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Lord Williams of Mostyn: I believe that I can demonstrate that the safeguards which troubled the noble Lord are provided satisfactorily either in the statute or in the Rules of Procedure and Evidence.
Schedule 3 to the Bill reproduces Article 55 of the Rome Statute. That article sets out in detail the rights of persons during investigations. The persons concerned cannot be questioned until they have been informed of their rights under Article 55 and have consented to interview. Such consent must be either in writing or, if given orally, recorded in writing. Therefore, the element of consent to interview is important.
As I said, the written waiver requirement is provided for in the Rules of Procedure and Evidence of the ICC--in Rule 112(b). Those rules are in final form, subject to adoption by the first Assembly of States parties. I have no doubt that the consent provisions in the Bill and in the rules of procedure give full safeguards to a person being interviewed--not least, for example, the right to counsel.
With regard to Amendments Nos. 84 and 85, I believe that the rights are fully provided for. The right relating to, for example, the presumption of innocence is found in Article 66 of the statute. The right not to be tried twice for the same offence is in Article 20. The right to a trial in public is in Article 67, as are the rights to cross-examine witnesses, to representation by counsel of the person's choosing without payment, and--I must be careful about this--to remain silent without the drawing of adverse inferences from such silence. Therefore, I do not believe that it could be said that any fewer rights would be provided than those which apply in domestic tribunals here.
I have mentioned before but believe that it may be convenient to refer again to the right to assistance, free of cost, of a competent interpreter and translation in any of the proceedings. English will be one of the two working languages of the ICC. Having signed up to the statute, I do not believe that we should try unilaterally to impose obligations on the ICC and to impose conditions on co-operation.
Perhaps I may turn to Amendment No. 86. Clause 29(4) goes no further than existing domestic legislation, which allows us to assist other countries in requests for evidence. It reflects the provisions of Schedule 1 to the Criminal Justice (International Co-operation) Act 1990, which does not distinguish between persons on nationality alone. This amendment would have the effect of giving our courts lesser powers for obtaining evidence than they have in relation to domestic cases before them. Therefore, it would mean that in some cases a duality of approach would arise.
If one traces the matter through--I agree that one must trace it quite carefully through the statute and the Rules of Procedure and Evidence--I do not believe that the concerns expressed by the noble Lord are well founded. I do not believe that any disadvantage arises.
I am not sure whether the noble Lord wanted to speak to Amendment No. 87, which was originally placed in this group. There are so many in the same grouping. Amendment No. 87 relates to costs. I do not know whether the noble Lord wishes to speak to it in this grouping or later.
Lord Howell of Guildford: I thank the noble and learned Lord. I overlooked that final amendment. In a sense, it relates to a specific right. The amendment is put forward in the belief that there is no justification for precluding a costs order in favour of a person ordered to produce under the section. That is the belief behind the amendment.
Lord Williams of Mostyn: It may be helpful if I respond to Amendment No. 87 at this stage. Again, subsection (6) is based on Schedule 1 to the Act to which I referred earlier, the Criminal Justice (International Co-operation) Act. We do not believe that the amendment is necessary. It would increase the likelihood of the domestic taxpayer meeting the costs of these cases.
If an order for costs were to be made, one of the parties would be the government acting on behalf of the ICC. We could not then pass on the costs to the ICC because Article 100 of the statute provides that the costs of the execution of requests in the territory of the requested state shall be met by that state, apart from a few exceptions which do not involve this type of assistance. Therefore, any costs would have to be met by our public purse. We do not consider the amendment to be necessary.
5.45 p.m.
Lord Lamont of Lerwick: Perhaps I may ask the noble and learned Lord a question relating to a matter touched on by my noble friend on the Front Bench. It may save time if I refer to it now rather than during the debate on whether the schedule shall stand part. It is the question of retrospection. As my noble friend referred to the provision not being retrospective, can the Minister comment on that? Can he also give us an absolutely copper-bottomed assurance--in so far as a Minister's assurance on such a matter can hold water--that the Bill definitely would not be retrospective?
I say that because I was puzzled by an issue which arose in the recent case relating to Senator Pinochet. I checked in Hansard and found that when the torture convention was introduced in, I believe, 1987 or 1988 by my noble friend Lord Patten, it was stated unequivocally in the House of Commons that the legislation was not retrospective. Yet, I was puzzled that it took until the third hearing of the Law Lords on a seven-to-two judgment before allegations relating to pre-1988 were ruled out of order. If the matter was so crystal clear, one would have thought that it would have been obvious to the Law Lords who ruled in the previous judgment. Therefore, I am sceptical and anxious about the assurances that have been given that what is being proposed in this Bill is not, and could not in any circumstances be, retrospective.
Lord Williams of Mostyn: I am happy to give that assurance.
Lord Howell of Guildford: The noble and learned Lord also reassured us that the rights of people who are delivered up to the International Criminal Court will be secured. He went through in considerable detail a list of the rights which would be secured. In this type of exchange, one must remember that whatever reassurances we may give or receive here, a problem exists in the minds of many very senior figures in the United States. In their Congress, in parts of their legal system--although I see that the American Bar Association has taken a less stringent view--and certainly in political and presidential circles there is a conviction that the constitution of the United States provides rights which will not be provided by what will be a foreign court.
I notice one right on our list that the noble and learned Lord did not enumerate, and I understand exactly why--because it may be an impossible demand. It is that there will be a right to trial by jury.
Can one imagine trying to piece together a jury structure for the International Criminal Court? I believe that enormous difficulties would arise in that regard. Of course, the rights listed in our amendments are not comprehensive; there are others.Therefore, given the binding fact that the statute has been signed, this exchange leaves one uneasy as to whether we have done all that we can. Whether it was right to have signed up to the statute in its present form is another matter outside the purview of this debate. However, the question arises as to whether we are doing all that we can to ensure that every possible right is secured and, in doing so, to open the way for the United States to see its way to accede to and ratify the statute.
In this debate we have talked a great deal about models and examples. As well as the models and examples which we hope will influence other countries with less high traditions of democracy and less routine and strict adherence to the rule of law, perhaps we should consider models and examples which will make the project work and bring along the most powerful nation on earth. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 84 and 85 not moved.
Clause 29 [Taking or production of evidence]:
[Amendments Nos. 86 and 87 not moved.]
Clause 30 [Taking or production of evidence: further provisions]:
Lord Kingsland moved Amendment No. 88:
- Page 15, line 37, leave out ("sensitive").
The noble Lord said: Clause 29 concerns the taking or production of evidence. It applies where the Secretary of State receives a request from the International Criminal Court for assistance in the taking or production of evidence in the United Kingdom. Clause 30, to which Amendment No. 88 applies, deals with provisions in relation to proceedings before a nominated court in the United Kingdom, that is to say a court nominated under Clause 29.
Under Clause 30, the Bill provides that a court nominated under Clause 29 can sit in private, if it considers it necessary, in order to protect victims, witnesses or suspects, or to protect confidential or sensitive information. The clause is in line with Article 64.7 of the Rome Statute under which the International Criminal Court can decide to sit in closed session.
The purpose of the amendment is to test the Government's view as to what categories of evidence they feel might fall within the expression "sensitive". It is easy to see why confidential information should form part of Clause 30, and admirable that victims and witnesses, or a person alleged to have committed an
ICC crime, should in certain circumstances be protected. But why do we need this wide category of "sensitive"?
It is an important principle of court proceedings in our country that they be held in public. It is only in exceptional circumstances that that principle is not respected. If it is not to be respected, in our submission that should be so only in specific circumstances. We believe that those circumstance should be set out on the face of the Bill. Perhaps I may ask the noble and learned Lord the Attorney-General to react to that thought. I beg to move.
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