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Lord Howell of Guildford moved Amendment No. 3:

The noble Lord said: My Lords, this amendment, with which I hope that we shall consider also Amendments Nos. 7 and 8, will be drearily familiar in form as it proposes to insert the word "may" in the Bill instead of the word "shall". Straightaway, in the light of earlier discussions and those in Committee, we can confidently predict that, given the Government's extreme anxiety to stick to the precise wording of the Rome Statute, this will be seen as an offence against that wish. In passing, before explaining why I nevertheless seek to move these amendments, I should point out that this is only a wish.

In the Canadian Parliament, I noticed that the legislation passing into that country's law varies some of the wording. They, too, wished to put the entire statute into law, but they varied the words at a number of points, one of which we shall deal with under a later amendment. I emphasise that that is the wish of the Government, but that it is perfectly possible to achieve the aims of agreeing the statute for moving to ratification--which is what the Government want--without having to put into our own law every single word, as sacred, of the statute. Other countries seem to find ways of getting around that.

The amendments all raise the question of the Secretary of State's discretion. They seek to allow the Secretary of State the option, for whatever reason he thinks fit, not to initiate the sending of documents to a judicial officer, thereby maintaining the autonomy of the United Kingdom in international matters. Amendment No. 3 starts from the point that the Secretary of State is accountable to Parliament. We believe that he should retain residual discretion to refuse to activate a request for arrest or surrender. We recognise the complex series of patterns by which the process of exchange--the dialogue, as it were--between the International Criminal Court and the party states takes place. It is complex. There are many filters and opportunities for appeal, and so on.

I obtained from the House of Commons Library a very interesting summary, when one has been through all the filters, of what would actually happen if a British soldier were accused of a statute crime. First, the ICC would have to decide whether any process was taking place in the United Kingdom, in a British service court overseas, or in the national courts of some third countries, that complied with the tests of willingness or ability. As mentioned in an earlier debate, inability does not really arise. However, if it is a question of willingness, the focus would have to be on whether the investigatory and trial processes would be considered independent, impartial and compliant with the norms of due process; and, if not, whether they were conducted in a manner consistent with the intent to bring the person to justice.

If the party state rejected the idea that these were crimes at all--echoes of our previous debate--the ICC would be in a position to regard the case as admissible.

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The process would then begin. There would, of course, be the availability of appeal against that and the permission to challenge that ruling. But, eventually, with an appeal having been heard and rejected, the ICC would decide on its own motion that it wished to pursue the case.

These amendments, which propose to change the word "shall" into "may", would provide one more block in the process. Where this nation genuinely felt that someone had done something for which no finger should be pointed at him and no investigation should take place, and where it was clear that he was acting under proper orders in a way necessary in the heat of war or even in the heat of peacekeeping, it would mean that the Secretary of State's discretion would be there to stop the proceedings.

It will, of course, be said that this is putting other words into the statute. That can be done, and is done, by other countries, although perhaps the Government do not want to do it. The "Goldsmith doctrine"--if I may call it that--will be put forward; namely, that if we set a bad example, others will follow it. I applaud the idealism behind that but I doubt very much whether that is the way this wicked world works. Clearly some countries will not sign up to the measure. I refer to the obvious "bad boys" such as Libya and Iraq. Perhaps North Korea will sign up to it. Some responsible nations have not signed up to it. However, I do not think for one moment that they will be influenced one way or another by what we do. We should uphold our international responsibilities. We should maintain our own confidence in our international reputation, but we should also protect our interests and our people. To do that we need some discretion. These amendments offer that discretion. I beg to move.

Lord Lester of Herne Hill: My Lords, the premise of these amendments and, indeed, of the Conservative Front Bench's entire attitude towards the Bill, is that it is undesirable that there should be a supra-national international court to deal with these crimes and that what one should seek to do therefore is to give the Secretary of State as wide a discretion as possible to hamper the transfer of a suspected war criminal to the court. I think that is the premise.

I want to deal briefly with that premise. I speak from personal experience. I had the great privilege of acting on behalf of the United Kingdom, defending it in the Northern Irish state case in the late 1970s that was brought against the United Kingdom by the Irish Republic. As the noble and learned Lord, Lord Archer of Sandwell, will remember as I recall that he was the Solicitor-General at the time, our forces--both the Army and the police service--were accused of acts of torture and inhuman and degrading treatment and punishment of civilian suspected terrorists in interrogation centres in Northern Ireland. The case went to the European Commission and the European Court of Human Rights and eventually the court decided that we were not guilty of torture but of inhuman and degrading treatment--breaches of Article 3 of the convention.

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In arguing that case as one of the counsel on behalf of the United Kingdom, led by someone we very much miss, the late Lord Silkin of Dulwich, who was in my view a very remarkable Attorney-General, I was struck that the British civil servants who were part of that team made it quite clear--I hope that I am not breaching a confidence all these years later--that they had come to appreciate the jurisdiction of the Strasbourg court. One of them, a distinguished lawyer, said to me, "We would never have discovered exactly what had gone on in Northern Ireland if there had not been the European Commission and Court of Human Rights. That enabled the government to get to the bottom of what had really gone on". The same government lawyer said to me that the fact finding that was done by the Strasbourg Commission of Human Rights was every bit as good as the fact finding done by an English High Court. In the end we gave an undertaking to the Strasbourg court that we would not repeat the five techniques of interrogation.

I cannot remember anyone among the officials I dealt with and acted for in the Ministry of Defence, the Northern Ireland Office or anywhere else, who did not regard the process, although painful and hard fought all the way, as ultimately beneficial. I should be interested to know whether the noble and learned Lord, Lord Archer of Sandwell, as one of the Law Officers at the time, would agree with that. I make this point because it is not self-evident--

Lord Archer of Sandwell: My Lords, in order to avoid intervening later, I seize the opportunity to say that I totally agree.

7.15 p.m.

Lord Lester of Herne Hill: My Lords, as I say, I hope that I am not speaking out of turn in sharing that experience. But I wish to do so because it illustrates that the premise on which these amendments are based is misguided. It goes without saying--I am sure that the noble Lord, Lord Howell, knows this perfectly well--that the amendment is incompatible with the terms of the statute for the reasons that we have gone over in previous debates and which I do not need to repeat. The noble Lord knows that well, because on the previous occasion the noble and learned Lord the Attorney-General explained why it was incompatible. However, I want to deal with the underlying value judgments here and, as I say, give the benefit of practical experience.

It follows from the premise of the Conservative Front Bench's approach that it would wish that we were not parties to the European Convention on Human Rights or, at any rate, had not accepted the jurisdiction of the European Court of Human Rights, which would be able, and is able, thank heavens, to take cases from IRA--

Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. I think that if the noble Lord examines the amendments that my noble friend Lord Howell and I tabled in Committee, he will readily

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ascertain that far from questioning the jurisdiction of the Court of Human Rights, those amendments sought to reinforce it in the context of this Bill.

Lord Lester of Herne Hill: My Lords, I am glad that the noble Lord, Lord Kingsland, said that. The point I am trying to make is that the position taken by the Conservative Front Bench is inconsistent with that, because any IRA terrorist of the worst kind possible can now bring a complaint against the United Kingdom before a European Court of Human Rights composed of seven to 15 out of 42 judges, of whom only one is British. That is the entitlement under the European Human Rights Convention. They can allege torture or inhuman or degrading treatment or punishment and other things as well. Every one of the 41 countries of the Council of Europe has subscribed to that. We have also incorporated it into our domestic law. It is beneficial that there be a supra-national court that can interpret and apply the international standards in a consistent but not slavishly uniform way.

I submit that the same applies to the International Criminal Court. It is beneficial that there be an International Criminal Court that is able to give a consistent interpretation to the Geneva Conventions and the other conventional and customary international law. These amendments would give the Secretary of State discretion to decide whether or not to forward an ICC request for arrest or delivery to the appropriate judicial officer. That would allow the Minister to block an ICC request from the outset. The terms of the statute applying to the arrest and delivery of an individual subject to an ICC request leave no scope for discretion--I refer to Articles 59 and 89.

I say with great respect that these amendments are entirely inconsistent with the object, purpose and language of the statute. They are simply not permissible if we are to be able to ratify the statute. Therefore, I oppose the amendments.

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