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Lord Avebury: There is a preliminary issue to be dealt with; namely, how the allegation that the person's rights have not been respected can be brought before the court. Such a declaration cannot be made under Clause 5(6)(b) if the court does not know that the person alleges infringement of his rights. The individual must have a mechanism by which to do that. As my noble friend explains, that matter cannot be dealt with under habeas corpus. Therefore, judicial review is a necessary mechanism by which the matter can be brought before the court.
Lord Williams of Mostyn: I believe that the noble Lord mistakes the position. If that point is asserted by the accused (if I may so describe him for present purposes) it can be dealt with before the competent court. The accused can allege that his arrest is unlawful or that his rights have not been respected. Therefore, the question raised by the noble Lord, Lord Avebury, in relation to Article 59(2)(c) is answered by Clause 5(6).
The related question put by the noble Lord, Lord Kingsland, is: what would be the expected consequence in the ICC following onward transmission of that conclusion by the Secretary of State? It seems to me that a variety of consequences may follow. The notification of itself would put the ICC prosecutor on the alert. If he decided to proceed the ICC would consider the matter. Depending on the nature of the lack of respect for the accused's rights, it might easily conclude that it would not be right or appropriate to continue with the prosecution. That is
Lord Kingsland: The noble Lord again gives way to my intervention. If the noble and learned Lord the Attorney-General turns to Clause 5(4), does he foresee circumstances in which the responsible authority in the United Kingdom would inform the ICC that there has been a breach of an individual's rights and that that affects the admissibility of the case?
Lord Williams of Mostyn: As I read Clause 5(4), that would be a matter for the competent court itself. The necessary pre-condition to going to the ICC to argue admissibility is that the competent court should adjourn. If it is persuaded to adjourn, it is for the ICC, the prosecutor and the accused's representatives to decide whether to take that avenue. I believe that the answer to the specific question as to what happens following notification is that the delivery order is made under Clause 5(6) and thereafter the prosecutor and the ICC decide whether the interference with rights is such as to pollute the proceedings.
The noble Lord, Lord Lester of Herne Hill, asked whether one could have judicial review as well as habeas corpus. The noble Lord is aware of the argument about the Bowman review, with which he may not be over-impressed. That is the argument that I would have put, but I do not repeat it bearing in mind its lack of success in correspondence. But the fundamental question is: what are the issues properly to be determined on this occasion? Those issues are quite limited: first, whether the warrant is duly issued or endorsed under Clause 2; secondly, whether the person before the court is the person named in the warrant. Those questions fall entirely within the ambit of habeas corpus. I believe that this is a proper scheme legitimately to safeguard those rights. It does not remove the opportunity to try to get the competent court to find that the person's rights have not been respected.
The noble Lord, Lord Lester, has chided others--perhaps not me--about the doctrine of unripe time. We do not wish to include judicial review pending any determination of the wider ramifications. I shall think about the matter. It may be helpful if I say to Members of the Committee interested in this particular aspect that even if I cannot go so far as the noble Lord, Lord Lester, wants, I shall consider matters. I am trying to be helpful but also trying to keep the scheme of the Bill and the aims we are looking to. It is possible, I suppose, that we could consider judicial review if it were for the determination of rights point and the remedy was simply limited to declaration. What I want to avoid is endless preliminary skirmishing--with
Lord Lester of Herne Hill: Before the noble and learned Lord sits down so that I can reply, can I clarify one matter with him? He is quite right; the last thing I want is to have preliminary skirmishes of the kind he referred to. Am I not right that the problem of the writ of habeas corpus is that it does not deal with any question other than the legality of the detention? One's rights are determined if one gets a release with a writ of habeas corpus; it is determined that one has been unlawfully detained. But if, on the other hand, some other relevant fundamental right has been breached, does he agree that the writ of habeas corpus cannot provide an effective remedy by way of a judicial determination--a non-binding determination because it is only a declaration--reasoned and able then to be sent on to the International Criminal Court? Does he agree that, leaving aside the solution to the problem, that is the problem with confining the issue to a writ of habeas corpus?
Lord Williams of Mostyn: I understand that is one aspect which troubles the noble Lord. But it is for the competent court to come to the decision about respect or not of rights. He knows as well as I do that a judicial review is not an appeal on the merits, it is only an appeal on, as it were, the structures of the decision-making. I am putting the issue in terrible shorthand and not in ordinary language. I shall think about this matter. I am more than happy to discuss matters with noble Lords. But I stress that this is a genuinely open-minded suggestion. I am not making any commitment because I am not in a position to do so.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Attorney-General for the generosity and open-mindedness of his and his colleagues' approach to the problem. It is now well-established that, for example, one cannot use habeas corpus to complain about conditions of detention, as distinct from the legality of detention.
There was the famous and very frank American case of Herbage where he was detained in Brixton and was too large for his cell. He tried to use habeas corpus. So his fundamental right not to be subjected to inhuman and degrading treatment was breached under Article 3 of the convention. In the end the courts came to the conclusion that habeas corpus was the wrong remedy and that judicial review was the right one.
I am entirely content with an approach which confines the remedy to a purely declaratory remedy and which does not widen the scope of judicial review beyond a remedial order that can be transmitted to the International Criminal Court that the determination of the national court is that the individual's rights have not been respected. That is all I seek. Having heard the noble and learned Lord, I am sure that the right
Amendment No. 65 seeks to make clear that Clause 16(1)(b) applies only in England and Wales because bail operates in a different way in England and Wales than in Scotland. In Scotland a person is not "remanded on bail" but is granted bail. There are other considerations behind that.
Amendment No. 66 intends to enable a court in Scotland to grant bail on the standard conditions or, if appropriate, on special conditions if the circumstances of the case so demand. The amendment seeks to ensure that the bail provisions of the Bill are in conformity with the bail provisions contained in Section 24 of the Criminal Procedure (Scotland) Act 1995.
Amendment No. 70 provides that the person applying for bail shall receive intimation of the International Criminal Court's recommendations and be given an opportunity to address the points made. The thought behind the amendment is that Clause 18(1)(c) states that,
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