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Lord Howell of Guildford: We have already indicated in earlier debate that we are not very happy with paragraphs 9 or 10. If, however, these provisions are to be part of the Bill the tidying-up amendments just spoken to improve the drafting. In the light of that, we do not seek to oppose them.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 100 to 102:

    Page 57, line 30, after ("order") insert (", or an order having the like effect in Scotland,").

    Page 58, line 16, after ("order") insert (", or an order having the like effect in Scotland,").

On Question, amendments agreed to.

On Question, Whether Schedule 6, as amended, shall stand part of the Bill?

Lord Lamont of Lerwick: Schedule 6 is related to Schedule 5. Schedule 5 is concerned with the investigation of the proceeds of ICC crime, and Schedule 6 is about freezing orders in respect of property that is liable to forfeiture. Can one take it that freezing orders can be applied only in respect of ICC crimes, or is it possible for the court to issue a general freezing order just to exert pressure on somebody, which would seem to be more questionable and a far wider practice? Is it limited simply to freezing what are alleged to be the proceeds of ICC crime?

Lord Williams of Mostyn: As the noble Lord pointed out, the schedule is designed to enable the freezing of property at the request of the ICC with a view to eventual forfeiture. He asked the question: must the property in question relate to ICC crimes or can it be a general freezing order, either to cast the net wider or perhaps to maintain improper pressure? The answer is that it relates only to ICC crimes.

Schedule 6, as amended, agreed to.

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Clause 39 [Production or disclosure prejudicial to national security]:

Lord Kingsland moved Amendment No. 103:

    Page 18, line 11, at end insert ("save in so far as such production or disclosure is reasonably required to ensure the protection of the rights of the subject of the ICC proceedings").

The noble Lord said: Clause 39(1) of the Bill states:

    "Nothing in any of the provisions of this Part, or any corresponding provision of an Act of the Scottish Parliament, requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of the United Kingdom".

Amendment No. 103 seeks to add to the end of that expression,

    "save in so far as such production or disclosure is reasonably required to ensure the protection of the rights of the subject of the ICC proceedings".

In other words, we wish to put the authorities to their election; either they disclose the information to the extent that is required to ensure the protection of the rights of an individual--or, if they do not produce the information to the extent necessary, they will not succeed. I beg to move.

Lord Williams of Mostyn: I understand the motive. It is a perfectly honourable one because it is designed to protect the rights of an individual coming to trial at the ICC. I must reserve the right to protect the national security of the United Kingdom. There is that dilemma. In Article 72, which deals with all these matters, it is fairly met. Article 72.5 states:

    "If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:

    (a) Modification or clarification of the request;

    (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;

    (c) Obtaining the information or evidence from a different source or in a different form;"--

those words are very important--

    "or; (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules".

I hope that I can fairly paraphrase Article 72.6. It says that once all reasonable steps have been taken and there are no means in the state's view under which the information or documents could be provided, it shall notify the prosecutor or the court of the specific reasons for its decision unless a specific description of the reasons would itself necessarily result in such prejudice to the state's national security interests.

I know a smile appears. It sounds like George Orwell until one takes a minute or two to look at it. Everyone who has had to deal with a matter of this kind knows perfectly well that sometimes you cannot say why you cannot say, because if you did say why you cannot say, people would work it out. It is called

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the "jigsaw effect". It is a perfectly easy technique which can be adopted by those who wish us no good. So I have responded to the smiles. I have smiled in that way before. But on some occasions it is legitimate to be as cautious as this. Article 72.7 states,

    "Thereafter, if the court determines that the evidence is relevant and necessary for the establishment of guilt or innocence of the accused"--

it can take all kinds of different steps as are appropriate, including making inferences. If one goes through all that procedure, I respectfully suggest that it is significant tender care for the interests of the defendant as opposed to the legitimate interests the state may have--not always--when national security assertions are raised. I hope that the noble Lord, Lord Kingsland, will be able to agree with me that those Article 72 protections meet his reasonable concern. They are set out in very full detail and require a good deal of thought, check and counter-check and balance and counter-balance.

Lord Kingsland: I am much obliged to the noble and learned Lord the Attorney-General for his helpful response. Does he agree that, in the circumstances, it is appropriate to have an express reference in Clause 39(1) to Article 72?

Lord Williams of Mostyn: I do not believe so, otherwise, on every occasion one will have references. The Bill as it stands is perfectly simple to follow. One then looks at how the matter will be dealt with in the ICC.

Lord Kingsland: I hear what the noble and learned Lord says. But this is not any old matter in the Bill; this is one of the most crucial clauses in the Bill. It deals with the rights of the individual confronted by the so-called interests of the state. In the circumstances, it is particularly appropriate for the rights of the individual to be spelt out on the face of the Bill, or, at least, to be easily accessible to someone reading the Bill.

Lord Williams of Mostyn: I do not think it should be on the face of the Bill. I believe it is in its proper place. I take the point that if there is a post-legislative explanatory memorandum, or if there are some materials to be provided, this would be a useful reference to go into any such explanatory material that comes out after the Bill is passed. But one does not need to incorporate Article 72 onto the face of the Bill. Anyway, that has not been the scheme of the Bill.

Lord Kingsland: I do not want to prolong this matter. It may be appropriate for us to return to it on Report. I was not suggesting that the whole of the article should be on the face of the Bill, merely that reference should be made to it. For example, reference has been made to the rules of procedure. Under Clause 3 of the Bill, which deals with provisional warrants, there is an example of an ICC document expressly mentioned. Here is another opportunity for the noble and learned Lord to follow a similar precedent.

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Lord Williams of Mostyn: I take the noble Lord's point. He has caught me on that one.

Lord Kingsland: On that very satisfactory note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clauses 40 to 42 agreed to.

Schedule 7 [Domestic provisions not applicable to ICC prisoners]:

Lord Howell of Guildford moved Amendment No. 104:

    Page 60, line 44, at end insert--

("( ) Notwithstanding anything in the preceding sections, a person convicted by the ICC and serving his sentence in the United Kingdom shall serve a sentence which is no longer than the maximum for that offence in the United Kingdom, and shall be subject to the same rules on parole, remission, credit for time served on remand and early release as other serving prisoners who are United Kingdom nationals.").

The noble Lord said: The amendment concerns the length of sentence passed by the International Criminal Court. The amendment suggests that on conviction a UK national should serve a sentence no longer than the maximum for that offence in the United Kingdom. It seeks to have other conditions apply which are the same as those of nationals serving sentences for the same kind of offence. To some extent, it reflects the declaration on the ratification status document put down by the Spanish Government which argues for similar legislation.

That raises, en passant, the question that I raised earlier in Committee: when will we know about the declarations, interpretative clauses and reservations that will go down should the Bill become law and should the Government decide to ratify the Statute of Rome? These are clearly very important matters which enable the public and Parliament to judge novel legislation and what we are committed to as a nation. If the answer is that this cannot be because the statute would not allow us, that would not come as a surprise to me, because it is another feature of the Bill that there seems to be one set of laws for the International Criminal Court which differ fundamentally from the criminal law of England and Wales. That is regrettable, but we proposed the amendment to ascertain the Government's response. I beg to move.

6.30 p.m.

Lord Williams of Mostyn: I respond by referring to the fundamental principle, which is that states parties will implement, and not unilaterally modify, the sentences of the International Criminal Court. I do not see how such a court could operate if that principle were not adhered to.

On prison sentences, Article 78 of the statute, which is helpful, provides that the ICC will take into account various factors that are familiar to our criminal justice system; for example, previous time spent in detention must be deducted. The total prison sentence must not to be more than 30 years, or life, under Article 78.3. The statute provides that the ICC will review the

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sentence after the prisoner has served two-thirds of it, or in the case of life prisoners, after 25 years, to see whether there should be a reduction.

We could not go down the route suggested in the amendments. Article 110 states:

    "The State of enforcement shall not release the person before the expiry of the sentence pronounced by the Court".

It says unambiguously:

    "The Court alone shall have the right to decide any reduction of sentence".

Article 105 provides:

    "Subject to conditions which a State may have specified",

in declaring its willingness to accept prisoners from the ICC,

    "the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it".

The amendment to Schedule 7, relating to parole, remission, credit for time served on remand and early release, would make redundant the provisions of the schedule and would violate the provisions of the statute, to which I referred briefly. That would mean that we could never accept any ICC prisoners. I do not think that that would be a good outcome for prisoners in this category.

I understand the motive that has impelled the noble Lord, but if one goes through the articles which I specified, one can see that it would not be possible to do that. We would have sentences passed by the ICC and a multiplicity of serving jurisdictions, as it were, which might have all sorts of consequences. After all, a state has to indicate that it is willing to accept prisoners, under Article 103, and when it has done so, it has to abide by the rest of the articles. I regret that I cannot accept the amendments.

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