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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. As the guilty party who won the case of Pepper v. Hart, in many ways I have always regretted that victory because I find it unsatisfactory that one has to use debates of this kind in order to make clear what ought to be clear on the face of the Bill. If this intention is to be reflected in the way that the Minister has indicated in this extremely good new procedure, which I believe is better than Pepper v. Hart statements, whereby the notes on clauses become part of the record once the Bill becomes law--even though I would have preferred to see it on the face of the Bill--I believe that that would be a strong indication for the future interpretation of what will be the Act. Therefore, I accept that gratefully and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Howell of Guildford moved Amendment No. 29:

    Page 61, line 44, at end insert--

("( ) Notwithstanding anything in the preceding paragraphs, 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.").

The noble Lord said: My Lords, this amendment concerns the length of sentence passed by the International Criminal Court. It suggests that on conviction a UK national should serve a sentence no longer than the maximum for that offence in the United Kingdom. As was said in Committee, that appears to be incompatible with the statutes, but it is not incompatible with putting down declarations at the time of ratification of the treaty because that has been done by another country, so that is not impossible. Indeed, it is possible. The country concerned is the Kingdom of Spain, which made a declaration on the ratification status document, having already ratified the treaty that,

    "Spain declares its willingness to accept at the appropriate time, persons sentenced by the International Criminal Court, provided that the duration of the sentence does not exceed the maximum stipulated for any crime under Spanish law".

The noble Baroness, Lady Scotland, was kind enough to write to me about this apparent quirk and the apparent freedom of the Kingdom of Spain to take a different view from that which appeared to be stipulated in the statute. She said that it reflected domestic and constitutional issues in Spain. I should certainly like to hear why our own concerns cannot also be reflected in a declaration of this kind and why a great many constitutional and domestic issues that other countries appear to be able to reflect in their declarations cannot be reflected. To put the matter another way, could we have an indication of what declarations will be met? We have heard about the explanatory memorandum that will be produced at the end of the passage of the Bill to enable easier translation or association with the statute.

I believe that in dealing with this matter your Lordships' House deserves an indication of what kind of declarations and interpretative comments the Government intend to put down because they will make a great difference. In earlier debates we have heard how the French have taken strong viewpoints that the Government apparently do not want to emulate, to my personal regret, and I believe to the regret of many people outside.

Here is a not unimportant but a less central matter and if there were to be a declaration we would not need to press the amendment. But not knowing about the declarations and not knowing how the law will be handled leaves us in a difficult position. I would be grateful for clarification on the specific matter of the length of sentence and on the broader matter of declarations, if any, that will be put down in the future. I beg to move.

Baroness Scotland of Asthal: My Lords, I regret that the Government cannot agree to this amendment. As we said in Committee, the Rome Statute provides that

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when a state agrees to take ICC prisoners, an ICC sentence of imprisonment shall be binding on states parties, who shall in no case modify it.

What the ICC statute also makes clear is that the responsibility for deciding on, reviewing and, if appropriate, modifying a sentence of the ICC judges is that of the ICC alone. It would be odd for the statute to say anything else. If all states which were enforcing the sentences of the ICC decided that they wished to reduce ICC sentences, release ICC prisoners early or the like, they would undermine the decisions of the ICC on sentencing and could render the original sentencing decision of the ICC judges meaningless. It would be open to states, in the worst case example, to release prisoners as a result of political pressure from other states.

I understand that the noble Lord, Lord Howell, is basing this amendment on the declaration on ratification made by the Spanish government. Their position is a most particular one. The declaration is, however, worded somewhat differently:

    "Spain declares its willingness to accept at the appropriate time, persons sentenced by the International Criminal Court, provided that the duration of the sentence does not exceed the maximum stipulated for any crime under Spanish law".

The emphasis was added on the word "any".

That declaration arose because of particular constitutional problems in Spain on the question of life sentences. In this country, we do not have any such prohibition on sentences of life--indeed, we are providing for them in Part V of the Bill--and I see no difficulty therefore in our enforcing life sentences if passed by the ICC. Indeed, if we were merely to duplicate the Spanish declaration it would have absolutely no effect because there is no sentence which the ICC can pass down which exceeds the maximum stipulated for any crime under UK law.

Naturally, I understand the constitutional constraints placed on Spain, but I do not think it is a model which we or other states should now follow where those constraints do not apply. The Government believe that it is right that states parties should assist the ICC in every way possible and this includes holding prisoners for the length of time that the ICC decides. There will be no great divergence between the ICC sentences and the domestic equivalents and we are prepared to accept the ICC sentence without conditions.

In the light of the very different circumstances which apply in the UK as opposed to in Spain, I hope that the noble Lord, Lord Howell, will not seek to press the amendment.

Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness for that explanation, which is helpful and elucidating. It means--and I believe that it is the Government's policy--that we shall be holding a number of prisoners here; people convicted by the court who committed monstrous crimes. It will place a heavy duty on us but one I recognise that the Government wish us to perform. Indeed, I share that view.

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In the light of the Minister's explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Genocide, crimes against humanity and war crimes]:

Baroness Scotland of Asthal moved Amendment No. 30:

    Page 25, line 32, leave out ("or") and insert (", a United Kingdom resident or a").

The noble Baroness said: My Lords, in moving Amendment No. 30, I shall speak also to Amendments Nos. 34, 36, 37, 41, 43, 46, 48 and 49. These are, I hope, non-contentious. They give the United Kingdom jurisdiction over ICC crimes committed by UK residents. As the Bill is currently drafted, domestic courts have jurisdiction over ICC crimes committed in England and Wales or Northern Ireland and those committed overseas by United Kingdom nationals and those subject to UK service jurisdiction.

I appreciate that this issue has been the subject of considerable concern on the part of your Lordships. It is not a simple issue and it is one which the Government have considered at great length. We propose that the extra-territorial jurisdiction of our domestic courts be extended to UK residents for a number of reasons. First and foremost, it is our desire to ensure that the UK does not become a place of refuge for those accused of these vile crimes. Secondly, we wish these provisions to act as a deterrent.

The measures that we are taking to prosecute residents of whatever nationality for ICC crimes, even when committed before they came here, are a powerful weapon. We would use it to ensure that all those resident in this country, whatever their nationality, should think very hard before engaging in activities, say, as a mercenary abroad if that involved a risk of being complicit in ICC offences. It would also send a clear message to war criminals abroad that the UK is not a place where they can plan a peaceful retirement.

Thirdly, this amendment complements the provisions already in the Bill. We shall have a clear strategy to deal with war criminals found in the UK. First, the ICC can request their arrest and surrender. Secondly, if they are resident here we can bring prosecutions in United Kingdom courts. Thirdly, if a state with jurisdiction sought their extradition we would consider it in the normal way, even where the state concerned took wider jurisdiction than the UK. Where someone is a UK resident or was one at the time of the offence, we have come to the conclusion that it will often be more appropriate for our courts and prison system to deal with him or her than to arrange for another country to take over the case.

However, we remain of the view that where the person has no ties with this country, surrender to the ICC or extradition to another state is the proper and most practical course. That approach is based on a realistic appraisal of what our criminal justice system, with its strong dependency on the principle of territoriality, is organised to deliver. It is also in line with the long-standing policy of this country not to take universal jurisdiction except as required by an

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international agreement. We do not believe that the UK should unilaterally take on the role of global prosecutor. Where a crime is committed with no clear nexus to the UK, it must be for the countries concerned to prosecute and for the ICC to step in if they fail to do so. That is precisely the reason that we are establishing the International Criminal Court.

I appreciate that this change may not wholly satisfy those who ask that the UK take universal jurisdiction, but our aim is the same: to ensure that the perpetrators of these heinous crimes are brought to justice. The Government believe that the amendments that they have tabled enable the UK to play a valuable and effective role in support of the ICC and the rule of international criminal law. We believe that these amendments, together with the existing provisions of the Bill, provide a robust regime which will prevent the UK being, or being seen as, a safe haven for war criminals. I hope, therefore, that your Lordships will support them. I beg to move.

10.15 p.m.

Lord Lester of Herne Hill: My Lords, in speaking to Amendment No. 30 and the other amendments grouped with it, perhaps I may speak also to Amendments Nos. 31 to 33, 35, 38 to 40, 42 and 47 which are in the names of myself and my noble friend Lord Goodhart. We welcome the Government's recognition that the initial draft of the Bill was too narrow as far as concerns UK jurisdiction. NGOs, the Bar Council, the Law Society and noble Lords from all sides of the House have expressed strong concern that the Bill is too narrow in limiting the application of domestic offences to crimes committed in the UK or abroad by UK nationals or those subject to UK service jurisdiction.

The proposed UK residence test goes some way to addressing the problems highlighted, especially in Committee. As the Minister correctly anticipated, we do not consider that the compromise is entirely satisfactory. I shall leave my noble friend Lord Goodhart to explain the legal problems of uncertainty about the residence test.

Perhaps I may add one or two comments. In Committee, the Minister indicated that the intention to adopt the residence test was to match the definition used in the War Crimes Act 1991 and to afford flexibility. The War Crimes Act was adopted in a very different situation. In the War Crimes Act the basis for jurisdiction is residence. That is beside the point for two reasons. First, by necessity, the War Crimes Act was retrospective, whereas the ICC Bill, when enacted, will apply to offences committed only after it comes into force. Secondly, the purpose of the War Crimes Act was to prosecute Nazi war criminals who, if they had not attained UK citizenship, had at least made their permanent home here.

However, the Bill and the statute are intended to create a new international legal order for the prosecution of international crimes. The cornerstone of that scheme is the principle of complementarity and

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the presumption that the state retains primary responsibility for the prosecution of ICC crime. The preamble of the statute states that,

    "it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crime".

Therefore, we should not be left behind in accepting our responsibility to prosecute those responsible for the most heinous international crimes.

As has been said previously, other states--New Zealand, Canada, Belgium, Germany and South Africa--are adopting a wider universal jurisdiction than residence. The basis of our amendment is the Canadian example. That provides for a jurisdiction where a non-national suspected of crimes committed abroad is "present" in Canada. That would have the great virtue of covering, for example, the war criminal who takes an extended holiday here, or who has medical treatment in this country.

I agree with the Minister that we should not play a unilateral role as a global prosecutor, but that the contact with this country would be the presence in this country of the person concerned. We would not be a global prosecutor any more than Canada, New Zealand, South Africa, Germany or Belgium. Each state will carry its own share of the burden. We find it difficult to understand why we should lag behind other Commonwealth countries, based on common law systems such as the ones I have mentioned, which embrace tests wider than residence.

So far as concerns the problems of legal uncertainty and the definition, perhaps I may leave those matters to my noble friend Lord Goodhart.

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