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Lord Lester of Herne Hill: My Lords, at this hour the best thing to say is probably, "Snap", but that is not parliamentary language, so instead I shall say that we are grateful for the amendments, which meet our concerns. We are glad that we have been able on this occasion to join forces with the Conservative Front Bench and Back Benches and all sides of the House.

Lord Howell of Guildford: My Lords, it is now my turn to say--or not to say--"Snap". I agree with what the noble Lord, Lord Lester, has said. We are grateful that the amendments have been tabled.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 16:

On Question, amendment agreed to.

Clause 12 [Right to review of delivery order]:

Baroness Scotland of Asthal moved Amendment No. 17:

    Page 8, line 7, at end insert ("(but with the substitution in section 5(5A) for "makes a delivery order" of "sets aside the delivery order")").

On Question, amendment agreed to.

Clause 13 [Waiver of right to review]:

Baroness Scotland of Asthal moved Amendment No. 18:

    Page 8, line 33, after ("bail") insert ("in England and Wales").

On Question, amendment agreed to.

Clause 16 [Bail and custody: general]:

Baroness Scotland of Asthal moved Amendment No. 19:

    Page 9, line 39, at beginning insert ("if an application for bail is made to the court,").

The noble Baroness said: My Lords, the aim of the amendment is to align Clauses 16 and 18 and more closely to follow Article 59 of the statute. Clause 18 implements our obligations under Article 59.4 of the statute by requiring a court, when considering an application for bail under Part II, to consult the ICC and to consider the matters set out in subsection (3). To ensure that Clause 18 applies in all cases, Amendment No. 19 amends Clause 16(1) so that the court in England and Wales will consider bail only if an application is made.

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Amendment No. 21 achieves the same purpose for Scotland, but, together with Amendment No. 20 and others, it also brings the bail provisions in the Bill more closely into line with current practice and procedure in Scotland. As we have already explained, bail provisions are different in the separate jurisdictions. In Committee, the noble Lord, Lord Howell of Guildford, helpfully raised the concerns of the Law Society of Scotland that Clause 16 did not fully reflect those differences. On further consideration, we agree. Amendments Nos. 20 and 21 have been designed to apply in Scotland the usual rules for bail. We are grateful to noble Lords for highlighting that issue.

All three amendments are technical. They ensure that the bail provisions of the Bill are workable and practicable. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 20 and 21:

    Page 9, line 44, leave out subsection (3).

    Page 10, line 6, at end insert--

("( ) Where under this Part a court in Scotland has power to remand a person and the person makes an application to the court for bail, the court may admit him to bail and shall have the like powers in doing so as it has in proceedings in respect of an offence alleged to have been committed by him.").

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 22:

    Page 10, line 9, at end insert (", or who is in custody awaiting trial or sentence by a national court").

The noble Baroness said: My Lords, in Committee the noble Lord, Lord Kingsland, helpfully tabled an amendment to Clause 16(5). Subsection (5) of that clause provides that a court will not grant bail to someone who is already in detention or imprisonment, serving a sentence imposed by a national court. The noble Lord suggested that that should be amended also to cover persons in custody, pending trial before a national court.

In Committee we agreed that that was an important point and that we would return with an amendment which would meet the noble Lord's purpose. We believe that Amendment No. 22 does so. It provides that no one who is in custody awaiting either trial or, indeed, sentence by a national court will be granted bail under Part II of the Bill. We consider the amendment to be a sensible improvement to the Bill. I beg to move.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness.

On Question, amendment agreed to.

Clause 17 [Bail and custody: supplementary]:

Baroness Scotland of Asthal moved Amendments Nos. 23 and 24:

    Page 10, line 11, at end insert ("in England and Wales").

    Page 10, line 12, leave out ("in England and Wales").

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On Question, amendments agreed to.

Clause 23 [Provisions as to state or diplomatic immunity]:

The Deputy Speaker (Lord Ampthill): My Lords, I must warn the House that if Amendment No. 25 is agreed to, I cannot call Amendment No. 26.

Lord Lester of Herne Hill moved Amendment No. 25:

    Page 13, line 21, leave out subsection (4).

The noble Lord said: My Lords, in moving Amendment No. 25, I shall speak also to Amendment No. 27. As it stands, Clause 23 gives the Minister discretion to refuse delivery in certain cases and adopts a very cautious approach. The clause already leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by the ICC. Clause 23(4), which we would omit, effectively leaves the Secretary of State to decide to whom immunity should attach in relation to non-state and state parties alike. We suggest that that leaves the Secretary of State open to great political pressure and could prevent the United Kingdom from co-operating effectively with the ICC.

This matter was debated fairly extensively in Committee, when the Attorney-General sought to make a distinction between discretion in relation to state parties under subsection (1) and non-state parties under subsection (2). The justification for that distinction is hard to see, and I cannot improve upon what was said on the matter by my noble friend Lord Avebury. I shall not hold up the debate by quoting what he said on that occasion.

Our amendment is based on Sections 66 and 120 of the New Zealand statute. Those provide that, where the Minister is concerned that there will be a clash with the international obligations of New Zealand, including in relation to immunities, he can consult the ICC to ask whether or not it will proceed with the request.

Such a consultation procedure would remove the veto but would allow the Secretary of State to raise his concerns in relation either to state or non-state parties and to ask whether the ICC considers that an effective waiver has been issued and whether it properly applies to the individual concerned. Such a situation would arise, for example, where a dispute existed as to the effective government of a state and where an individual argued that the party which issued the waiver and accepted the jurisdiction of the court did not have the effective authority to do so. It is highly unlikely that the ICC would ask us to set aside our international obligations as regards state or diplomatic immunities except where the state concerned had accepted its ability to do so. That is the purpose of Article 98 of the statute.

We should have confidence that the ICC, once convened, would obviously respect its own statute. The ICC might make a decision with which we did not agree. In those circumstances, as in other places in the Bill, we should abide by the statute and give the ICC the necessary priority. I beg to move.

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9.45 p.m.

Baroness Scotland of Asthal: My Lords, in responding to the noble Lord, I shall speak to Amendments Nos. 25, 26 and 27. I understand that the noble Lord, Lord Lester, is in essence seeking two things: first, that the Secretary of State should consult with the ICC when issues of state or diplomatic immunity arise and, ultimately, to give the final say on whether the arrest and surrender of an individiual goes ahead to the ICC.

I am afraid that I must oppose the amendment. The Government fully accept that the ICC should be consulted when there are issues of state or diplomatic immunity involved in an ICC request. That is why the clause, as drafted, provides for consultation with the ICC and with the sending state of the person concerned. The opinions of both will be very carefully taken into account in any decision taken by the Secretary of State.

I differ from the noble Lord on the second point. We do not consider that, in the very special circumstances which would exist if a case arose under this clause, the provision which we have made in subsection (4) is necessary. We do not envisage that this is a circumstance which will arise often. The situation we are providing for will be rare. Precise details are difficult to predict. Subsection (4) was included for that reason. We consider that it should remain for that reason. I have listened with great care to the opinions and views expressed in the House about the breadth of the provision in the subsection. The Government are bringing forward Amendment No. 26 to address that concern. In the light of that, I hope that Amendment No. 25 will not be pressed.

As regards Amendment No. 26, again the Government listened very carefully to the debate on this issue in Committee. The question of state and diplomatic immunity is an important one and the Government have reconsidered Clause 23 to see whether there is any way of meeting the concerns expressed when we last considered it. The amendment that we propose would limit the category of persons to whom the subsection would apply. It is intended as a response to the concerns expressed about the breadth of the powers given to Ministers under the subsection. The amendment clarifies the extent of subsection (4) so that there will be no scope for wilful misinterpretation as to the categories concerned. We do not seek that subsection (4) applies to everyone including persons who may enjoy certain minor immunities or privileges. The subsection applies in very limited circumstances and to very limited cases; namely, those where, but for this clause, the individual would enjoy immunity from arrest and surrender to the ICC. That may include, for example, a serving ambassador in London or a visiting head of state. The position of this group of people under international law is distinct and we wish to reflect that in the subsection.

What is important is that this amendment will limit the possibility of other persons claiming immunity and thereby seeking to frustrate their surrender to the ICC. I hope that this amendment goes some way to address

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the concerns expressed by your Lordships in Committee. In the light of this, I hope that your Lordships will be able to accept the Government's amendment.

Perhaps I may touch on Clause 23 which relates to the specific category of individuals who enjoy particular legal status. The clause has been drafted very carefully and with full regard to that status and to our other obligations in international law to protect status. I hope that your Lordships will feel able to accept the government amendments and that the noble Lord will not press the other two amendments.

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