--are important tribunals to deal with matters of fundamental human rights.

There is a gap in the law at the moment. I do not think anyone doubts that. One cannot have a discretion imported in the way that the noble Lord, Lord Howell, suggested, or it may be that the noble Lord, Lord Kingsland, wishes, in those circumstances. The obligation is quite plain. It is not a discretion for the Secretary of State. If one wants to challenge the proceedings, Clause 5(4) provides the opportunity to make that challenge.

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