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Lord Howell of Guildford: I am grateful for the noble Baroness's comments, which I found reassuring. In as far as she is able to explain that under the common law these matters would be fairly handled, that must be reassuring to those outside the Chamber and outside the skilled and expert but sometimes rather baffling world of legal interpretation who are worried as they go about their business, particularly in the military world where ugly things do happen tragically. I found the noble Baroness's comments useful and valuable. They will be on the Hansard record. In the light of that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Clauses 67 to 69 agreed to.

Clause 70 [Extradition: Orders in Council under the 1870 Act]:

Baroness Scotland of Asthal moved Amendment No. 128:

(2A) "Part V offence" means--").

The noble Baroness said: The amendments are brought forward for the avoidance of doubt. Amendments Nos. 128 and 129 are technical ones which do not change the policy as set out in the Bill. They are proposed in the light of the recent Court of Appeal decision in Al-Fawwaz v. the Governor of Brixton Prison which exposed a discrepancy in some extradition cases. The amendments are intended to give better effect to the lifting of the dual criminality rule in respect of Schedule 1 to the Extradition Act than is presently provided in Clause 70 as drafted.

The amendments bring Schedule 1 extradition cases in line with the position in respect of other extradition cases dealt with under the Extradition Act 1989. It does so by enabling extradition for the extra-territorial offences of a requesting state under Schedule 1 as is the case with other requesting states under the main body of the 1989 Act. I beg to move.

Lord Lamont of Lerwick: Perhaps I may raise a point which is not directly relevant to the amendment but to the clause.

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Clause 72 covers offences not regarded as of a political character. It provides that extradition can take place for these offences even if they were not offences at the time and place where they were allegedly committed. Can the noble Baroness comment on that? We have been continuously reassured that there is no retrospection in the Bill.

Baroness Scotland of Asthal: There is no retrospection for new offences. Of course there are already existing provisions in relation to old offences as regards extradition.

On Question, amendment agreed to.

Baroness of Scotland of Asthal moved Amendment No. 129:

    Page 33, line 42, leave out subsection (3) and insert--

("(2B) For the purposes of Schedule 1 to the 1989 Act, conduct, wherever committed, which constitutes--
(a) a Part V offence, and
(b) an offence against the law of any state in relation to which that Schedule has effect,
shall be deemed to be an offence committed within the jurisdiction of that state.
(2C) If any conduct would constitute a Part V offence if committed in the United Kingdom then, notwithstanding that it does not constitute such an offence--
(a) a person whose surrender is sought in respect of that conduct may be surrendered by the United Kingdom in pursuance of an Order in Council to which subsection (2) applies, and
(b) subsection (2B) applies to the conduct as if it constituted a Part V offence.").

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Lord Howell of Guildford moved Amendment No. 130:

    After Clause 70, insert the following new clause--


(" . The Secretary of State shall following any consultation prior to any proposed warrant, or actual warrant, from the ICC lay a report before the Foreign Affairs Select Committee of the House of Commons, or any ad hoc committee of that Committee, setting out in particular--
(a) the nature of the proposed warrant;
(b) the grounds for refusal to accept the warrant; and
(c) any reasons given by the Secretary of State why he considers that a warrant should not be issued, or that the case has been dealt with and or, that the case will be dealt with under United Kingdom jurisdiction").

The noble Lord said: Although the hour is getting late, I make no apology for bringing to the attention of the Committee a matter which I believe to be central to the effectiveness of the legislation and which to me is somewhat puzzling in the light of the many remarks made in Committee by Ministers.

In Committee it is our job to scrutinise the proceedings, jurisdiction and extent of the powers of the international court. Where powers are being created or transferred, that is a matter of proper

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concern in the interests of the subjects of this country. We have been told more than once that our amendments cannot be considered, not because of their merits--they may be technically inadequate--but because "this is what the Rome Statute states and that is what goes".

That leaves us in a slightly difficult position. While we have said that we welcome the Bill and its aims, we seek reassurance on a number of aspects. We can only do so by amendment. I hope that this amendment will not meet with the same response as others for this reason. The noble and learned Lord the Attorney-General has said during the course of the debate--I do not think that I distort his words--that we shall not have the situation where, in taking proceedings against an alleged war criminal, we are faced with a warrant from the ICC. He said that the ICC would alert us to the fact that it proposed to issue a warrant to someone suspected of being in the United Kingdom, resident or otherwise--we shall come to that another time. I hope that he is right in assuring us that national courts in signatory countries to the statute will have primacy.

That is all very well. The aim of the amendment is to get behind that and find how we can become aware of any discussions or consultations between the Secretary of State and the ICC that could lead to the rejection of an ICC investigation. In other words, how do we set out the reporting requirements for that very important procedure? My understanding of what has been said earlier in Committee by a number of authorities, including Ministers, is that the Secretary of State can say, before a warrant is issued--in other words, during the discussions or consultations with the ICC--that we in the United Kingdom will deal with the matter, that we believe that we have dealt with the person sufficiently or that we believe that there is no need to pursue the matter and that will then be the end of it. That is certainly a safeguard, although I tremble slightly at the thought of how other countries, with maybe less commitment to the rule of law or with a commitment to other kinds of law, such as Islamic law, will interpret that provision, but there it is. That is apparently what we have said.

If the International Criminal Court is not satisfied with the Secretary of State's assertion that the matter has been investigated and there is nothing more to do, can it issue a warrant in any case? Does it have the power to initiate proceedings against a state party and signatory country if it believes that an alleged war criminal is not going to be prosecuted or was not sufficiently prosecuted--or for some other reason? It appears that the Secretary of State of a signatory country can deal with an alleged war criminal nationally and insist to the ICC that the nation state has dealt with the alleged criminal. Is that all within the bounds of the Rome Statute and the treaty?

There is some clarity lacking on that issue. The aim of the amendment is to bring the contents of such discussions and decisions within the realm of Parliament. Of course it will be said that we should soon hear of any such proceedings that were knocking around. It is doubtful that the ICC would not know about them. However, the issue has been raised in your

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Lordships' House. Under those circumstances, if the ICC issued a warrant or proposed to the Secretary of State that one should be issued, Parliament should be made aware of the matter and would wish to know about it.

Finally, the amendment would put such discussions on a formal footing. We are talking about extremely serious matters and the most hideous of crimes. We would want to know what was being considered by the Secretary of State and the International Criminal Court. The Minister may have in mind some reporting regime to Parliament. If so, it would be good to hear about it, because we need more than just a statement that it is a matter of interpreting or enshrining the statute in the law of this land. I beg to move.

Lord Lester of Herne Hill: Clause 2 deals with requests for arrest and surrender, and Clause 3 with requests for provisional arrest. They give the Secretary of State very little discretion. That is especially true in relation to the issuing of warrants.

The function of the Secretary of State is to forward either the ICC warrant or the ICC request to the appropriate judicial authority, or, in the case of a provisional warrant, to a constable. In the case of a provisional warrant, his role is slightly expanded. Under Clause 3 he forwards the request to a constable only if it appears to him that an application for a warrant should be made. However, if that is read together, as it must be, with the statute, the Secretary of State would have little reason to refuse to issue a warrant.

As has been said many times during the debate, the safeguards under the Bill and the statute are partly to be found in the national judicial system in relation to habeas corpus and respect for fundamental rights, and mainly in the International Criminal Court procedures. Given the very limited breadth of ministerial discretion, we cannot understand how such a matter could possibly need to be reported either to the Foreign Affairs Select Committee of the other place or to any other parliamentary oversight body. For those reasons, we do not consider the amendment to be necessary or appropriate.

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