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Lord Williams of Mostyn: I am not sure that the latter question arises from the amendment. However, I repeat what my noble friend said. Discussions have been continuing. There seems to be no difficulty about the view of the Scottish Parliament in introducing parallel legislation.
On Amendment No. 80--I appreciate that Amendments Nos. 78 and 79 were not moved--the reason we have this designation in Scotland is the same underlying reason as in England and Wales. First, it was the model in the Extradition Act 1989. In that Act the competent court in Scotland is described as the Sheriff of Lothian and Borders.
More fundamentally, not simply that we have always done it this way, there will be a small number of cases. We think that there is virtue, as there has been with the former chief stipendiary in Bow Street, in having whatever expertise can be collected within a single court. That is the only reason for having the provision.
The Earl of Onslow: Before the noble and learned Lord sits down, perhaps he will answer this question. It goes back to what the noble Lord, Lord Monson, said. If the Scots want to pass this Bill--the noble and learned Lord says they do--why should they not say who is the appropriate officer in Scotland. The noble and learned Lord says, "They will, won't they?" That may be true. They probably will. He is very often right. But now that we have got ourselves into this delicious
devolutionary muddle, it is surely up to the Scots in passing the Act of Parliament to state who should undertake this task, not for us to do so.The noble and learned Lord has twice sloughed off the question of the noble Lord, Lord Monson. Can he please give a well thought out answer to that question? It is a serious question.
Lord Williams of Mostyn: The noble Earl asks a different question. The answer to the question of the noble Lord, Lord Monson, has been given previously by my noble friend. It remains the same. My understanding is that it is for this Parliament in this legislation to nominate the sheriff of Lothian and Borders within the Scottish jurisdiction. If I am wrong about that--I undertake to check it with some care; it is a distinct point on the amendment--I shall write to the noble Earl. Subject to my own further inquires which I shall make as soon as possible, I understand that our Scottish colleagues have already agreed that that should be the appropriate judicial officer. However, I shall check that. Whether I am right or wrong, I shall write to the noble Earl and put a copy in the Library.
Lord Monson: Does the Minister agree that the Scottish Parliament has the right not to pass a parallel Bill if for any reason it decides that it does not want to do so?
Lord Williams of Mostyn: That was implicit in the earlier answers which my colleague and I gave.
Lord Kingsland: I thank the noble and learned Lord the Attorney-General for his response. I understand the reason underlying the limitation of the definition of "appropriate judicial officer" to the sheriff of Lothian and Borders. Expertise has been built up in that court in relation to extradition matters. It seems perfectly logical that that expertise should be applied to any matter which arises under this Bill, which may become an Act.
If that is so, should not the same proposition apply with regard to English courts? I do not understand why a parallel conclusion should not have been reached in relation to the courts of England and Wales.
Lord Williams of Mostyn: It may be recalled that I dealt with this point on an earlier occasion by saying that it would either be the chief magistrate--whom the noble Lord, Lord Kingsland and I still remember as the chief metropolitan stipendiary--or, as I then indicated, district judges as designated by the Lord Chancellor, so they are likely to be few in number. If necessary that would be available in the larger jurisdiction. It is very unlikely that we would need more than the one court in Scotland.
Lord Kingsland: I am most grateful to the noble and learned Lord the Attorney-General for clarifying that matter. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howell of Guildford moved Amendment No. 82:
- After Clause 26, insert the following new clause--
(" . Nothing in the ICC Statute shall affect the responsibility of the Government to maintain or re-establish law and order in the State, or to defend the unity and territorial integrity of the State, by all legitimate means at its disposal.").
The noble Lord said: The purpose of the new clause after Clause 26 is to focus our minds on the issue of civil disorder and the means that the Government may have to use to quell civil disorder or place the country in a state of emergency. It will be important--the amendment is intended to achieve this--to ensure that the United Kingdom remains sovereign and free from any restraint or interference from the International Criminal Court. The amendment refers to "all legitimate means". That may mean--we have to accept it in a difficult world--in the United Kingdom of Great Britain and Northern Ireland the use of force. It is important to ensure that the ICC could not begin an investigation, raise charges or issue warrants to prosecute service personnel who had been engaged in those activities. That issue could be raised by the present wording of the Bill. We have tabled the amendment to avoid any doubt and to ensure that the internal problems of this nation are the preserve of the state.
We have rightly been reminded several times that the jurisdiction is not retrospective, but we can proceed only on examples of what has happened to try to understand how the legislation will work. The current inquiry into the events of Bloody Sunday in 1972 in Northern Ireland is revealing various new facts and aspects. It could conclude that no further action is justified and that all the truth, rumours and legends have come out. Our Government would then decide that that was the end of the matter. Could the International Criminal Court then step in on such a matter of civil order and pursue the investigations on the grounds that they had not been dealt with thoroughly enough? The amendment would ensure that should another such event occur--we pray to God that it does not--and should the animosities, miseries and hatreds of that event be perpetuated, the Government would be within their rights in maintaining and establishing law and order throughout the United Kingdom. I beg to move.
5.30 p.m.
Lord Williams of Mostyn: Again, I am grateful to the noble Lord for indicating the nature of his concern. I hope that I can reassure him. Article 8.3, which is on page 11 of my copy of the statute, says:
- "Nothing in paragraphs 2(c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means".
Lord Howell of Guildford: The noble and learned Lord says that he is happy with the reassurance, but I do not suppose, by any chance, that he is telling me that he is happy with the amendment. Presumably he believes that it is not necessary.
There is a general point to be made, almost in passing. Certain things can be interpreted from reading the statute. Our purpose is to put them on to the statute book of the United Kingdom. My argument is that the more clarity and reassurance we put into our legislation, the less we might be left arguing later about what the statute really meant and why the provision was not in our legislation. However, I accept the Attorney-General's reassurance that the issue is dealt with in the statute. When we deal with such matters in future, we shall have to remember that this exchange has taken place and that what is in the statute is intended to be relevant to our law. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Rights of persons during investigation: article 55]:
Lord Howell of Guildford moved Amendment No. 83:
- Page 48, line 11, at end insert--
The noble Lord said: All the amendments in this group are concerned with one important issue--that the Act shall ensure that all the rights, protections and privileges that would be afforded by English law shall be afforded to persons from this country delivered up to the ICC. They should receive the same protection as they would if they were on trial in England or Wales.
Amendment No. 83 concentrates on the specific right of additional protection for all those involved in the investigation process by ensuring that a waiver of the person's rights to have counsel present would not be effective unless granted in writing and properly witnessed. That point was put forward by the Law Society of Scotland.
The other amendments raise broader questions. Our aim in Amendment No. 85 is to ensure that the rights of persons during an investigation are preserved as they would be if they were being tried in a domestic court in the United Kingdom. I accept that there is a difficulty. We are dealing with an ambience of international justice. The International Criminal Court is an international body and it will have its own procedures. The notion that it can provide for citizens of individual states the protection that their national law would give them on a criminal charge may be regarded as idealistic, but it is a worthy ideal that we should pursue as effectively as we can.
As has been said in earlier debates, this is the problem that has caused the United States Federal Government and Congress such enormous difficulty. It is one of the chief reasons why, although the United States has signed, it does not intend to ratify the ICC
One of the overall aims of the project is to bring the United States along. Those who founded the project and have worked so hard on it over the years--some of whom are sitting in your Lordships' House at the moment--must recognise that if the court cannot bring the United States on board, its credibility will be severely affected. Conversely, if the United States can be persuaded to take a constructive role in the assembly and to work for the necessary further changes--and even to wait the seven years until the statute may be formally amended--the project will be much further forward. The amendment would serve the higher purpose of making the project a success.
I should be glad if the noble and learned Lord could define what is being imposed on the English citizen and what rights are not underpinned by the Bill in its present form. That needs to be clarified. The amendment would at least address the United States' problem. It would enable any future Secretary of State faced with an ICC request relating to a US citizen to ensure that that person would at least have their basic US rights guaranteed before they were handed over to the International Criminal Court. That might make a difference, although it will be very uphill work with the United States whatever we do.
The same point is made in Amendment No. 86. A person subject to ICC proceedings should have no fewer rights than those that would be available to him or her in his or her home state. Those rights can be established by expert evidence. We attach specific importance to the possibility of an American being detained under an ICC warrant while in the United Kingdom. That is perfectly possible.
That provides enough detail to establish our reasons for tabling the amendments. I beg to move.
(" . Any waiver of rights under paragraph 2 above shall be documented in writing by that person and witnessed by an independent person.").
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