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Lord Williams of Mostyn: I believe that it is Amendment No. 30A.
Lord Kingsland: That is one of my amendments. As regards Amendment No. 30, we submit that the present text cannot be compatible with rights protected under the Human Rights Act 1998. The statute does not specify which rights must be respected. It does not say what would happen if a domestic court determines a violation of Clause 5(b) or (c). It then follows that, even if a warrant for arrest is irregular, wrong in law or factually flawed, the United Kingdom Government would not be able to do anything about those breaches other than to surrender the suspect. In those circumstances, for example, a British citizen who is a member of the Armed Forces will have no rights.
As to Amendments Nos. 31, 33 and 35, again the point is that the rights of the citizen should be clearly set out in the legislation and properly defined in the Act. That does not appear to be the case. I beg to move.
Lord Lamont of Lerwick: I support my honourable friend on Amendment No. 30.
A noble Lord: Your noble friend.
Lord Lamont of Lerwick: My noble friend. We must get these things right, must we not? We must not concentrate on the substance; we must concentrate on the form. That is the important thing in this House, to concentrate on the form.
Lord Williams of Mostyn: We can do both.
Lord Lamont of Lerwick: We can do both, but that is beyond some of us.
I support Amendment No. 30, which seeks to leave out subsections (5) and (6). It seems to me a somewhat strange provision that, under Article 59.4, it is not open to a domestic court to consider whether the warrant of arrest was properly issued by the International Criminal Court. This means, presumably, that the International Criminal Court alone can judge whether the warrant that it issued is valid. One may have doubts about whether this will be impartially applied--because of the eagerness of the court to demonstrate success; the eagerness of the court to have a trial; the eagerness of the court to satisfy political pride--and it would surely be better if another court was able at least to give a preliminary judgment as to whether the warrant had been properly issued. It seems unsatisfactory that the court which issued the warrant should decide whether the warrant was properly issued.
For that slightly different reason I am concerned about this provision. I support the line taken by my noble friend on the Front Bench.
Lord Lester of Herne Hill: Perhaps I may say a few words about how I understand the matter. What I say now will, in a way, presage what I shall say later on Amendments Nos. 56, 57, 59 and 60, which concern habeas corpus and judicial review.
My understanding is that the provision works in this way. Under Article 59.2 of the ICC statute,
- "A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that state"--
- "that:
- "(a) The warrant applies to that person;
- "(b) The person has been arrested in accordance with the proper process; and
- "(c) The person's rights have been respected".
That is translated into English law, as it were, at two stages in the Bill. First, the judicial officer under Clause 2, which we have debated, has to be satisfied of a number of matters. Under Clause 5(6)(b), the
competent court has to be satisfied that the person's rights have been respected. If the competent English court decides that the person's rights have not been respected, it notifies the Minister and the Minister has to transmit that notification to the ICC.So there is built into these procedures the notion that the English court determines whether rights have been respected as a matter of English law--which, in answer to the noble Lord, Lord Kingsland, includes the Human Rights Act 1998, and, therefore, the European Convention on Human Rights. When the English court has made that decision, the matter is transferred to the International Criminal Court, which has the ultimate responsibility for deciding what is to be done about it. That court is, of course, bound by international human rights law in all kinds of ways under the relevant chapter of the ICC statute.
The only gap that I can see in this partnership is purely technical and procedural--I shall come to it later--and concerns the limited remedy of the ancient writ of habeas corpus, which I think does not go far enough. That is how I understand the position. I shall now probably be told that I am wrong by the noble and learned Lord the Attorney-General.
Lord Williams of Mostyn: These amendments fall into two categories. The noble Lord, Lord Kingsland, generously said that, in respect of most of them, we have gone over the ground because they are consequential. The issue focuses essentially on Amendments Nos. 30 and 31, a theme also developed by the noble Lord, Lord Lamont.
We must bear in mind--I am sorry to repeat this--that the purpose of the Bill is to give effect to the statute. The noble Lord was quite right to draw our attention to Article 59.4 of the statute. It states, quite unambiguously, in the final paragraph:
- "It shall not be open to the competent authority"--
- "of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1(a) and (b)".
Clause 5 is designed to implement Article 59. The noble Lord, Lord Lester of Herne Hill, is right, Article 59 requires the competent court--that is, the domestic court--to determine whether the rights of a person arrested have been respected. What it does not do is specify what should be the consequence of a determination that a person's rights have not been respected. That is the gap in the statute which the noble Lord identified.
We have therefore introduced the safeguard that if the competent court comes to the conclusion that there was not a lawful arrest in pursuance of the warrant, or if there was a non-respecting of the person's rights, the court is obliged to notify the Secretary of State. Having received that notification, the Secretary of State is obliged to transmit it to the ICC.
There is a good reason for that. It would be quite easy for a state unwilling, for ignoble purpose, to surrender a particular individual, simply to violate his rights or secure a compliant court to make such a determination. We think, as a matter of principle, that it is right that the competent domestic court should have that duty; that it is right, as a matter of principle, that the Secretary of State should have the consequent duty. Thereafter it is a matter for the ICC to decide, on the usual grounds, whether the abuse of process is so grave that to proceed with a trial would go against the interests of justice.
That is a perfect mirror, I submit, of what obtains domestically now. If I say "My rights have been interfered with. There has been an undue delay. I cannot have a fair trial", then commonly now--I almost said regularly, but certainly frequently--domestic courts, the Crown Court, will say "To continue with this prosecution is abusive because it is against the interests of justice. Your rights have been interfered with". But it is the trial court--or potentially the trial court--which comes to that conclusion.
I know that some Members of the Committee may not be full of enthusiasm for some international courts, but in the International Criminal Tribunal for Rwanda--to take up an earlier theme--there was every pressure to secure convictions. It was found that the abuse of process was so grave in the Barayagwiza case that it was decided that it would not be right to continue. There is the alternative under Article 85: the ICC can award compensation to persons subject to unlawful arrest or detention. Similarly, domestic remedies remain available. If an official has been responsible for a serious violation of a person's rights, he may be open to criminal prosecution, or indeed there may be a right to damages.
It is a difficult balance. There is no doubt that we are in new waters. However, if one rationalises the situation in that way, the true venue for determining abuse of process, which is what this would be, is the trial court. I believe that the ICC will be fair and that it will be competent to come to those conclusions. I have spent a little time on this because it is a legitimate question; and, following the gracious invitation from the noble Lord, Lord Kingsland, I have spent no time at all on the earlier matters which we have already gone over.
5.30 p.m.
Lord Kingsland: I thank the noble and learned Lord for his reply. I accept in part what he says, because in a sense it is ground that he has already gone over. I should like to reflect on his reaction to what my noble friend Lord Lamont said in support of my opening remarks. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 24:
- Page 3, line 35, at end insert (", and
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