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Earl Attlee: When we are negotiating the rules and procedures, what kind of negotiating clout does the noble and learned Lord enjoy? Does he have a veto, or does majority voting apply?

Lord Williams of Mostyn: It is a great sadness to me that the noble Lord, Lord Pearson of Rannoch, is not sitting behind the noble Lord, Lord Lamont, on this occasion. It is not a question of majority voting. I anticipate that a consensus will emerge. My guess is that 60 days will be about the period--in exactly the same way that one hascustody limits in Scotland and custody limits in England and Wales in serious cases. They tend to work quite well. One needs a decent balance between the legitimate public interest in successful prosecution and the legitimate individual interest that someone is not kept unduly long in a state of limbo.

Lord Kingsland: I thank the noble and learned Lord for that reply. He will not be surprised to hear that I am by no means entirely satisfied with his responses. Nevertheless, he has generously suggested that it is a matter that he might like to take up between Committee and Report stage. In those circumstances, it would be churlish of me to press the matter today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 20 not moved.]

Clause 4 agreed to.

Clause 5 [Proceedings for delivery order]:

Lord Howell of Guildford moved Amendment No. 21:

Page 3, line 28, after ("court") insert (", or courts-martial in the case of service personnel,").

The noble Lord said: Amendment No. 21 is similar in kind to Amendment No. 14. I suspect that the noble and learned Lord's response to it will be similar. We are dealing here with persons arrested under warrant. The clause provides for the person to be held on remand pending the production of a warrant. As the clause stands, where no warrant is forthcoming, a civilian court issues a remand pending the production of such a warrant. The amendment is directed at service personnel. It seems to us unfair that the court martial should not be the route for such persons, as that is the best place--I fully accept that a court martial is not a permanent structure--to deal with a particular matter arising from an investigation, charge, warrant and so on--the entire procedure as instigated by the International Criminal Court.

The amendment ensures that service personnel are protected by appearing before a court martial, which would understand the issues best. I emphasise that I am dealing here with procedures. I was tempted by the

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question of the noble Lord, Lord Avebury, to get into the matter of crimes and their definition, which of course we shall be discussing later on.

Lord Goodhart: With respect to the noble Lord, will he explain what the issues are? If the issues are as they seem to me to be--only those which are specified in Clause 5(2)--I see no reason why a court martial should be in any sense a more suitable court to decide them than an ordinary court. If the noble Lord is suggesting that the court martial is a suitable court because it would be able to look into the merits of the matter, then is he not raising issues which go entirely against the pattern of the Rome statute?

5.15 p.m.

Lord Howell of Guildford: No, I am dealing with procedures here as they affect service personnel. I suggest that, in the case of service personnel, the kind of procedure outlined in this amendment would help to provide one of the assurances which needs to be given--if we are to have an effective court--to those in our armed services who have expressed fears which I should like to see laid to rest; namely, that such personnel may become the targets of vexatious, politically motivated or score settling charges instigated by the views of others who may have strong reasons for believing that certain crimes are war crimes. This amendment attempts in part to meet those concerns. I believe that this is a genuine attempt to reach a resolution of this problem. I beg to move.

Lord Avebury: It seems to me that the noble Lord, Lord Howell, has based this amendment on a total misconception of what happens at this stage in the proceedings. The ingredients of the offence will not be examined by the competent court. All that it has to do is to satisfy itself that the warrant is one that has been produced by the ICC, that has been duly issued under Clause 2(4) and that the person brought before the court is the person named or described in the warrant.

The issue to which the noble Lord refers--namely, whether a particular event should be classed as a war crime--is something which would not come into the picture. At that stage the competent court would not have to examine that issue. That is reserved for the International Criminal Court when the individual who is the subject of the warrant ultimately appears before that court. At this stage the issue is one purely of procedure; namely, whether the requirements specified in Clause 2(4) have been complied with fully. I cannot see the merit of the noble Lord's argument.

Lord Williams of Mostyn: I understand the reasons why the noble Lord, Lord Howell, has raised this question and I join with him in his wish to lay to rest any fears which are not justified. The way to do that is to progress along the route suggested by the noble Lords, Lord Goodhart and Lord Avebury; namely, to focus on the text and the context that is relevant here.

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The amendment seeks to insert after "a competent court" the words,

"or courts-martial in the case of service personnel".

This would give service personnel a different venue. A "competent court" is defined designedly in Clause 26 on page 14 of the Bill. A "competent court" means a court consisting of an appropriate judicial officer. That would be the senior district judge, whom we always used to refer to as the "chief stipendiary at Bow Street" or a district judge--formerly a stipendiary--designated by the Lord Chancellor or, north of the Border, the sheriff of Lothian and the Borders. Those courts comprise the "competent court".

The noble Lords were right to point out that on this occasion all the court has to do, according to the provisions of Clause 5(2), is to satisfy itself,

"(a) that the warrant--

(i) is a warrant of the ICC and has been duly endorsed under section 2(3), or

(ii) has been duly issued under section 2(4), and

(b) that the person brought before the court is the person named or described in the warrant,

it shall make a delivery order".

That is a very limited function indeed.

As regards the identity of the defendant, I shall say quite carefully that that is not relevant in this particular context. It would not matter if he was a field marshal or a police constable. Both are serving in disciplined services. The police officer would probably be dealt with at Bow Street, while the sergeant-major, major or major-general would also be dealt with in the same tribunal but only on the limited basis set out in Clause 5(2). Courts martial do not even exist until a convening order has been signed. One would not want a court martial to be convened on an order simply to deal with such limited matters.

I hope that this has been helpful. If fears have been expressed, then I entirely accept them. I hope that I have been able to lay those fears to rest. The jurisdiction of the competent court is limited in the extreme here. It would not be entitled to go into the wider issues that the noble Lord had in mind.

Lord Howell of Guildford: I see that, under the Bill as drafted, the delivery court will operate on tramlines, within an extremely limited range. It is required to satisfy itself on only a limited number of matters set out in Clause 5(2). For that reason, I accept the point made by the noble and learned Lord. A court martial called together for the purpose could not do anything different.

There remains, however, the serving man's and serving woman's perspective, which we should respect. If they were to be caught up in these processes in a manner where there was room for doubt--we cannot always assume clarity in such circumstances--they would expect to appear before military courts at all stages of the process. That expectation will not be met in this case. It may be that the expectation is naive, given that the court cannot do very much. Nevertheless, the expectation is there and I believe that we must move gingerly and carefully before

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discounting it and pushing it to one side. However, I accept the force of the argument put forward by the noble and learned Lord in the context of this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 22:

Page 3, line 28, leave out ("as soon as is practicable") and insert ("not later than the first day after the person has been taken into custody, such day not being a Saturday, Sunday or court holiday").

The noble Lord said: I rise to move Amendment No. 22 and to endeavour to speak to Amendments Nos. 23, 25 to 28, 30, 31, 32, 33 and 35.

Noble Lords will see at a glance that the text of Amendment No. 22 is identical to the text of Amendment No. 15. I have already spoken to that amendment and the noble and learned Lord the Attorney-General has already replied to it. For that reason, I have no need to repeat what I have said and I do not think that he will need to repeat his words either. The point has been taken and we shall await the Report stage.

In a sense, Amendment No. 23 deals with a similar issue. In our view, there is no justification for detention other than within a fixed time period. The noble and learned Lord adverted at least in part to that general point in his previous reply.

So far as concerns Amendments Nos. 25 to 28, the issue here is that in the event of a challenge, what justification can be put forward for remanding a defendant in custody for an indefinite period? Perhaps I may pause at this point and ask a question of the noble and learned Lord. I believe that one of these amendments has been declared inadmissible. Am I right in thinking that it is Amendment No. 30?

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