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Hannay of Chiswick, L.
Henley, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Hylton, L.
Jay of Ewelme, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Low of Dalston, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Montrose, D.
Morgan, L.
Morris of Bolton, B. [Teller]
Morrow, L.
Murphy, B.
Neill of Bladen, L.
Nicholson of Winterbourne, B.
Northbrook, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Pannick, L.
Patten, L.
Ripon and Leeds, Bp.
Seccombe, B.
Sharp of Guildford, B.
Sheikh, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stewartby, L.
Taylor of Holbeach, L.
Tebbit, L.
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Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tyler, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Williamson of Horton, L.
Young of Hornsey, B.
Adams of Craigielea, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Giddens, L.
Gilbert, L.
Gould of Potternewton, B.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kinnock, L.
Kinnock of Holyhead, B.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mandelson, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel of Bradford, L.
Pendry, L.
Prosser, B.
Quin, B.
Radice, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Symons of Vernham Dean, B.
Thornton, B.
Tunnicliffe, L. [Teller]
Uddin, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wilkins, B.
Young of Norwood Green, L.
Young of Old Scone, B.
9.01 pm
Clause 50 : Abolition of common law defence of provocation
65: After Clause 55, insert the following new Clause-
"Extension of extra-territorial application
(1) Part 5 of the International Criminal Court Act 2001 (c. 17) (offences under domestic law) is amended as follows.
(2) In sections 51(2)(b), 52(4)(b) and 54(4)(b) (application to acts committed outside the United Kingdom) for "or a person subject to UK service jurisdiction" in each place that it occurs substitute ", a person subject to UK service jurisdiction or any other person (whatever that person's nationality) who is subsequently present in the United Kingdom".
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(3) In sections 58(2)(b), 59(4)(b) and 61(4)(b) (application to acts committed outside the United Kingdom) for "or a United Kingdom resident" in each place that it occurs substitute ", a United Kingdom resident or any other person (whatever that person's nationality) who is subsequently present in the United Kingdom".
"68A Proceedings against persons subsequently present within the jurisdiction
(1) This section applies in relation to a person who commits acts outside the United Kingdom at a time when that person is not a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction and who is subsequently present in the United Kingdom.
(2) Proceedings may be brought against such a person in England and Wales or Northern Ireland for a substantive offence under this Part if-
(a) that person is present in the United Kingdom at the time the proceedings are brought, and
(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.
(3) Proceedings may be brought against such a person in England and Wales or Northern Ireland for an offence ancillary to a substantive offence under this Part (or what would be such a substantive offence if committed in that part of the United Kingdom) if-
(a) that person is present in the United Kingdom at the time the proceedings are brought, and
(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.
(4) In this section a "substantive offence" means an offence other than an ancillary offence.
(5) Nothing in this section shall be read as restricting the operation of any other provision of this Part.""
Lord Carlile of Berriew: My Lords, in moving Amendment 65, I draw your Lordships' attention to its being grouped with government Amendments 66A and 135A. In the light of the previous debate, I should perhaps say that that is a result not of infidelity of any kind but of a meeting of minds on this subject. We are dealing now with the extraordinarily important and grave issues of war crimes, genocide and crimes against humanity. At the outset of what I hope will be a fairly brief speech, I wish to express my thanks to those other noble Lords whose names appear on the Marshalled List, the noble Lord, Lord Hannay, who has been an enormously wise adviser on this matter, and the Aegis Trust, which has done a tremendous amount of work in briefing Members of the House.
The headline of the attempt of those of us who wish to amend the law in this regard can be summarised in the three words "no safe haven". Our view is that there should be no safe haven for war criminals, genocidaires and those who commit crimes against humanity in any of the jurisdictions of the United Kingdom. No one should be allowed to stand and flaunt their past activities while in the UK without at least running the risk of being prosecuted. We are determined that our competent prosecution authorities should be able to exercise their discretion in the normal way, as with every other criminal offence in relation to such persons who may have committed war crimes, genocide or crimes against humanity.
Our approach to this difficult issue fell into two headings. One heading was "presence"; we argued that mere presence in the United Kingdom should render
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In approaching the discussions that have been taking place, we have looked at various possible scenarios involving the de facto presence in this country of people who were guilty, were likely to be guilty or might be guilty of the sort of offences that we have had in mind. I look forward to hearing the Minister explain to the House, in due course, how at least most of our concerns have been met by residence plus, as set out in government Amendment 66A, in particular in its second part, which appears on page 13 of the Marshalled List of amendments.
Those of us who share my view have recognised throughout the effect of the law of nations, while there will be some who do not agree that we should recognise that law. We recognise the reality of sovereign immunity. When we recognise Governments, we may like them not one bit. Nevertheless, even if we do not like them we recognise them as Governments. There are many examples of our Government and other Governments negotiating successfully and leading to change in countries whose Governments we dislike very much. That depends, in part at least, on the law of sovereign immunity and in allowing officials, if they come officially to this country, to negotiate-not to be arrested as a result of complaints to the police, thereby frustrating the negotiations.
I, at least, believe that the government amendments, especially paragraphs (g) and (h) of subsection (1) of the proposed new section on page 13 of the Marshalled List, will remove a possibility that we cannot accept should be right. We believe that the amendments will remove the realistic possibility of known war criminals, genocidaires and criminals against humanity remaining in the United Kingdom-and I use that neutral "remaining" purposefully-without running the risk of being tried here. Can the Minister confirm that we have understood correctly that it is the Government's intention that people who remain in this country and whose presence is clearly undesirable-and whose presence the Government have made it clear is undesirable-will run that risk?
We recognise, of course, that there is an area of discretion to be exercised here, as there always is in relation to prosecutions. The discretion can be broadly summarised as the exercise of the public interest. In all international law, public and private, there are better and less good forums where trials can most meaningfully take place. I certainly accept that if somebody who should otherwise be tried for a war crime in this
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I say to the Minister that we have compromised, possibly more than we would have wished, and that we do not regard the idea of residence plus-residence with a number of factors defined as residence-as an entirely satisfactory solution. We certainly do not regard it as a perfect solution. However, we understand the legal and jurisdictional difficulties and are grateful for the distance that the Government have come from their original refusal to consider any variation on the word "residence" to the point that we have reached.
In summary, those of us who put our names to this amendment and who are now prepared to accept the Government's amendments believe that we have achieved something important both through the formal debates that have taken place on the Floor of this House and elsewhere and in the discussions that have taken place in the useful way that I have described. My belief is that we can feel a sense of having made a real contribution to better global criminal jurisdiction. I beg to move.
Baroness D'Souza: My Lords, the background to this vital issue has been set out with great eloquence by the noble Lord, Lord Carlile. I should like to add that we are extremely grateful to the Government for having been so patient in listening to our concerns and, indeed, for having moved so far in meeting them. We are of course also indebted to the organisations that have provided consistent and expert advice: the Aegis Trust, Redress, JUSTICE and African Rights.
We stressed in our representations that we would wish to see the UK conform to several other countries that manifest a determination to ensure that genocide suspects are prosecuted and that the UK in no way acts as a safe haven for these people, of which there are still too many. We argued that a firm stance from the Government would act as a strong deterrent and, therefore, far from the courts being flooded with cases, there would in time be fewer, as no one would henceforth risk coming to the UK.
That said-and I recognise the broad inclusion of those considered to be residents-there are remaining opportunities for those suspects who arrive to receive medical treatment, to visit on business matters or even to visit their children at school in this country. Even these temporary visitors would, however, be liable for arrest, treated as residents and thus liable to prosecution if-I repeat, if-there were to be a dedicated and properly resourced unit within the Metropolitan Police whose task would be to investigate and follow up reports of suspected war and other heinous crimes. The mere existence of such a unit would act as a further deterrent to would-be visitors. Moreover, re-establishing such a unit-there was such a unit some time ago-would be in keeping with the Council of the European Union, which recommended that
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Once again, I thank the Government and, indeed, the Bill team and trust that they, too, will be satisfied to have been part of making a small but hugely important historical change.
Lord Henley: My Lords, perhaps I may intervene at this stage. It suddenly occurred to me that we are at Report with a major government amendment that fills some five pages of the Marshalled List setting out the Government's alternative version. Perhaps I may suggest that the Government intervene at this stage, as we could then have a proper debate. I think that it is open to the House to allow people to speak after the Government if the Government so wish it. I see nods from the appropriate quarters. If the Government set out their case and others respond afterwards, that might give us a better debate and speed up the proceedings of the House. I put that to the noble Lord. He can do what he wishes, but I think that he has received a nod to suggest that that would be appropriate procedure.
9.15 pm
Lord Hannay of Chiswick: My Lords, I am sorry to disagree with the noble Lord, but I have a couple of questions that I want to put to the Government and it looks as though I would not be in a good position to do so if the Minister spoke now. I therefore hope that the House will allow me a couple of minutes to put the questions. I am sure that we will then have the debate that the noble Lord wants.
Speaking in support of the noble Lord, Lord Carlile, and my noble friend Lady D'Souza, we are grateful to the Government for their initial move in Committee to make these crimes retrospectively recognisable under British law. They are now recognised from 1991, which catches a considerable number of potential criminals in Serbia, the former Yugoslavia and Rwanda. We are also grateful for all the work that the Minister, his colleagues and officials undertook in trying to meet our points. However, I still believe that presence minus would have produced a cleaner, clearer outcome than residence plus. The effort that the Government have made in Amendment 65B is acceptable, but it is more complicated by going down the presence minus route. To some extent, it amounts to the approach of the Red Queen saying, "Residence is residence because I say it's residence".
Nevertheless, I shall not look that gift horse in the mouth and would like to ask three questions. First, much of the interest in this subject was triggered by the Rwandans who the Government tried to deport back to Rwanda, where they would have stood trial, and who the Court of Appeal, quite correctly in my view-it is not my job to say so, but nevertheless-decided would not get a fair trial in Rwanda. It then turned out that they could not get a trial anywhere and they got off. I would therefore like to know whether subsection (1)(g) in new Section 67A in his amendment would, if
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Secondly, subsection (1)(c) of the new section refers to,
- "an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom".
Can the Minister throw light on whether that covers those who come here for military training or courses? It sounds as though it does, because military training and courses are study, but I would like to hear that from the Minister. Of course, in certain countries, the military are only too likely to be those who are capable of committing, and in some cases have committed, such crimes.
Thirdly, can the Minister throw light on the impact of these fairly complex provisions on people who get long-term business visas, often for six months? Would they be caught if they fell within the scope of the categories that are applied?
I repeat that the Government have made a fair try at closing a loophole that should never have existed. We do not want in this House to go into how it came about in the first place, but I am sure that we do not want it to be there. Moving away from it is highly desirable. The more toughly and clearly we move away from it, the less these people will come to this country. Therefore, the problem that the Government see of an excessive demand on resources is self-solving: the tougher we are, the less they will come. The clearer we are that the culture of impunity will not be tolerated by this country, the more we will help the worldwide cause of preventing these appalling crimes.
Lord Lester of Herne Hill: My Lords, I am in a dilemma because I would rather speak after the Minister, but I can speak briefly before if he prefers.
Lord Bach: I shall rise now. It was important that the three Members of the House-I know that there were others-who were most actively engaged in talking to the Government and moving us from our original position should speak first in this debate. Their amendment is first, and mine follows. I am delighted to respond to their amendment and to set out the reasoning behind ours and explain what they will do.
First, I warmly thank particularly the noble Lords, Lord Carlile and Lord Hannay, and the noble Baroness, Lady D'Souza, for the enormous amount of time that they have taken in trying to persuade us that our original position was wrong. I thank them equally for not holding out for so long that we could not find a solution to a problem that is crying out for one. I am most grateful to them, as I am to my officials, and I am grateful for the thanks that have been expressed to them. They have worked extraordinarily hard to get what I hope the House will agree is a satisfactory conclusion to this difficult issue.
I thank all those who originally pressed us to look at the possibility of taking the highly unusual step of making the offences of genocide, war crimes and crimes against humanity in the International Criminal Court Act 2001 retrospective, and we have subsequently
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Let me deal with retrospection first. It is the terrible nature of the crimes in question that justifies us taking the radical step that we now propose to make the legislation retrospective. They are international crimes of the most serious gravity and demand an exceptional response. When we met in Committee on 7 July and I undertook to bring forth amendments, I said that we would cover the period from 1 January 1991 as far as the legal principles applicable to retrospection would allow. Our amendments deliver that. The date is pivotal in the development of international law. It is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute these three types of crime. It allows us to adopt the same date for all three areas, and it is not too far back to make successful prosecution impractical.
Our amendment is complex but it reflects the complex nature of the circumstances and the 2001 Act. We spent the summer studying in depth each element of the offences listed in the 2001 Act to identify the extent to which they could be properly tracked back to 1991. This has been a long and arduous task. We are satisfied that this can be done in a straightforward way for genocide and some categories of war crimes. It is clear that those offences and all their elements were fully recognised in international law by 1991, and our amendments reflect that.
The position in the other areas is less straightforward. While the vast majority of offences were recognised as criminal in international law by 1991, a small number may have been recognised at that time in a narrower form than appears in the 2001 Act, and a very small number may not have been sufficiently recognised at all in 1991. Indeed, international law naturally developed over the period in question, and it is important that our clauses cater for this to ensure the maximum possible coverage for that period-1991 to 2001. We have therefore developed a hybrid approach providing absolute certainty where possible, but elsewhere including a requirement that the relevant conduct amounted in the circumstances at the time to an offence under international law.
I pause briefly to observe that the hybrid approach does not mean that the offences where the requirement is not specified can be prosecuted even if they did not amount at the time to offences under international law-quite the contrary. It is only because there can be no doubt that they were fully recognised as criminal in international law throughout the relevant period that the requirement is not needed to ensure that we comply with the legal principles applicable to retrospection. I make one last point on the subject. With the same caveat as to the need for the conduct to have constituted a criminal offence in the circumstances under international law, our amendments provide for the ancillary offences and other forms of liability in the 2001 Act also to be tracked back to 1991.
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