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Lord Howell of Guildford: I must say that the response of the noble and learned Lord does not surprise me, but if the position is as rigid as he says, will he relieve my mind on a particular aspect? How is the Kingdom of Spain free to put down on the ratification status document a reservation, or declaration, which has roughly the same effect as the amendment would have? I cannot understand that.

Lord Williams of Mostyn: I have not seen that interpretative statement. It may be that there is an internal Spanish justification; I simply do not know. If the noble Lord can provide me with that, I shall be happy to research it and write to him, and put a copy in the Library. My advice and understanding is that it is not possible for us to do that.

I was saying that an accepting state--one which accepts prisoners into its domestic prisons--has to indicate its willingness to accept prisoners. Any country such as Spain is entitled to say that it will accept prisoners, pursuant to Article 103.1, which may mean that no prisoner will go to that jurisdiction. That would be a misfortune for many.

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It may be that that short paraphrase has not been perfectly expressed. Perhaps I should write to the noble Lord on that point in any event, if he will allow me a day or two to do so. I shall also put a copy in the Library.

Lord Howell of Guildford: I shall be happy to do that. I take it from what the noble and learned Lord said that such declarations are possible--indeed, they have occurred--but that the British Government would not wish to make such a declaration. I look forward to receiving a note from the noble and learned Lord, and thank him for his kind offer.

Lord Avebury: Before the noble Lord sits down, is he clear about whether the Government will declare their willingness to accept prisoners under the statute? If so, it would be useful to have it on the record.

Lord Williams of Mostyn: As far as I am aware, we are willing to take prisoners. That will be some way down the road--temporarily.

Lord Howell of Guildford: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 agreed to.

Clauses 43 to 48 agreed to.

Clause 49 [Power to make provision for enforcement of other orders]:

On Question, Whether Clause 49 shall stand part of the Bill?

Lord Howell of Guildford: We come to an important matter on which we seek strong reassurance. The purpose of proposing that Clause 49 should not stand part of the Bill is that the provisions for the enforcement of ICC-generated or originated fines, forfeiture or compensation orders should be included in primary legislation, and not left to subordinate provision. It appears that the Bill allows that there should be no limit on the future extension of additional crimes which can be tagged on to the Bill or its schedules. We do not believe that that is right. Perhaps there are reassurances in the Bill. If so, we should like to hear them.

We propose that any attempt to amend the schedule should come back before Parliament, rather than being adjusted simply by Orders in Council. Any updating of statutory instruments, regulations or schedules must be brought before Parliament. That is why we seek to remove the clause and that is the reason behind some amendments that have yet to be moved. Such an amendment was accepted by the government in the New Zealand Parliament, and there is no reason why the same should not apply here. It is a principle of our democracy and parliamentary system that new crimes, when identified, should be added to the statute book by primary legislation. That should certainly be the case for future ICC crimes which have not yet been defined, but which may be added to our statutes in due course.

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Lord Williams of Mostyn: I am not sure that I agree with the noble Lord about the purpose of Clause 49. It is not to do with new crimes, but the enforcement of other orders. In other words, it is about an order that is not a sentence of imprisonment. Clause 49 states:

    "The Secretary of State may make provision by regulations for the enforcement"--

it is simply provisions for enforcement--

    "of fines or forfeitures . . . orders by the ICC against convicted persons, specifying reparations to, or in respect of, victims".

What has to be in the regulations is then set out.

The regulations could not be made without scrutiny. The provision simply gives effect to our states party obligation to enforce the orders. Those orders are set out in Clause 49(1)(a) and (b). They relate to fines, forfeiture of property derived directly or indirectly from the crime for which the person has been convicted. What is also important--I hope that the Committee will affirm this--is the order requiring a person to make reparation to the victims, a power which our delegation in Rome worked hard to include in the statute.

Enforcement orders can be made only after conviction and after any appeal has been determined. So the provision is not as dramatic as the noble Lord feared. It simply provides the mechanism by which fines, property orders and reparation orders can be gathered. We envisage that the regulations would follow established procedures along the lines of the enforcement of forfeiture orders which we receive from other countries. We would anticipate a process by which the order would be registered and then enforced by a domestic court as if it were an order of the court. But there will be safeguards in the procedure in respect of persons with an interest or rights in the property affected by any order.

I hope that I have been able to satisfy the noble Lord. I do not think that his fears, which I recognise as legitimate, bear on Clause 49, which is to do with the recovery of a fine, a recovery of property order and the recovery of reparations. The scheme of regulations will be published and there will be the opportunity for Parliament to scrutinise the regulations. I do not think that it is the worrying problem that we have had on other occasions and about which I have been able to meet noble Lords' concerns by accepting the views of the Delegated Powers and Deregulation Committee. It is quite different in concept.

Lord Howell of Guildford: I am grateful to the noble and learned Lord. The stand part debate is concerned primarily with fine, forfeiture or compensation orders. I believe that those should be put into primary legislation. The noble and learned Lord disagrees with that and believes that the established procedures are acceptable. As to crimes, I accept that I was reaching forward into the debate on the next amendment where we will be concerned with that matter.

Clause 49 agreed to.

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Clause 50 [Meaning of "genocide", "crime against humanity" and "war crime"]:

Lord Howell of Guildford moved Amendment No. 105:

    Page 23, line 38, leave out subsections (2) and (3).

The noble Lord said: We come now to the amendment which expands the scene on which I wish to comment. Subsections (2) and (3) of Clause 50 appear to provide for the imposition of serious criminal liability on a retrospective basis. In other words, something that was not a crime is subsequently seen to be a crime. We believe that criminal sanctions should be clearly defined in advance of the acts concerned. Any proposed additions to the types of offences which are to be added to the ICC armoury--additions will come because the assembly will get its teeth into these matters--should be the subject of primary legislation, something which, again drawing on the New Zealand example, has been ensured in the legislation of that country.

Can the Minister say whether that is the case? What other crimes might be added? How will they be handled? Can we be sure that they will be handled by primary legislation and that new crimes will not be whistled onto the statute book by Order in Council or by a minor regulatory provision?

Baroness Scotland of Asthal: Perhaps I may say straight away that we do not see the difficulty that the noble Lord has outlined in relation to interpretation and we do not see Clause 50 as having a retrospective basis. Amendments Nos. 105 and 106 would have the effect of removing consideration by domestic courts of like cases before the ICC and internationally. They would also take the Elements of Crimes document out of the process of defining these crimes. Perhaps I may draw the Committee's attention to Clause 50(2) and (3), which the noble Lord seeks to have removed. It is a guide in relation to interpretation in terms of what the court should take into account. Subsection (2) provides:

    "In interpreting and applying the provisions of those articles the court shall take into account--

    (a) any relevant Elements of Crimes adopted in accordance with article 9, and

    (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000".

Members of the Committee will be aware that international consensus was arrived at in relation to the Elements of Crimes and they will have persuasive and helpful authority for any courts seeking to determine it. I am quite sure that the noble Lord's intention in putting forward the amendment is not to remove or disable our courts from being in an equal position to deal with matters relevant to the ICC. If that was the purpose, it would not be a sensible step.

ICC cases are likely to be few and far between. That will be amplified at domestic level. There will be no large body of case law for our courts to consider when faced with a difficult ICC trial. We should afford them

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every opportunity to take into account how like cases have been decided in other jurisdictions, especially at the ICC itself.

Subsection (3) states:

    "The Secretary of State shall set out in regulations the text of the Elements of Crimes referred to in subsection (2), as amended from time to time".

We would say that that is a helpful and necessary provision in terms of development of this issue.

I turn to Amendments Nos. 115 to 118, which seek to amend Clause 54 in a number of ways. Amendments Nos. 115 and 116 have a similar aim to the ones I have just mentioned. They seek to exclude, or make discretionary, consideration of ICC judgments and decisions relating to the interpretation of part of the Rome Statute. As I explained, in relation to Clause 50, that does not seem a sensible course to take.

Our courts will rarely face cases where someone is being tried for offences against the administration of justice of the ICC. We should afford them every opportunity to take into account how like cases have been decided and considered, especially at the ICC itself given the nature of the offence we are discussing.

It is our belief that Amendments Nos. 117 and 118 would not add anything of substance to the Bill. Subsection (5), which they seek to amend, follows the drafting of other Acts with an international criminal element; for example, the corresponding subsection of the War Crimes Act 1991. We see no reason to deviate from that construction. We should not invite judicial review in this way for matters ordinarily dealt with in the course of a criminal trial. I hope therefore that the noble Lord will not seek to press his amendments.

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